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Celik, the EUSS and human rights: without the Respondent’s consent the First-tier Tribunal Judge could not consider any Article 8 arguments in an EUSS appeal

Posted on by Standard Reply

“The Withdrawal Agreement lies at the heart of this case. It is therefore necessary to examine, in some detail, how the Withdrawal Agreement applies to a person, such as the appellant, who was (or may have been) in a durable relationship, prior to 31 December 2020, with an EU citizen but who did not marry the EU citizen until after that time”, paragraph 44 of Celik (EU exit, marriage, human rights) [2022] UKUT 220 (IAC) (19 July 2022)

The case of  Batool & Ors (other family members: EU exit) [2022] UKUT 219 (IAC) (19 July 2022), amongst other matters, effectively provides for the definition of family members and other (or extended) family members within the meaning of Article  2.2 and 3.2 of Directive 2004/38/EC when considering an EUSS appeal. In particular, the fact that extended family members did not enjoy automatic residence rights under EU law and had to be the beneficiary of a positive exercise of discretion, recognised by the grant of residence documentation, is relevant to ascertaining the point from which they can establish they retain/preserve their rights of residence thus enabling them to rely upon the EU Settlement Scheme (“EUSS”).

Background

The Appellant, a citizen of Turkey, arrived in the United Kingdom in September 2007 and claimed asylum. The claim was refused, as was a subsequent appeal. His claim having been refused and appeal rights exhausted, since 8 April 2019 the appellant remained unlawfully in the United Kingdom.

The Appellant began a relationship with a Romanian national in December 2019. The couple began cohabiting sometime in or after February 2020. On 10 March 2020 the Romanian national was granted limited leave to remain in the United Kingdom, pursuant to Appendix EU of the Immigration Rules.

Having made an application on 19 October 2020, for leave to remain under the EUSS the Respondent refused the application on 2 March 2021 on the basis that the appellant had not been issued with a registration certificate, family permit or residence card under the Immigration (European Economic Area (Regulations) 2016 as an extended family member (durable partner) of the Romanian  national; he therefore did not meet the requirements of the EUSS as a family member of a relevant EEA citizen. The appellant did not appeal against that decision.

On 20 October 2020, the Appellant made contact with Bracknell Forest Council’s Register Office, in order to secure a date for his wedding. On that date, the Appellant gave notice to the Register Office and paid them a fee of £50.  The Appellant stated that it was  due to Covid-19 restrictions and the lockdown rules which were in place at the time  that he and his fiancée,  were not given the date to get married before  31 December 2020. They only managed to get a date to get married on 9 April 2021.

Following his marriage, the Appellant made an application under the EU Settlement Scheme for leave to remain, on the basis that he was the spouse of a relevant EEA citizen. On 23 June 2021, the Respondent refused the Appellant’s application.

Application refused as a spouse and as a durable partner under the EU Settlement Scheme:

The Respondent within the refusal decision considered that the Appellant had, “not provided sufficient evidence to confirm that you were a family member of a relevant EEA citizen prior to the specified date, as defined in Annex 1 of Appendix EU (i.e. 2300 GMT on 31 December 2020). Your marriage certificate shows your marriage took place on 9 April 2021”.

The Respondent then considered whether the appellant met the eligibility requirements for settled status under the EU Settlement Scheme as a durable partner. Home Office records did not show that the Appellant had been issued with a family permit or residence card as the durable partner of the EEA national. Accordingly, the Respondent concluded that the Appellant did not meet the requirements for settled status under the EU Settlement Scheme.

On appeal, the Appellant’s appeal was dismissed by the First Tier Tribunal. His application for permission to appeal was granted to be heard in the Upper Tribunal.

Arguments raised by the Appellant

Amongst other arguments it was contended on the Appellant’s behalf:

  • the grounds of appeal permitted by regulation 8 of the Immigration( Citizens’ Rights Appeals) (EU Exit) Regulations 2020, the 2020 Regulations, entitled the Appellant to succeed, if he could demonstrate that the decision in his case was not a proportionate one.
  • the appellant was undoubtedly an applicant within the meaning of Article 18 of the Withdrawal Agreement and, accordingly, the First-tier Tribunal Judge was required to consider proportionality.
  • The sole effective reason why the appellant was refused limited leave to remain under paragraph EU14 of the Immigration Rules was that he married his wife after 11pm on 31 December 2020. By reason of Article 18(1)(r), the First-tier Tribunal Judge should have had regard to what was said to be the “undisputed facts and circumstances”, that the appellant’s marriage could not take place before the specified date, due to the Covid-19 pandemic and the resulting public emergency, all of which was beyond his control.
  • the principle of proportionality facilitates a deeper exploration of the fairness of the decision. On the facts, the appellant had a strong legal and moral case and it would be “staggeringly unjust” if he could not benefit from the EUSS, in all the circumstances.
  • If, contrary to the submissions, the appellant was unable to succeed as the spouse of an EU citizen, he should qualify as a durable partner. The suggestion that, in order to be durable, the relationship must have existed for at least two years is merely a “rule of thumb”: YB (EEA Reg 17(4), proper approach) Ivory Coast [2008] UKAIT 00062 (IAC). Furthermore, the definition of “durable partner” in Appendix EU expressly allows for a shorter period of residence if there is “other significant evidence of the durable relationship”.
  • there were such other significant evidence in the present case. The Appellant and his wife had provided considerable evidence of the durability of the relationship through witness statements, a tenancy Agreement, council tax bills, utility bills, photographs and letters of support. The fact that the couple continued to cohabit, as evidenced in utility bills etc from April to June 2022 is, significant evidence that the relationship was at all times durable.
  • The First-tier Tribunal Judge was wrong to hold, that the grounds of appeal in regulation 8 do not allow for an appeal to be advanced on human rights grounds. The Appellant has a family life with his wife and her daughter (now his stepdaughter); and that the undoubted interference with that life caused by the Respondent’s decision is a breach of Article 8 of the ECHR and Article 7 of the Charter of Fundamental Rights.

Applicable provisions- the Withdrawal Agreement:

The Upper Tribunal generally had this to say regarding the Withdrawal Agreement:

  • Article 126 provides for a transition period, which started on the day of the entry into force of the Withdrawal Agreement and ended at 23:00 hours GMT on 31 December 2020. During that period, EU law continued to apply in the United Kingdom. Thereafter, Article 4 provides for individuals to rely directly on the provisions of the Withdrawal Agreement, which meet the conditions for direct effect under EU law. In accordance with Article 4, the Withdrawal Agreement is given direct effect in the United Kingdom by section 7A of the European Union (Withdrawal) Act 2018.
  • Part 2 of the Withdrawal Agreement makes provision in relation to citizens’ rights. Article 10 sets out who is within scope of Part 2. That Part includes Article 18, upon which the appellant sought to rely.
  • “Family members “are defined in Article 9. The opening words of the definition of “family members” also require the person concerned to “fall within the personal scope provided for in Article 10” of the Withdrawal Agreement.
  • Article 10.2 and 10.3. provides: “2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with Article 3(2) of that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter” and “3.Paragraph 2 shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter”.
  • Article 3(2) of Directive 2004/38/EC requires Member States to “facilitate entry and residence” for “any other family members” who are dependents or members of the household of the Union citizen; or where serious health grounds strictly require the personal care of the family member by the Union citizen. A person is also within Article 3.2 if they are a “partner with whom the Union citizen has a durable relationship, duly attested”. For such persons, the host Member State is required to “undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”.

