Ait-Rabah, R (on the application of) v The Secretary of State for the Home Department [2016] EWHC 1099

 

Deception defeats  a claim for unlawful detention

 

In Ait-Rabah, R (on the application of) v The Secretary of State for the Home Department [2016] EWHC 1099, the following issues arose:

Having entered the UK on a family visit for  6months, the Claimant, an Algerian  national made use of that  visa  several times.  On 1 1 January 2016, the Claimant   entered the UK   with a Slovakian EEA  national relying on the visit visa.  The Claimant  had   however already   started an on- line  relationship  with the EEA national  and had met her on 3 February 2015  in Slovakia.  He had been granted   his visit visa  on 27 September 2015 but made no mention of the EEA national  when he visited the UK  in October 2015. At that time he proposed to her and she accepted him. The claimant   returned to Algeria  and arrived back in the UK  on 19 December 2015 where he  remained  living with his cousin. On 5 January 2016 he travelled to Slovakia with the EEA national . He returned  to the UK on 11 January 2016 relying on his visit visa accompanied  by the EEA national, however he did not  inform the immigration officer at Luton Airport  of this fact. Instead he informed the immigration officer that    he intended to return to Algeria  on 12 January 2016 as per his return ticket.

Later that month, in January 2016,  the Claimant and the EEA national gave notice of their intention to marry at Hillingdon Registry Office. The Registrar referred the proposed marriage to the Secretary of State for the Home Department who decided to investigate the marriage pursuant to section 48 of the Immigration Act 2014.  On 10 March 2016, the claimant attended Home Office premises with  the EEA national  for a marriage interview. Immediately thereafter he was served with a notice of an immigration decision, on form RED.0001, indicating that his leave to enter had been revoked. He was subject to immediate administrative detention. He was served with reasons for that detention and notice of his bail rights.

Judicial review proceedings   were commenced   challenging the legality of his detention.  It was also sought to  challenge the decision to revoke the Claimant’s leave to enter and to declare him an illegal entrant. It was also argued that the decision making process on 10 March  2016  was flawed by procedural impropriety. The  Claimant had made an application for leave to remain in the United Kingdom as an unmarried partner of an EEA national. That application was made, on 9 March 2016, the day before the marriage interview.  It was argued  that the decision to detain could not lawfully be made without proper consideration of that application.

In  the Court’s  judgment, two important issues of fact arise for decision. First, did the Claimant genuinely intend to leave the UK the day after he arrived? And second, was it his intention on 11 January 2016 to remain in the UK long-term? In the Court’s view,   the Claimant’s  answer to the question about how long he intended to remain in the UK after his entry on 11 January was entirely disingenuous. Whilst he held a ticket back to Algeria for 12 January, it was  highly unlikely that on 11 January 2016, he had any intention of using it.  It  seemed equally clear that in January 2016 the Claimant’s real intention was to make his home in the UK with  the EEA  national. It  was  plain from the history that by the latter part of 2015, the Claimant and  the EEA national  had formed a firm intention to marry and a firm intention to settle in the UK. He had arranged, or helped to arrange, her move to the UK, her employment here and her accommodation with his cousin. She had accepted his proposal in October. They had entered a tenancy agreement for a property together. And he made it clear repeatedly to the Immigration Officer that he intended “to make England our home“. In  the Court’s judgment, that was the purpose which  the EEA national  and the Claimant were pursuing when they arrived at Luton Airport.

The Court  was also satisfied that had the Claimant given an honest answer to the question, “how long are you going to stay in the UK“, entry would have been refused, in accordance with the Immigration Rules. In those circumstances, the Home Office were justified in concluding that entry on 11 January 2016 had been obtained by deception and that they were, on the facts, correct in that conclusion.

The Court noted that it was said that the marriage interview was conducted in breach of Home Office Guidance and in a wholly inappropriate manner by an Immigration Officer.  The officer  had asked the Claimant whether he and the EEA national  had had sex. The  Court stated that  no doubt, certainly in the majority of cases, that to ask a couple at a marriage interview about the details of their sex life would be unjustified and unnecessary. But to enquire simply whether their relationship was or was not a sexual one may well be both pertinent and necessary to an interview about the genuineness of a relationship. The answer to such a question is unlikely to be decisive either way, but it may well be relevant. In  the Court’s judgment, the Home Office policy does not prevent such a question; what it is aimed at is the asking of unnecessary questions about the details of their sexual relationship.

Further,  in the Court’s judgment, in relation to the application  that had been made on 9 March 2016,   the proper analysis was  that the application as an EEA national had not yet been determined. The Home Office was entitled to a little time to consider the merits of that application.

In relation to the argument  advanced by reference to   EEA law, the Court stated that in the absence of either a decision by the Secretary of State on the EEA application or any submissions from the Claimant as to the proper construction of the Regulations, it  was the Court’s view that the Claimant  was not a family member of  the EEA national  within the definition of that term in Regulation 7 of the EEA 2006 Regulations. He was  not her spouse, her civil partner, her dependant or a member of her extended family.

