Upper Tribunal (Immigration and asylum chamber), 2020-09-16, JR/03376/2019
| Jurisdiction | UK Non-devolved |
| Date | 16 September 2020 |
| Published date | 23 September 2020 |
| Hearing Date | 31 October 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/03376/2019 |
JR/03376/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: JR/03376/2019
Judicial Review Decision Notice
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Heard at Field House |
|
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On 31 October 2019 |
16 September 2020 |
Before
MR JUSTICE DOVE
(SITTING AS AN UPPER TRIBUNAL JUDGE)
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
VICTORIA YIGA
Respondent
Representation:
For the Appellant: Ms N Quadi
For the Respondent: Mr J Anderson
DECISION AND REASONS
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The Applicant is a national of Uganda who came to the United Kingdom in 2002. Shortly after her arrival she made an unsuccessful claim for asylum and, having had her appeal against that decision dismissed, she became appeal rights exhausted in 2004. On the 25th August 2012 she contends that she entered into a marriage by proxy in Benin with a Mr Ayinde who is a French national. That marriage is the subject of dispute as will emerge below. It is evidenced by a marriage certificate and a letter from the Consulate of the Republic of Benin in London confirming its validity. The essence of the position, which is in truth more complex in its chronology, is that on the basis of her marriage to an EEA National the Applicant made an application for an EEA residence card. The date of that application is disputed, as is the question of whether or not it properly fell to be determined under the Immigration (European Economic Area) Regulations 2006 (the “2006” Regulations) or the Immigration (European Economic Area) Regulations 2016 (the “2016 Regulations”). In any event, the Applicant exercised her right of appeal under Regulation 36 of the 2016 Regulations, and the matter was listed for hearing on the 14th June 2018 before the First-tier Tribunal.
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On the 14th February 2018, prior to the hearing, the Applicant was removed from the UK. The hearing of the 14th June 2018 the case was adjourned with a view to enabling the Applicant to be present at the appeal hearing. The Applicant made an application for a visit visa to attend the UK. That application, which is the subject of this application for judicial review, was refused on the 5th October 2018. The reasons for the conclusion of the Entry Clearance Officer that he or she was not satisfied that the Applicant was genuinely seeking entry as a visitor were expressed in the following terms:
“You first entered the UK in 2002 and make an application to remain outside the rules on 7/6/2002 which was refused on 22/8/2002. You then appealed and then again before all appeal rights were exhausted on 4/8/2004. You then absconded until 3/1/2012 when you made further submissions which were rejected. There then followed four EEA spouse applications which were all rejected however before removal could take place you lodged a Judicial Review application which was rejected. Two further EEA spouse applications were made the last of which was rejected on 23/1/2017. Further submissions, made on 9/1/2018 were rejected and you were removed on 17/02/2018. Since then on 31/08/2018 you made a further JR challenge against the removal which was rejected and your final EEA spouse rejection was appealed against and has a new hearing date on 22/10/2018 following two adjournments. This hearing can take place in your absence and given the chronic failure on your part to adhere to UK Immigration Rules as outlined above I am not satisfied that you intend a short visit of one month as indicated.
I further note that you received medical treatment in the UK in 2016 at a time when you had no leave in the UK and state you did not pay therefore I am satisfied there is an NHS debt outstanding which would need to be paid before any future travel to the UK would be favourably considered.
Finally I note that the visit will cost £l500 however the only financial support document submitted is in your name but contains no credits and just one unsourced lump sum carried forward. As such I am not satisfied that such funds are genuinely available for your exclusive use or that you will be able to maintain and accommodate yourself for the duration of the visit without recourse to public funds.
You have produced no further documentary evidence of your personal and financial circumstances. I must take into account your personal and economic circumstances in Uganda when coming to my decision, however given the statements you have made and the documentary evidence you have presented to support your application I am not satisfied that your circumstances in Uganda, coupled with your reasons for wishing to travel to the United Kingdom, are such that you have sufficient intention to leave the United Kingdom at the end of your proposed visit.”
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It appears that the matter was listed before the First-tier Tribunal for a case management review hearing on the 22nd October 2018. At that hearing it was made known that the Appellant had made an application for entry clearance to return to the UK as a visitor and that this application had been refused without reference to the Immigration Judge's earlier direction that the matter should be adjourned to enable the Appellant to return to the UK and participate in her appeal. On the 4th December 2018 a lengthy letter was sent by the Respondent setting out the Respondent's position that there was no legal basis for requiring the Appellant to return to the UK for the purposes of the hearing of her appeal. The First-tier Tribunal rescheduled the appeal hearing for the 16th April 2019. Although questions were raised as to whether or not that hearing should be adjourned, it nevertheless proceeded, and the First-tier Tribunal Judge gave the following directions:
“It is understood the Appellant has been refused entry clearance to attend any hearing. The Appellant's solicitors are forthwith to confirm to the Respondent and the tribunal what, if any, action the Appellant is taking in relation to direction 1 above.
If no action is taken the matter will be listed for a substantive hearing of all issues. This is not a deportation case so AJ (s94B: Kyarie and Byndloss questions) (2018) UKUT 115 (IAC) will have no application.
Application can be made to the Tribunal for permission for the Appellant to give evidence by electronic means. The Respondent is forthwith to file and serve all documentary evidence to support the several allegations made in the reason for refusal.
A response to the letter of 9 December 2016 from the Benin Consul in London about the validity of the Appellant's Marriage or Skeleton argument why the Tribunal should not accept it at face value.
The Appellant is forthwith to file and serve an expert opinion on the validity of her marriage under Benin Law.”
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Following the issuing of the directions the Applicant gave instructions for these proceedings by way of judicial review to be pursued. A pre-action protocol letter was sent to the Respondent on the 13th May 2019 and proceedings were commenced on the 21st June 2019. Permission to apply for judicial review and an extension of time was granted by Deputy Upper Tribunal Judge McGeachy on the 26th July 2019. The application as originally formulated was pleaded as a single ground. Within that ground a number of submissions were advanced. Firstly, it was contended that the wrong regulations had been applied in refusing the application for an EEA residence card: the application should have been considered under the 2006 Regulations and not the 2016 Regulations. Secondly, it was contended that the marriage which the Applicant had entered into was valid under the law of Benin. Thirdly, it was contended that, although the Applicant's relationship with her husband had broken down, she was nevertheless entitled to have the application for an EEA residence card granted under the 2006 Regulations. In respect of attendance at the hearing, paragraph 20 of the Applicant's pleadings stated that it was submitted “that the Applicant is entitled by law to attend her appeal hearing”. Furthermore, in paragraph 23 it was submitted “that the Defendant's refusal to grant the Claimant entry clearance to attend her hearing was arbitrary and not in accordance with the law”.
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It is clear from the documentation that there were extensions of time granted for the filing of the detailed grounds of defence on two occasions. The original deadline for the provision of this document was the 9th September 2019, but that was extended, firstly, to the 30th September 2019, and then to the 8th October 2019, bearing in mind that the hearing had been listed for the 3 1 October 2019. Thereafter on the 30th October 2019, the day prior to the hearing, a consolidated trial bundle and a skeleton argument was filed and served. A witness statement was provided from the Applicant at the same time dated 25th October 2019. At the hearing, for reasons which are set out below, procedural issues were raised by the Respondent in addition to the substantive hearings raised in the judicial review.
Procedural issues
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Nothing which follows should be taken as any reflection upon either counsel who appeared in this case, and indeed I am greatly indebted to both of them for their careful and focused written and oral submissions. In particular Ms Quadri was instructed...
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