As regards principles of EU law, the Upper Tribunal stated:

“69. We have earlier set out paragraph 73 of Mr Hawkin’s skeleton argument. At risk of repetition, we agree with Ms Smyth that the appellant cannot have regard to EU principles of law, the Citizens Rights Directive or the Charter of Fundamental Rights, except to the extent that this is required by the Withdrawal Agreement. In the present case, that Agreement does not require or permit a court or tribunal to do so. Directive 2004/38/EC no longer applies in the United Kingdom, as a general matter. The Charter of Fundamental Rights no longer applies: section 5(4) of the EU (Withdrawal Act 2018). Although part of “Union law” for the purposes of the Withdrawal Agreement, the Charter does not apply generally”.

Appellant not within scope of the Withdrawal Agreement -not a family member nor durable partner

The Upper Tribunal provided the following reasons why they considered the Appellant was not caught by the provisions of the Withdrawal Agreement:

  • The Appellant was not a family member to whom Part 2 of the Withdrawal Agreement applies. He was not a person who, in the words of Article 10.1(e)(i), resided in the United Kingdom in accordance with Union law before 11pm on 31 December 2020 and who continues to reside here afterwards. Nor does he fall within the scope of Article 10.1(e)(ii) or (iii).
  • The only way the Appellant could bring himself within the scope of Part 2 and, thus, Article 18, was if he fell within Article 10.2( set out above).
  • There can be no doubt that the Appellant’s residence in the United Kingdom was not facilitated by the Respondent before 11pm on 31 December 2020. It was not enough that the Appellant may, by that time, have been in a durable relationship with the person whom he married in 2021. Unlike spouses of EU citizens, extended family members enjoyed no right, as such, of residence under the EU free movement legislation. The rights of extended family members arose only upon their residence being facilitated by the respondent, as evidenced by the issue of a residence permit, registration certificate or a residence card: regulation 7(3) and regulation 7(5) of the 2016 Regulations.
  • If the appellant had applied for facilitation of entry and residence before the end of the transition period, Article 10.3 would have brought him within the scope of that Article, provided that such residence was being facilitated by the Respondent “in accordance with … national legislation thereafter”. This was not, however, the position. For an application to have been validly made in this regard, it needed to have been made in accordance with regulation 21 of the 2016 Regulations. That required an application to be submitted online, using the relevant pages of http://www.gov.uk, by post or in person, using the relevant application form specified by the respondent; and accompanied by the applicable fee.
  • After 30 June 2021, a favourable decision of the Respondent by reference to a pre-31 December 2020 application, results in a grant of leave under the EUSS, rather than a grant of residence documentation under the 2016 Regulations. The Appellant made no such application.
  • The above analysis was destructive of the Appellant’s ability to rely on the substance of Article 18.1. He had no right to call upon the Respondent to provide him with a document evidencing his “new residence status” arising from the Withdrawal Agreement because that Agreement gave him no such status. He was not within the terms of Article 10 and so could not show that he was a family member for the purposes of Article 18 or some other person residing in the United Kingdom in accordance with the conditions set out in Title II of Part 2.
  • The Appellant’s attempt to rely on his 2021 marriage to an EU citizen was misconceived. EU rights of free movement ended at 11pm on 31 December 2020, so far as the United Kingdom and the present EU Member States are concerned. The Withdrawal Agreement identifies large and important classes of persons whose positions in the host State are protected, following the end of the transition period. The appellant, however, did not fall within any such class.
  • It was not possible to invoke principles of EU law in interpreting the Withdrawal Agreement, save insofar as that Agreement specifically provides. This is apparent from Article 4(3). It is only the provisions of the Withdrawal Agreement which specifically refer to EU law or to concepts or provisions thereof which are to be interpreted in accordance with the methods and general principles of EU law. EU law does not apply more generally.
  • The clarity provided by Article 10 of the Withdrawal Agreement reflects the intention of the United Kingdom and the EU that the Agreement should ensure an orderly withdrawal of the UK; protect only those United Kingdom and EU citizens who were exercising free movement rights before a specific date (see the 6th recital); and provide legal certainty to citizens and economic operators as well as to judicial and administrative authorities (see the 7th recital).
  • Sub-paragraphs (a) to (d) of Article 18 make specific provision for late submission of an application for a new residence status. One looks in vain in Article 18 and elsewhere in the Withdrawal Agreement for anything to the effect that a person who did not meet the relevant requirements as at 11pm on 31 December 2020 can, nevertheless, be treated as meeting those requirements by reference to events occurring after that time. If that had been the intention of the United Kingdom and the EU, the Withdrawal Agreement would have so specified. Article 31 of the Vienna Convention on the Law of Treaties (1969) requires a treaty to be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. It would plainly be contrary to the Vienna Convention to interpret the Withdrawal Agreement in the way for which the appellant contends.

Principle of proportionality( or fairness) inapplicable in order to compel the Respondent to grant the Appellant leave:

The Upper Tribunal noted that the Appellant placed great reliance on Article 18.1(r) of the Withdrawal Agreement which gives a right for “the applicant” for new residence status to have access to judicial redress procedures, involving an examination of the legality of the decision as well as of the facts and circumstances on which the decision is based. These redress procedures must ensure that the decision “is not disproportionate”.

The Upper Tribunal concluded:

  • The nature of the duty to ensure that the decision is not disproportionate must, however, depend upon the particular facts and circumstances of the applicant. The requirement of proportionality may assume greater significance where, for example, the applicant contends that they were unsuccessful because the host State imposed unnecessary administrative burdens on them. By contrast, proportionality is highly unlikely to play any material role where, as here, the issue is whether the applicant falls within the scope of Article 18 at all.
  • there was no dispute as to the relevant facts. The appellant’s residence as a durable partner was not facilitated by the Respondent before the end of the transitional period. He did not apply for such facilitation before the end of that period. As a result, and to reiterate, he could not bring himself within the substance of Article 18.1
  • Against this background, the Appellant’s attempt to invoke the principle of proportionality in order to compel the Respondent to grant him leave amounted to nothing less than the remarkable proposition that the First-tier Tribunal Judge ought to have embarked on a judicial re-writing of the Withdrawal Agreement. The First-tier Tribunal Judge quite rightly refused to do so.
  • Closely linked to the Appellant’s submissions on proportionality was his attempt to invoke the principle of fairness. The Appellant’s case is that he would have secured a date for his wedding to take place before 31 December 2020, but for the Covid-19 pandemic. Although there was nothing in the exchanges with the Register Office that confirms this assertion, the Upper Tribunal took the appellant’s case at its highest and assumed that this was so.
  • The Upper Tribunal concluded that even on that assumption, however, the principle of fairness could not assist the appellant. As is the case with proportionality, it did not give a judge power to disregard the Withdrawal Agreement.