The Court  stated that the  argument advanced on behalf of the Claimant that his detention was  in breach of Article 5  was, in  the Court’s judgment, hopeless. It added nothing to the challenge under domestic law. Subject only to the pending EEA application, the Claimant was  plainly removable from the UK forthwith. There was no obvious reason why the EEA application should not be decided by the Secretary of State immediately. Applying the well-known principles set out in ex parte Hardial Singh [1984] 1 WLR 704 and Lumba v SSHD [2011] UKSC 12, it could  safely be concluded, in those circumstances, that there was  a sufficient prospect of removal of the Claimant to justify his current detention.

The substantive relief  that the Claimant sought was  therefore refused.

 

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Secretary of Statefor the Home Department v KG (India) [2016] EWCA Civ 477

 

There is no room  for  the  “ near miss” or de minimus  principle in the  context  of  the Points Based System  and the Immigration Rules

 

 The  case of Secretary of State for the Home Department v KG (India) [2016] EWCA Civ 477  proceeded as follows:

The appeal concerned  the application of the principle de minimus non curat lex (the law does not concern itself with trivial things, or trifles) to the Immigration Rules. The argument for the Secretary of State was  that there was no room for the application of that principle in this case, both as a matter of law and on the facts.

KG’s  application   for leave to remain  as a Tier 2 (General) Migrant  had been refused by the Secretary of State on the basis that the particular occupation code required an annual salary of £21,176 based on a 37.5 hour week employment. KG’s Certificate of Sponsorship however confirmed this salary was paid for a 39 hour week. This led to a shortfall in KG’s  income of £22.15 per annum.

The First-tier Tribunal  Judge accepted there was  no ‘near-miss’ principle applicable to the Immigration Rules, however in reliance on certain observations in Miah and ors v Secretary of State for the Home Department [2012] EWCA Civ 261, he said there is a distinction to be drawn between the concept of a ‘near-miss’ and the de minimis principle and that KG’s failure to meet the annual salary requirements of the Immigration Rules was indeed de minimus on the facts. The Upper Tribunal found no error of law in the First-tier Tribunal’s determination. It said the First-tier Tribunal’s decision, which was careful to draw a distinction between a ‘near-miss’ and an utterly trivial shortfall, was properly reasoned and correct. The Secretary of State appealed  to the Court of Appeal.

The Court of Appeal observed that, the relevant rules, identify precise criteria or requirements that  KG  had to satisfy before points could be awarded to her under the Points Based Scheme. Plainly, as a matter of arithmetic, KG had not satisfied the precise criteria specified for the “appropriate salary”, because her salary was not at or above the appropriate rate. It was below it. KG did not therefore have the “appropriate salary”, and it inexorably followed in  the Court‘s  judgment that she was not entitled to be awarded the relevant “appropriate salary” points under the Points Based Scheme.

The purported application of the principle of de minimis in this context was inapt or misplaced. The rule KG  had to comply with was a “bright line” rule, where the answer to the relevant question – whether the prospective salary was at or above the minimum rate specified in the Codes of Practice – was only capable of a “Yes” or “No” answer.  The Court of Appeal stated that it must be taken that Parliament intended the rule to mean what it said; and as a matter of construction, there was no room for an implication that anything short of the specified amount was sufficient to satisfy the requirement. The First Tier Tribunal judge failed to have regard to the importance of certainty and consistency which underpins the effective and fair operation of the Points Based Scheme as between one applicant and another; and the requirement, of which those attributes are an important part, that the Scheme must be workable. These considerations would in  the Court’s  judgment inevitably be undermined by an ad hoc application of the de minimis principle, by the individual case worker (or Immigration Judge) as the case may be.

It was noted that the First-tier Tribunal judge said, correctly, that it is clear that in the context of the Points Based Scheme there is no room for the ‘near-miss’ principle: Miah and ors v Secretary of State for the Home Department [2012] EWCA Civ 261,  paragraph  26 and Secretary of State for the Home Department v Raju [2013] EWCA Civ 754 at paragraph  12.  In  the Court’s  judgment  in KG, however, in relation to the “bright line” rules being  considered, the de minimis principle is no more than the ‘near-miss’ principle under a different guise.

The Court of Appeal  considered that rightly, the considerations which persuaded the court in Miah, that there was no room for the application of a ‘near-miss’ principle to the Immigration Rules, applied with equal force in the circumstances of the present case.

KG had therefore not complied with the requisite rule; and she could not be awarded the points for “Appropriate Salary” under the Points Based Scheme. The Secretary of State was accordingly entitled to refuse her application for leave to remain in the United Kingdom as a Tier 2 (General) Migrant, and to make directions for her removal from the United Kingdom.