Whether the First-tier Tribunal has jurisdiction, in an EUSS appeal, to consider human rights:

The First-tier Tribunal Judge stated that she “refused to consider an Article 8 argument, no human rights case having been made and it not been an available ground of appeal under the 2020 Regulations”.

It was submitted that the Appellant clearly had a family life with his wife and stepdaughter and that the undoubted interference with that life, occasioned by the Respondent’s decision, is a disproportionate interference with Article 8 of the ECHR.

The Appellant sought to rely on regulation 9(4) of the Immigration( Citizens’ Rights Appeals) (EU Exit) Regulations 2020, the 2020 Regulations. This provides that the relevant authority may also consider any matter which it thinks relevant to the substance of the decision appealed against, including a matter arising after the date of the decision. The Upper Tribunal considered that the word “also” signifies that regulation 9(4) is an addition to the requirement on the relevant authority to consider a matter raised in response to a notice issued by the respondent under section 120 of the Nationality, Immigration and Asylum Act 2020. A matter raised in such a statement must be considered if it constitutes a specified ground of appeal; that is to say a ground under regulation 8 or a ground mentioned in section 84 of the 2002 Act (international protection/revocation of protection status/human rights).

Regulation 9(5), however, provides that the power conferred by regulation 9(4) is limited, in that the relevant authority “must not consider a new matter without the consent of the Secretary of State”. Regulation 9(6) provides that a matter is a “new matter” if, inter alia, “it constitutes a ground of appeal of a kind listed in regulation 8 or section 84 of the 2002 Act”.

The Upper Tribunal considered that the first question was to decide whether the First-tier Tribunal has jurisdiction, in an appeal of this kind, to consider human rights. The question arose because decision-making under residence scheme immigration rules (Appendix EU) does not involve a consideration of the applicant’s (or any other person’s) rights under Article 8 of the ECHR.

The Upper Tribunal concluded as follows:

“93. In order for regulation 9(4) to come into play, two requirements must be satisfied. There must be a “matter”, in the sense of being the factual substance of a claim: Mahmud (s.85 NIAA 2002 – ‘new matters’) [2017] UKUT 00488 (IAC) at paragraph 29. Second, the matter must be “relevant to the substance of the decision appealed against”. The interpretation of the words “relevant to the substance of the decision”, as found in section 85(4) of the 2002 Act, was considered by the Supreme Court in Patel & Others v SSHD [2013] UKSC 72; [2014] Imm AR 456. Giving the lead judgment, Lord Carnwath (with whom Lord Kerr, Lord Reed and Lord Hughes agreed) upheld the “wide” construction of the words, which had been taken by the majority of the Court of Appeal in AS (Afghanistan) v SSHD [2011] EWCA Civ 833; [2011] Imm AR 832. Under this approach, the substance of the decision appealed against is no more than the decision to refuse to grant or vary leave to enter or remain (or entry clearance) as opposed to, for example, a “decision to refuse to vary leave to remain under rule x” (Sullivan LJ at paragraph 113).

94.Transposed to regulation 9 of the 2020 Regulations, the “decision appealed against”, is, in the present case, the decision to refuse to grant the appellant leave to enter or remain generally, as opposed to a decision to refuse him leave to enter or remain under the EUSS rules specifically.

95.This means that regulation 9(4) confers a power on the First-tier Tribunal to consider a human rights ground, subject to the prohibition imposed by regulation 9(5) upon the Tribunal considering a new matter without the consent of the respondent.

96.Given what we have said about the nature of the respondent’s decision-making under Appendix EU, the raising of a human rights claim will always be a” new matter”, except where, for some reason, the respondent has already considered it.

97.In the present case, the respondent’s consent was not sought by the appellant, let alone given. As a result, even though the First-tier Tribunal Judge might have been mistaken as to the ambit of regulation 9(4), any error in this regard is immaterial. Since the respondent had not consented, the First-tier Tribunal Judge was prevented by regulation 9(5) from considering any Article 8 argument.

98.As the respondent submits, if the appellant now wishes to claim that he should be permitted to remain in the United Kingdom in reliance on Article 8, he can and should make the relevant application, accompanied by the appropriate fee”.

Conclusion

Only some few paragraphs in Celik are dedicated to considerations of whether the First-tier Tribunal has jurisdiction, in an EUSS appeal, to consider human rights.

The rest of the Upper Tribunal’s judgement relates to reasoning and conclusions as regards how the Appellant missed an opportunity to either marry his EU partner( who was based in the United Kingdom) by 31 December 2020 or submit an application as an extended family member( durable partner) by the said date. Having done neither by 31 December 2020 he was not caught by the provisions of the Withdrawal Agreement and his EUSS application of 2021 accordingly failed.

Accordingly as per the summary Headnote in Celik :

“(1) A person (P) in a durable relationship in the United Kingdom with an EU citizen has as such no substantive rights under the EU Withdrawal Agreement, unless P’s entry and residence were being facilitated before 11pm GMT on 31 December 2020 or P had applied for such facilitation before that time.

(2) Where P has no such substantive right, P cannot invoke the concept of proportionality in Article 18.1(r) of the Withdrawal Agreement or the principle of fairness, in order to succeed in an appeal under the Immigration (Citizens’ Rights) (EU Exit) Regulations 2020 (“the 2020 Regulations”). That includes the situation where it is likely that P would have been able to secure a date to marry the EU citizen before the time mentioned in paragraph (1) above, but for the Covid-19 pandemic.

(3) Regulation 9(4) of the 2020 Regulations confers a power on the First-tier Tribunal to consider a human rights ground of appeal, subject to the prohibition imposed by regulation 9(5) upon the Tribunal considering a new matter without the consent of the Secretary of State”.

The result in Celik unfortunately leaves quite a few affected individuals having to resort to Article 8 applications either by reference to Appendix FM or Article 8 ground outside the Rules having regard to Exceptional Circumstances – along with the need in most cases to make provision for exorbitant Home Office application fees.

 

 

 

Sham marriages, Marriages Of Convenience, Abuse Of Rights And Fraud: UK Government Approach to Tackling Circumvention of Immigration Laws

Posted on by Standard Reply

Spouses or partners wishing to obtain leave to remain under the Immigration Rules,  leave  to remain outside the Immigration rules by reference to Article 8 of the ECHR or a right of residence as  non – EEA family members  of EEA nationals,  can alike now  be subject to the tougher  approach by the Home office well before  their applications are even submitted.  The changes relate to the UK Government’s “strategy”  in relation to their  intention to tackle what they  consider to be sham marriages, marriages of convenience, abuse of rights  and fraud by applicants  considered to be seeking to  unlawfully obtain an immigration advantage.

On 24 November 2014,  the Minister for Immigration, James Brokenshire said in his ministerial statement.