 

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Gedi, R (On the Application Of) v Secretary of State for Home Department [2016] EWCA Civ 409

 

 A case where the  Home Office  had no  power  to impose a condition  of curfew

 

In Gedi, R (On the Application Of) v Secretary of State for Home Department [2016] EWCA Civ 409, the  Court of Appeal  considered the following:

The  case concerned  the power of the Secretary of State for the Home Department  and her immigration officials to impose conditions of curfew and electronic monitoring on those who have been released from immigration detention pending the conclusion of deportation proceedings. The considerations  turned on the terms of the legislation.

The relevant legislative framework included:

• Section  32  of the UK Borders Act: Section 36(1), detention   pending the making  of a deportation order and section 36(2), detention  where a deportation order is made.

• Schedule 3 of the Immigration Act 1971.  Paragraph 2 provides for recommendations for deportation by the court and by notice. It also provides at 2(3) that where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom and if already detained shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise.  Schedule 2, paragraph 22 provides that an individual who is detained may be released on bail by a Chief Immigration Officer or the First Tier Tribunal  and goes on at sub-paragraph 2 to provide for the conditions that may be attached to a grant of bail. Paragraph 2(5)-(6) of Schedule 3, insofar as is relevant, provides for the type of restrictions that may be imposed on a foreign criminal liable to be detained pending the Secretary of State  making a deportation order under paragraph 2(1), where the foreign criminal has been informed of a decision to make a deportation order under paragraph 2(2), and, where a deportation order is in force against him, under paragraph 2(3). The restrictions are that a person shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by the Secretary of State.

• The gravity of compliance with bail conditions is underlined by the creation of a criminal offence in Section  24(1)(e) of the 1971 Act.

• Section 36 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 provides for electronic monitoring.  A “residence restriction” means a restriction as to residence. Where a residence restriction is imposed on an adult he may be required to cooperate with electronic monitoring, and failure to comply with a requirement   shall be treated for all purposes of the Immigration Acts as failure to observe the residence restriction. Where a reporting restriction could be imposed on an adult  he may instead be required to cooperate with electronic monitoring, and the requirement shall be treated for all purposes of the Immigration Acts as a reporting restriction. Immigration bail may be granted to an adult subject to a requirement that he cooperate with electronic monitoring; and the requirement may (but need not) be imposed as a condition of a recognizance.

For the appellant, was  advanced both a “narrow” and a “broad case”.  The broad case challenged the legality of the imposition of a curfew under Section 36 of the 2004 Act and paragraph  2(5) of Schedule 3 to the 1971 Act. The narrow case assumed that the Secretary of State   had power to impose curfews under those provisions. However,  it was submitted that the curfew here was unlawful because it had not been imposed as a condition of bail, either by the First Tier Tribunal  or the Chief Immigration officer  or, at the least, there was no documentation which showed that it had.

It was argued that as a matter of reality, on 26 April 2103, the Secretary of State  (or someone on her behalf as evidenced by the instructions to the appellant from the monitoring company) had purported to impose a curfew. It had not, however, been imposed as a condition of granting bail by the First Tier Tribunal   or the Chief immigration office. The bail granted by the First Tier Tribunal  had included a provision to “live and sleep” at a specified address but no more. It was the monitoring company only that informed the appellant of the curfew.

The  Court of Appeals stated as to the narrow case that it  was significant, as already noted, that the Secretary of  State ‘s original stance, relying on Section 36 of the 2004 Act, failed before the Judge. Further and as made clear, it had been assumed that the imposition of a curfew was a condition of residence associated directly with and intrinsically linked to the imposition of a tag; accordingly, a “formal request” to the First Tier Tribunal to impose a curfew as a condition of bail did not need to be made. Against this background, it was  hardly surprising that there was  no documentary evidence of either the First Tier Tribunal  or the Chief Immigration Officer  imposing a curfew as a condition of bail. This was  a defect which was  fatal to the position of the Secretary of  State  in this case.

Turning to  the  broad case, the issue turned  on whether a curfew can, in law, be imposed under paragraph  2(5) of Schedule 3 of the 1971 Act.  The Court did  not accept that a right to impose a “restriction as to residence” under paragraph 2(5) of Schedule 3 to the 1971 Act necessarily incorporates a right to impose a curfew.

The Court came to the conclusion that the imposition of a curfew on the  appellant had no statutory justification over the entire period that he was subject to it.  So far as concerned paragraph 2(5) of Schedule 3 to the 1971 Act, a right to impose a “restriction as to residence” does not necessarily incorporate a right to impose a curfew. Whether, in appropriate circumstances and by the appropriate authority, a curfew might have been imposed as a condition of bail under paragraph 22(2) of Schedule 2 to the 1971 Act does not arise for decision (if it is in dispute) because  the Court was  not satisfied that the curfew to which the appellant was subject was, in fact, imposed as a condition of bail either by the Chief Immigration Office  or the First Tier Tribunal.

The Court of Appeal  allowed the  appeal on the grounds both that no sufficient authority to impose the curfew had been evidenced and that neither Section 36 of the 2004 Act nor paragraph 2(5) of Schedule 3 to the 1971 Act justify the imposition of a curfew.