“I am pleased to inform the House that, subject to Parliamentary approval of the necessary secondary legislation, I plan to implement important new provisions under part 4 of the Immigration Act 2014 to tackle sham marriages and civil partnerships on Monday 2 March 2015. Part 4 of the Act will give us a much stronger platform for effective, systematic action to disrupt and deter sham marriages and civil partnerships and prevent them gaining an immigration advantage..”

The currant raft of further new legislation  and  policy  Guidance by the Home Office  is  as if there  were  a sham marriage  behind in particular each  non –  EEA applicant  seeking  a right of residence under  EU law.

 SHAM MARRIAGES AND MARRIAGES OF CONVENIENCE

From 2 March 2015, the  definition  in the Immigration and Asylum Act 1999 was amended  by the 2014  Act. Under Sections 24 and 24A of the Immigration and Asylum Act 1999, as amended by section 55 of the Immigration Act 2014, a sham marriage or civil partnership is one in which:

  • one or both of the parties is not a British citizen or an EEA or Swiss national;
  • there is no genuine relationship between the parties;
  • either or both of the parties enter into the marriage or civil partnership for the purpose of circumventing (avoiding) UK immigration controls, including under the Immigration Rules or the Immigration (EEA) Regulations 2006

Entering into a sham marriage does not entitle migrants any right to remain or reside in the UK.

Recital 28 to the  Parent Directive   2004/38EC provides:

“(28) To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, Member States should have the possibility to adopt the necessary measures”.

The 2006 EEA Regulations provide in Regulation 2:

“civil partner” does not include— (a) a party to a civil partnership of convenience; or (b) the civil partner (“C”) of a person (“P”) where a spouse, civil partner or durable partner of C or P is already present in the United Kingdom”

“spouse” does not include— (a) a party to a marriage of convenience; or (b) the spouse (“S”) of a person (“P”) where a spouse, civil partner or durable partner of S or P is already present in the United Kingdom”

The Home Office Guidance, “Direct family members of European Economic Area (EEA) nationals v.3.0 published on 29 September 2015”, currently  provides from  page 54, the  4 stage test that is  applied  where  home office  caseworkers suspect the marriage or civil partnership is one of convenience.

The case of Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038(IAC) provides in its headnote:

“i) There is no burden at the outset of an application on a claimant to demonstrate that a marriage to an EEA national is not one of convenience.

  1. ii) IS (marriages of convenience) Serbia [2008] UKAIT 31 establishes only that there is an evidential burden on the claimant to address evidence justifying reasonable suspicion that the marriage is entered into for the predominant purpose of securing residence rights.

iii) The guidance of the EU Commission is noted and appended”.

 ABUSE OF  RIGHTS AND FRAUD

The current Home Office Guidance is , “ Abuse of rights, fraud and verification of EEA rights of residence v1.0 Valid from 27 January 2015”.

With effect from 1 January 2014, new enforcement powers were introduced into the EEA Regulations to tackle the abuse of free movement rights.

 EEA nationals can be administratively removed from the UK for the abuse of free movement rights or fraud where appropriate and proportionate under new regulation 19(3) (c). Abuse of rights includes:

  • participating in or facilitating a marriage of convenience
  • trying to fraudulently acquire residence rights
  • conduct designed to circumvent residence requirements, for example, exiting and re-entering the UK to re-set the initial unconditional 3 month period of residence

In addition, individuals involved in persistent low level offending cases as well as for serious offending will be considered for deportation by criminal casework.

Article 25 of the Parent Directive 2004/38/EC provides:

“Article 35

Abuse of rights

Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience.

Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31”

Regulation 21(B) of the EEA Regulations provides:

“Abuse of rights or fraud

21B. (1) The abuse of a right to reside includes—

(a)engaging in conduct which appears to be intended to circumvent the requirement to be a qualified person;

(b)attempting to enter the United Kingdom within 12 months of being removed pursuant to regulation 19(3)(a), where the person attempting to do so is unable to provide evidence that, upon re-entry to the United Kingdom, the conditions for any right to reside, other than the initial right of residence under regulation 13, will be met;

(c)entering, attempting to enter or assisting another person to enter or attempt to enter, a marriage or civil partnership of convenience; or

(d)fraudulently obtaining or attempting to obtain, or assisting another to obtain or attempt to obtain, a right to reside.

(2) The Secretary of State may take an EEA decision on the grounds of abuse of rights where there are reasonable grounds to suspect the abuse of a right to reside and it is proportionate to do so.

(3) Where these Regulations provide that an EEA decision taken on the grounds of abuse in the preceding twelve months affects a person’s right to reside, the person who is the subject of that decision may apply to the Secretary of State to have the effect of that decision set aside on grounds that there has been a material change in the circumstances which justified that decision.

(4) An application under paragraph (3) may only be made whilst the applicant is outside the United Kingdom.

(5) This regulation may not be invoked systematically. (6) In this regulation, “a right to reside” means a right to reside under these Regulations”.

There must be reasonable grounds to suspect the fraud and abuse and the decision must be proportionate.

Persons who are removed under Regulation 19(3)(a) and who seek to re-enter the UK within 12 months of that removal, must demonstrate they will be a qualified person upon-re-entry to the UK. Regulation 21B(1)(b) forces EEA nationals to show they would be a qualified person upon re-entry.  An EEA national who fails to show that they would be a qualified person immediately upon re-entry can be refused admission to the UK.

Regulation 21B(1)(c) extends this  power so an EEA decision can be made if there are reasonable grounds to suspect a person has either entered; attempted to enter, or  assisted another person to enter or attempt to enter, a marriage of convenience.  This applies equally to EEA nationals. In these instances any removal action would be taken under Regulation 19(3)(c). There must be reasonable grounds to suspect the fraud and abuse and the decision must be proportionate.

Regulation 21B(1)(d) includes a person who has fraudulently obtained; attempted to obtain, or assisted another to obtain a right to reside. This is intended to prevent someone benefiting from or relying on a fraudulently obtained right of residence. Examples of this could include:

  • Misrepresentation of European Economic Area (EEA) nationality. For example using a false passport or identity card to claim they are an EEA national to gain a right of residence.
  • Falsified evidence of relationship. For example using a fake marriage certificate to claim to be the spouse of an EEA national.
  • Falsified evidence of the exercise of free movement rights. For example, using fraudulent wage slips or bank statements as evidence to show they are a worker or self-sufficient person in the UK.
  • Misrepresentation of facts which go towards any qualifying criteria. For example, claiming to have permission to work for Croatian nationals.
  • Falsified EEA documentation. For example, using a forged registration certificate or residence card as evidence of a right of residence when those rights do not, in fact, exist.

The Home Office consider that the following indicators may be present where a person is attempting to enter into a marriage with an EEA national that is not genuine:

  • significant cultural difference;
  •  significant age difference;
  •  the parties cannot speak the same language;
  •  the parties have poor immigration histories, including a history of deception and previous fraudulent attempts to gain leave to remain (this can include asylum claims);
  •  there is no evidence of previous cohabitation;
  •  there is evidence to suggest one party is already married.

In cases where the Home Office have reasonable grounds to suspect the marriage is not genuine, it may be necessary to conduct an interview to verify an  applicant’s claim.

When considering if a decision will be proportionate, the home office consider the following:

  • The level of fraud or abuse. For example. How severe was the fraud or abuse?;
  • To what degree did the person benefit from the fraud? ;
  • What degree of involvement or knowledge did that person have in the fraud or abuse?;
  • The personal circumstances of the person. For example: -are they in a state of poor health?
  • -How long have they resided in the UK?
  • The decision being taken against that person. For example: -Is the decision to remove a person from the UK? The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013 were amended on 1 January 2014 to include provision at regulation 20B for the Secretary of State to draw a factual conclusion and refuse or revoke documentation, or remove a person, if they have failed to meet this regulation. Regulation 20B(1) applies where the home office have reasonable doubt a person has a right to reside under Regulation 14(1) or 14(2), or want to check the eligibility of a person to apply for documentation under the regulations. Where regulation 20B(1) applies, the home office can invite a person to provide evidence to support the existence of a right to reside, or provide evidence to support an application for documentation, or attend an interview. If without good reason a person fails to provide the additional information asked for or fails to attend an interview on two occasions, the Home Office may draw a factual conclusion about that person’s entitlement to reside in the UK. The Home Office may only draw the conclusion that, on the balance of probabilities, the person does not have, or has ceased to have, a right to reside if there is other evidence to suggest the person does not have a right to reside.
  • -Is this a decision to refuse or revoke documentation? Or

The EEA Regulations already contain terms for a non- European Economic Area (EEA) national who has entered into a marriage of convenience with an EEA national to:

  •  have an application for documentation refused;
  •  have any existing documentation revoked, and
  •  be administratively removed from the UK.

Non-EEA nationals who have entered into a marriage of convenience must be treated as a normal immigration offender under the Immigration Rules unless the person has already been issued a document under the regulations as the spouse of an EEA national. If a document has been issued, the non-EEA national must be considered under the regulations. Removal action can be taken under regulation 19(3)(a) and/or 19(3)(c).  Non-EEA nationals who try to enter into a marriage of convenience with an EEA national can be treated as normal immigration offenders under the Immigration Rules, as they have not yet validly contracted the marriage.  If there are reasonable grounds to suspect a person has assisted another person to enter into a marriage of convenience, then regulation 21B(c) gives  the home office power to make an EEA decision against that person. EEA nationals who have entered, tried to enter or helped another person to enter a marriage of convenience can also be removed from the UK under regulation 19(3)(c).

RELEVANT CRIMINAL OFFENCES

The most relevant Home Office Guidance Policy is “Criminal investigation: sham marriage, v1.0 Published for Home Office staff on 19 August 2015”.

Throughout the UK there are 3 main prosecuting authorities for criminal matters relating to all immigration crime:

  • The Crown Prosecution Service (CPS) – responsible for all cases in England and Wales. The CPS is responsible for prosecuting criminal cases involving sham marriages investigated by law enforcement agencies in England and Wales;
  • The Crown Office and Procurator Fiscal Service (COPFS) – Scotland’s prosecution service;
  • The Public Prosecution Service for Northern Ireland (PPS)

The main types of offences relating to sham marriages are:

  • Facilitation (assisting people to enter the UK illegally):

Section 25 of the Immigration Act 1971 creates an offence of assisting unlawful immigration, known as facilitation. The offence was substituted by section 143 of the Nationality, Immigration and Asylum Act 2002. This covers any act facilitating a breach of immigration law by a non-EU citizen including a breach of another member state’s immigration law.

Under section 25(1) an offence is committed when a person does an act which facilitates a breach of immigration law by an individual who is not a citizen of the European Union; knows or has reasonable cause for believing that the act facilitates a breach of immigration law by the individual;  knows or has reasonable cause for believing that the individual is not a citizen of the European Union.

The offence includes assisting someone to remain in the UK by deception. For example by entering into a sham marriage or other forms of assistance which facilitate a breach of the immigration laws.

Section 30(1) of the UK Borders Act 2007 covers acts committed in the UK, regardless of the nationality of the perpetrator (person committing the crime) as well as acts committed overseas.

Facilitation is an either-way offence which means this offence can be tried summarily in the magistrates’ court or on indictment in the Crown court and the maximum sentence on indictment is 14 years’ imprisonment. It is also a ‘lifestyle offence’ under schedule 2 of the Proceeds of Crime Act 2002.

  • Conspiracy to facilitate:

The Home Office are required to consider whether others also involved or playing a part in the sham marriage may have committed the offence of conspiracy to facilitate. These might include a vicar presiding over a sham marriage, parties to the sham marriage (including witnesses or wedding guests) or organised crime groups either in the UK or abroad.

Home Office caseworkers are required to  consider conspiracy to facilitate charges under Section 1A of the Criminal Law Act 1977. This is because the Home Office believe that  it is common in sham marriages for the non-EEA spouse to have to conspire with and pay the fixer or organiser for the marriage  and arranged spouse to carry out the unlawful act.  Those involved in the offence are  considered to be treated equally and fairly as both face potential maximum sentences of up to 14 years

In cases involving sham marriages it may be possible to prosecute the European Economic Area (EEA) spouse for either conspiracy to facilitate or a simple offence of seeking to avoid enforcement action.

When a conspiracy takes place inside England and Wales, they can be charged with conspiracy contrary to Section 1 of the Criminal Law Act 1977.

When a conspiracy takes place outside England and Wales and a person residing in England and Wales becomes a party to the agreement, they can be charged with conspiracy contrary to Section 1(1) of the Criminal Law Act 1977.

  • Deception

In sham marriage cases, the non EEA national is considered to be  fraudulently seeking confirmation of a right, conferred under EU law, which can ultimately lead to them being issued an EEA residence card for an initial period of 5 years. This gives them all the rights and entitlements given under EU law and could eventually lead to permanent residence and British citizenship. They  are  therefore not seeking any form of leave to remain.  When a person marries an EEA national they do not get leave to remain in the UK. They are automatically entitled to apply for a residence card.  For this reason the Home office consider that the offence must be ‘secures or seeks to secure the avoidance, postponement or revocation of enforcement action by deception, contrary to Section 24A (1) (b) of the Immigration Act 1971’.

When a foreign national marries a British national in a sham marriage and subsequently applies for leave to remain in the UK, the offence under consideration must be ‘obtains or seeks to obtain leave to enter or remain in the UK by deception, contrary to section 24A (1) (a) of the Immigration Act 1971.

  • Bigamy

If there is evidence either the EEA national or the non-EEA national was already married at the time their marriage in the UK took place, and the earlier marriage had not ended in divorce or been annulled, then the marriage is bigamous. In such cases the home office  consider the offence of bigamy either as a standalone offence or alongside other offences such as conspiracy to facilitate.

Reference to Offences Against the Person Act 1861 Bigamy or Section 24A (1) of the Marriage (Scotland) 1977  is also relevant.

  • Perjury

Involved persons  can be charged with perjury.

Other Offences:

There are also offences available under the Civil Partnership Act 2004:

  • In England and Wales, Section 32: offences relating to Registrar General’s Licence,
  • Section 33: offences relating to the recording of civil partnerships,
  • Section 80: false statements with reference to civil partnerships

REFERRAL AND INVESTIGATION SCHEME

The current    home office Guidance is “Immigration Act 2014 Marriage and civil partnership referral and investigation scheme: statutory guidance for Home Office staff, March 2015”.

The relevant Regulations are:

  • Proposed Marriages and Civil Partnerships (Meaning of Exempt Persons and Notice) Regulations 2015 (S.I. 2015/122);
  • Referral of Proposed Marriages and Civil Partnerships Regulations 2015 (S.I. 2015/123);
  • Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc) Regulations 2015 (S.I. 2015/397)

The Home Office believe that Part 4 of the Immigration Act 2014 reforms the process for giving notice of marriage or civil partnership to give the Home Office a much stronger platform for effective, systematic action to disrupt and deter sham marriages and civil partnerships and prevent participants from gaining an immigration advantage.

  • Extension of Notice Period from 15days to 28days:

From 2 March 2015, the 2014 Act extended the marriage and civil partnership notice period from 15 days to 28 days for all couples in England and Wales marrying following civil preliminaries or forming a civil partnership, and requires all couples involving a non-European Economic Area (non-EEA) national who wish to marry in the Anglican Church in England and Wales to complete civil preliminaries and give notice at a register office and be subject to the 28-day notice period.

  • Introduction of Referral and Investigation Scheme:

 From 2 March 2015, the 2014 Act, together with secondary legislation for Scotland and Northern Ireland, also introduced a referral and investigation scheme for proposed marriages and civil partnerships across the UK involving a non-EEA national who could benefit in immigration terms. All proposed marriages and civil partnerships in the UK involving a non-EEA national with limited or no immigration status in the UK, or who does not provide specified evidence that they are exempt from the scheme, are to be referred to the Secretary of State by the registration official.

 Where the Secretary of State has reasonable grounds to suspect a sham and at least one of the parties is not exempt from the scheme, she may decide to investigate whether the marriage or civil partnership is a sham. Notification of that decision to the relevant registration official will have the effect of extending the notice period from 28 days to 70 days, which will allow the Home Office to investigate and take appropriate enforcement or casework action where a sham is established. A couple will be unable to get married or enter into a civil partnership on the basis of that notice if they do not comply with an investigation under the scheme.

  • Registration Officer’s Section 24 or 24A Report:

Registration officers are required to submit a section 24 or 24A report if, at any stage in the process, they have reasonable suspicions that the marriage or a civil partnership will be or is a sham. A report can be made at any point from when initial contact is made at the Register Office to any time immediately after the marriage or civil partnership has taken place.

Schedule 6 to the Immigration Act 2014 provides registration officers in England and Wales with powers to share information or documents with the Home Office where they suspect that an immigration offence has been committed.

Where a registration officer comes into contact with a suspected immigration offender during the course of the marriage or civil partnership process or while registering a birth or death, they can report this to the Home Office.

  • The Investigation Decision under Section 48 of the 2014 Act  

Where a registration official refers a proposed marriage or civil partnership to the Secretary of State under the scheme, she must decide under section 48(2) of the 2014 Act whether to investigate whether the proposed marriage or civil partnership is a sham.

Under section 48(3) of the 2014 Act, the Secretary of State may not decide to investigate whether a proposed marriage or civil partnership referred under the scheme is a sham unless conditions A and B are met. Condition A is met if the Secretary of State is satisfied that only one or neither of the parties to the proposed marriage or civil partnership is an exempt person.  Condition B is met if the Secretary of State has reasonable grounds for suspecting that the proposed marriage or civil partnership is a sham.

Condition A is met if the Secretary of State is satisfied that only one or neither of the parties to the proposed marriage or civil partnership is an exempt person as clarified in  Section 49(1) of the 2014 Act.

Under section 49(1) of the 2014 Act, an exempt person is

  • a relevant national, i.e. under section 62(1) is a British citizen or an EEA or Swiss national;
  • has the appropriate immigration status, i.e. under section 49(2):
  • has an EU right of permanent residence in the UK;
  • is exempt from immigration control, as defined in paragraph 3 of the Proposed Marriages and Civil Partnerships (Meaning of Exempt Persons and Notice) Regulations 2015 (S.I. 2015/122), e.g. has the right of abode in the UK under section 2(1)(b) of the Immigration Act 1971, is a member of a diplomatic mission or their family member, or is a member of HM forces or of Commonwealth forces undergoing training or visiting forces;
  • is settled in the UK within the meaning of section 33(2A) of the Immigration Act 1971, i.e. has Indefinite Leave to Enter or Indefinite Leave to Remain;
  • holds a relevant visa in respect of the proposed marriage or civil partnership, as defined in paragraph 4 of the Proposed Marriages and Civil Partnerships (Meaning of Exempt Persons and Notice) Regulations 2015 (S.I. 2015/122), i.e.a marriage or civil partnership visitor visa granted under the Immigration Rules, a fiancé(e) or proposed civil partner visa or leave granted under or outside the Immigration Rules.

Condition B is met if the Secretary of State has reasonable grounds for suspecting that the proposed marriage or civil partnership is a sham.From 2 March 2015, the factors the home office will have regard to will include whether either party to the proposed marriage or civil partnership:

  • Is an immigration overstayer or absconder or otherwise in breach of the conditions of their leave.
  • Entered the UK illegally, or has been removed from the UK and should not be here.
  • Has been convicted of a criminal offence or there is other evidence of links to criminality.
  • Is recorded as deceased.
  • Is currently or has previously been the subject of a section 24/24A report.
  • Has previously obtained leave, or sought to do so, on the basis of deception or of false or forged documents.
  • Has an outstanding immigration application based on their relationship with another spouse/partner, or has previously sponsored, or been sponsored by, another spouse/partner to come to or remain in the UK. This factor may also be linked to a previous marriage or civil partnership which, if not dissolved, would be a legal barrier to the proposed marriage or civil partnership of which the relevant registration official should be informed by the Home Office.
  • Has a factor(s) in their immigration history which, based on a current analysis of immigration intelligence, casework and enforcement operations drawn up and quality assured according to Director General-approved procedures, otherwise gives rise to a reasonable ground to suspect that the proposed marriage or civil partnership may be a sham.
  • Where the Home Office identifies that a proposed marriage or civil partnership involves an immigration offender, it may take appropriate enforcement action against that person, whether or not there are reasonable grounds for suspecting that the proposed marriage or civil partnership is a sham and whether or not it decides to investigate the proposed marriage or civil partnership under the scheme.
  • Investigation

Where the decision maker is satisfied that only one or neither of the parties to the proposed marriage or civil partnership is an exempt person, i.e. that condition A is met; and there are reasonable grounds for suspecting that the proposed marriage or civil partnership is a sham, i.e. that condition B is met, the decision maker may decide that the Home Office will investigate whether the proposed marriage or civil partnership is a sham. Notification of that decision to the relevant registration official will have the effect of extending the notice period from 28 days to 70 days.

Under Section 48 the decision maker must make the decision whether or not to investigate and give notice of that decision to both parties to the proposed marriage or civil partnership, and to the relevant registration official, within the 28-day notice period.

Under section 51(1) of the 2014 Act, where the Secretary of State decides to investigate whether a proposed marriage or civil partnership referred under the scheme is a sham, the notice of this decision given to both parties under section 48 will set out the requirements with which they must comply as part of the investigation and the consequences of not doing so.

In particular, that section 48 notice will set out the requirements with which the party must comply as part of the investigation, and it may specify how they must comply with them. The requirements which may be imposed are those specified in the Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc) Regulations 2015 (S.I. 2015/397).

In addition, where the Secretary of State decides to investigate whether a proposed marriage or civil partnership referred under the scheme is a sham, the section 48 notice of this decision given to both parties will inform them of the requirement to notify the Secretary of State of any change during the period of the investigation in the usual address of either party and to provide specified evidence of this. These requirements arise under paragraphs 8 and 9 of the Referral of Proposed Marriages and Civil Partnerships Regulations 2015 (for persons giving notice in England and Wales).

Where the Secretary of State decides under section 48 of the 2014 Act not to investigate whether a proposed marriage or civil partnership referred under the scheme is a sham, the section 48 notice given to both parties and the relevant registration official will enable the marriage or civil partnership to take place after the 28 day notice period, provided that the registration official is satisfied that there is no legal reason why they cannot issue or complete the required certificate or schedule.

A decision by the Secretary of State not to investigate a proposed marriage or civil partnership does not constitute a determination as to the genuineness of the relationship on which it is based. If the marriage or civil partnership takes place, any decision taken on an application under the Immigration Rules or the Immigration (European Economic Area) Regulations 2006 to stay in the UK which is made on the basis of the marriage or civil partnership will continue to involve an assessment by the Home Office of the genuineness of the couple’s relationship.

Where the Secretary of State decides to investigate whether a proposed marriage or civil partnership referred under the scheme is a sham, the investigation must be conducted in accordance with the Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc) Regulations 2015 (S.I. 2015/397).

When carrying out such an investigation on behalf of the Secretary of State, the investigation officer may make such enquiries as they think fit for the purpose of determining whether the proposed marriage or civil partnership is a sham.

The investigation will focus on the genuineness of the relevant parties’ relationship and on determining whether the proposed marriage or civil partnership is a sham. It will often involve the relevant parties being required to make an initial contact with the Home Office, to arrange an interview and/or provide further information or evidence.

The investigation officer is required to undertake a focused investigation to obtain information and evidence relevant to assessing the genuineness of the couple’s relationship and determining whether the proposed marriage or civil partnership is a sham.

An investigation into a proposed marriage or civil partnership may involve imposing one or more of the following requirement(s) on one or both of the relevant parties to provide information, evidence or photographs; to be interviewed in person at home; to be interviewed in person at Home Office premises in or outside the UK or while detained in the UK; to be interviewed by telephone, video-link or over the internet.

As part of an investigation the investigation officer may require a relevant party to be interviewed, on their own, together with the other relevant party, or both. Interviews must be conducted in a properly probing, but balanced way, with the questions directed to establishing whether the relevant parties are in a genuine relationship and whether their proposed marriage or civil partnership is a sham. The person conducting the interview will make a written record of it and will provide the party or parties interviewed with a copy of this record if they request it.

Under Regulation 15 of the Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc) Regulations 2015 (S.I. 2015/397), where the Secretary of State believes that a relevant party has failed to comply with a requirement of the investigation, the Secretary of State may give notice in writing to the relevant party.

Where a proposed marriage or civil partnership is subject to an investigation, under section 50(4) and (7) of the 2014 Act the Secretary of State must, within the 70-day notice period, decide whether or not each of the relevant parties has complied with the investigation (the “compliance question”) and give notice of that decision to both parties and to the registration official to whom the section 48 notice was given of the decision to investigate.

The decision maker may decide that a relevant party who fails, without reasonable excuse, to comply with a relevant requirement has not complied with the investigation- see section 50(11) of the 2014 Act,

The decision maker must decide, in the light of all the circumstances of the case and all the relevant information and guidance available to them, whether any reason or excuse given by either or both of the relevant parties for the failure by either or both of them to comply with a requirement notified to them constitutes a “reasonable excuse” for that non-compliance. Such a reasonable excuse may exist for example where there are compelling, compassionate reasons for failing to comply with the requirement; there are reasons beyond the control of the relevant parties which prevented them from complying with the requirement; there has been administrative failure by the Home Office.

Where the decision maker decides that both relevant parties have complied with the investigation, the decision maker must give notice of that decision to both relevant parties and the relevant registration official before the end of the 70-day notice period. If there is no legal reason why they may not do so, the registration official will be able, after the end of this period, to issue the relevant parties with the certificates or schedule that will enable them to marry or form a civil partnership.

Where the decision maker decides that one or both of the relevant parties have not complied with the investigation, they must give notice of that decision to both relevant parties and the relevant registration official before the end of the 70-day notice period. That notice must include a statement of the decision maker’s reasons for reaching that decision.

Where the investigation determines that the proposed marriage or civil partnership is a sham, the Home Office may where appropriate take an enforcement decision (e.g. curtailment, removal) against the non-EEA or EEA national(s) involved; refuse any application under the Immigration (European Economic Area) Regulations 2006 or the Immigration Rules which is based on the relationship in terms which will withstand any appeal or seek the prosecution of those involved in a criminal offence, e.g. perjury or facilitation of illegal immigration, by consultation with or reference to the relevant prosecuting authority.  Whether or not the investigation determines that the proposed marriage or civil partnership is a sham, the Home Office may take appropriate removal action against immigration overstayers or illegal entrants identified under the referral and investigation scheme.

EEA ADMINSTRATIVE REMOVAL

The current  Home Office Guidance is “Chapter 50 (EEA) – EEA Administrative Removal Version 8.2”.

An EEA national has an initial right of residence for three months beginning on the date on which he is admitted to the UK. During this three month period, an EEA national must not become an unreasonable burden on the social assistance system of the UK.  If an EEA national wishes to remain beyond this initial three month period, they must show they are exercising Treaty rights in the UK.  However, an EEA national can be removed from the UK during their initial three month period of residence on the grounds of abuse of rights or fraud. The  criteria for administrative  removals  is under Regulation 19(3)(c))

On 1 January 2014 the Home Office approach to the removal of EEA nationals changed. EEA nationals who are administratively removed for not exercising Treaty rights (under the current provisions) will not be able to re-enter the UK for twelve months following removal unless they can demonstrate that they will immediately be exercising Treaty rights upon re-entry. EEA nationals can now also be administratively removed from the UK for the abuse or fraud of EEA free movement rights (where appropriate and proportionate), namely: for participating in or facilitating a marriage of convenience, for trying to fraudulently acquire residence rights and for conduct designed to circumvent residence requirements.

An administrative removal may be undertaken against an EEA national or their direct family member in accordance with:

  • Regulation 19(3)(a) where there is evidence that the person never had, or has ceased to have, a right to reside under the EEA Regulations (e.g. where the EEA national is no longer a qualified person, or where a non-EEA national family member has ceased to be the family member of an EEA national), or
  • Regulation 19(3)(c) on the grounds of an abuse of rights under the EEA Regulations. Even if the EEA national has been in the UK for less than three months, or is otherwise exercising Treaty Rights. In serious cases of abuse it can apply to a person who has a permanent right of residence.

Both regulation 19(3)(a) and 19(3)(c) apply as if they were someone to whom section 10(1)(a) of the 1999 Act applies (EEA regulation 24(2) refers).

  • Removal of a person may proceed  under Regulation 19(3)(c) where there are reasonable grounds to suspect the abuse of free movement rights or fraud :
  • They have engaged in conduct which appears to be intended to circumvent the requirement to be a qualified person, or
  • They have entered into, attempted to enter into, or assisted another person to (attempt to) enter into a marriage of convenience, or
  • They have attempted to enter the United Kingdom within 12 months of being removed under regulation 19(3)(a) where the person attempting to do so is unable to provide evidence that, upon re-entry, the conditions for any right to reside, other than the initial right of residence, are met, or
  • They have fraudulently obtained, attempted to obtain or assisted the (attempted) fraudulent acquisition of a right to reside under the EEA Regulations, and
  • It is “proportionate” to proceed with removal given all the circumstances of the case.

Under EEA Regulations a ‘spouse’ does not include a party to a marriage of convenience, preventing non-EEA nationals from acquiring EU law rights directly from the marriage. However, they may have already obtained EU law rights outside of the marriage:

Genuine EU law rights but involved in abuse:

A non-EEA national who has acquired EU law rights through being a genuine family member of an EEA national who is exercising Treaty rights, or retaining rights under the EEA Regulations may be removed under Regulation 19(3)(c) in the same way as an EEA national if they meet the relevant criteria.

No genuine rights but has obtained residence card on the basis of a sham relationship:

If the Home Office has previously recognised someone as having an EEA right (even if that was on the basis of a sham relationship) a removal decision should be taken under regulation 19(3) (a) of the EEA Regulations. This will automatically invalidate the residence card at the same time. An appeal against removal under regulation 19(3) (with the exception of a decision taken on the grounds of public policy, public security or public health under 19(3)(b)) will suspend removal.

No Acquired rights:

Where a non-EEA national who has not acquired EU law rights enters into, or attempts to enter into, a marriage of convenience, they will become liable to removal.

Regulation 21B(1)(d) covers EEA nationals who fraudulently obtain, attempt to obtain or assist the fraudulent acquisition of, a right to reside under the EEA Regulations. Examples of this could include misrepresentation of EEA nationality (false passport or identity card); falsified evidence of relationship (fraudulent marriage/birth/divorce certificates etc); falsified evidence of the exercise of Treaty rights (for example, fraudulent wage slips, bank statements, letters confirming study, claims a person is self employed but HMRC checks confirm the person is not registered); misrepresentation of facts regarding any qualifying criteria (permission to work for Croatian nationals, permanent residence etc); falsified EEA documentation (registration certificate, residence card etc). Removal may proceed under Regulation 19(3)(c).

As regards appeal rights in non- EEA family cases,  the case of R (on the application of Bilal Ahmed) v Secretary of State for the Home Department (EEA/s 10 appeal rights: effect) IJR [2015] UKUT 00436 (IAC) provides in its headnote:

“(1) The fact that P (who is not an EEA national) has a  right of appeal under the Immigration (European Economic Area) Regulations 2006 against an EEA decision to refuse P a residence card does not have the effect of precluding the Secretary of State from removing P under section 10 of the Immigration and Asylum Act 1999.

(2)   Section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002 (as it was before the changes made by the Immigration Act 2014) does not afford P an in-country right of appeal against the section 10 decision, where the issue of whether P is a member of the family of an EEA national is a matter of dispute.

(3) The factual issue of whether P is a family member falls to be determined by the First-tier Tribunal on appeal by P against the EEA decision and/or the section 10 decision, whether or not P may by then be outside the United Kingdom. A judicial review by P of the decision to remove and/or the setting of removal directions will not succeed where P’s application is based on marriage to an EEA national, if the Secretary of State reasonably suspects P of being a party to a marriage of convenience”.

It is however understood the case is under appeal to the Court of Appeal  where permission to appeal has been granted.

NON- EEA ADMINSTRATIVE REMOVAL

The current Home Office Guidance is “Chapter 50 Liability to administrative removal under section 10 (non EEA)”.

From 6 April 2015, a person who requires, but does not have, leave to enter or remain in the United Kingdom is liable to removal 1Under section 10 of the 1999 Act, as amended by section 1 of the Immigration Act 2014.

Such a person must still be notified of their liability to removal. If a person is subject to enforcement action for breach of conditions or deception, their leave must be brought to an end to make them removable.

Immigration Enforcement should no longer serve IS151A, IS151A part 2 or IS151B from 6 April 2015. RED.0001, replaces forms IS151A, IS151A part 2 and IS151B from the previous removal system.

Removals under the EEA Regulations are not yet changing and forms IS151A (EEA) and IS151B (EEA) continue to be used.

A decision to refuse a protection (asylum or humanitarian protection) claim, a human rights claim or to revoke protection (asylum or humanitarian protection) status where the claim is not certified and the decision is made while the affected individual is in the UK now attracts an in-country right of appeal. This applies to all protection and human rights claims and decisions to revoke protection status decided on or after 6 April 2015, regardless of the date of application.  No other decision made on or after 6 April 2015  will attract a right of appeal except for  specified  transitional appeals.

There is no right of appeal against the refusal of an application for work or study (PBS) leave. (There are transitional arrangements where a Tier 4 application was made before 20 October 2014, or a Tier 1, 2 or 5 application before 2 March 2015). An unsuccessful applicant may apply for administrative review to challenge alleged case working errors.

There is no right of appeal or administrative review against a decision to curtail leave or against the service of notice of liability to removal where a person has no leave.

A person is liable to curtailment if deception is used in obtaining or seeking to obtained limited leave by deception.

CONCLUSION

The Home office in its approach to whether the marriage is a sham or one of convenience,  appears to be applying a blanket approach  when considering applications in particular  from non – EEA nationals married to EEA  spouses.  A family member may have previously  been  issued with a 5year residence card, however upon application for a permanent residence card, the home office is seeking to  interview  both parties  yet again even if there have been  children to  that marriage during the 5years.

Even first time applicants for residence cards,  having children with their  EEA spouses,  are being interviewed  with applications refused on the basis  that theirs is a marriage of convenience .  The  negative decisions are based upon  supposed  differing  responses to the same questions,   sometimes  with insignificant and irrelevant  questions being asked  within a marriage interview  of which even a  couple to a 30year  marriage  may  “ fail” such an interview.

The result of such refusals, occasioned by this new tougher approach, where genuine couples are caught  up  by  Home  Office paranoia, is  an even further  clogging up of a currently labouring  Tribunal system  with unnecessary appeals and  even more  unnecessary anxiety for genuinely  married  couples.