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A successful judicial review but a pyrrhic victory

26
Apr

A successful judicial review but a pyrrhic victory

On 20 December 2016, a German national exercising Treaty rights in the UK went with her Algerian fiancé to seek authority to marry.  They were requested to attend interviews at Eaton House (a Home Office building in the Hounslow area).  They had no idea what was coming.  They were interviewed individually and simultaneously and they each answered questions about themselves, about each other and about their relationship giving remarkably sound replies.  The German client was assured that she would be seeing her fiancé soon but instead he was detained in a removal centre next to Heathrow and given removal directions for the next 3 months.  Their application for permission to marry was refused on the grounds of an alleged failure to cooperate with the immigration process which was then clarified (if that is the appropriate word to use) by alleging that there were material discrepancies between the two interview records.  The fact that they went through the interview process shows that they did everything that they could in order to cooperate but it shows the poor quality of the decision making process which clients face on a daily basis.

Fortunately no steps were taken during the holiday break to remove the Algerian client although both he and his German fiancée were worried that this might happen.  He was also finding conditions in detention to be difficult to cope with and I had to remind him not to pay attention to the problems of his fellow detainees whose cases though similar were likely to be totally different to his.

I filed an application for EEA Permanent Residence for my German client exhibiting copious evidence of her economic activity over many years and for a residence card for her Algerian fiancé who had entered the UK unlawfully in 2013 but that is not relevant to an EEA application.  Once I had the recorded delivery receipt I applied for bail for the Algerian fiancé but in the meantime the Home Office issued him with removal directions for Friday 20 January so I had to apply for judicial review along with an emergency injunction.   I settled the application here in the office on Tuesday 17 January, issued it in person at Field House today, 18 January and by 3 pm today I had a decision from Upper Tribunal Judge Andrew Jordon staying the removal (which the Home Office subsequently deferred) and setting out his findings concerning the reasons given by the Home Office for refusing the application for leave to marry and for detaining the Algerian client.   We filed an application for bail on 12 January but this was not listed due to the imminent removal directions.

On the day before the bail hearing the Home Office faxed through their decision to refuse the application, probably the swiftest decision making process I have ever seen.   The Secretary of State has conducted a detailed review of the facts.  The refusal does not generate a right of appeal because it is not an “immigration decision” and here I refer to the decision of the Upper Tribunal in which the Vice President Mr Ockelton stated at para 84:

Although we have found the issue raised in this appeal a difficult one, we see no sustainable argument to deflect us from the natural meaning of the definition of an “EEA decision” in reg 2(1) point (b) that we identified earlier. A decision, taken by the Secretary of State in the exercise of her discretion, not to issue an EFM with a residence card under reg 17(4) is not a decision under the EEA Regulations 2006 which “concerns a person’s entitlement to be issued with” a residence card”. 

No decision means no right of appeal.  Mr Sala was actually issued with a residence card by the Secretary of State so he did not appeal the decision of Mr Ockelton to the Court of Appeal.  Until somebody takes that course of action, the only remedy is that of Judicial Review although that avenue is limited to an examination of the reasonableness of the decision itself, not an examination of the facts.  Our client’s EEA unmarried spouse declined to fund a judicial review application.

Not all is lost (at least at this stage) for unmarried spouses.   As the judgment points out at paragraph 82:

An individual may be issued with a ‘family permit’ under reg 12(2) as an EFM who is accompanying or joining an EEA national in the UK. Suppose a family permit is issued on the basis of a ‘durable relationship’ with that EEA national. On arrival in the UK, the individual is refused admission because the Immigration Officer concludes (perhaps on receipt of further evidence) that the relationship is not ‘durable’. The individual is “treated” as a “family member” of the EEA national once he is issued with the family permit (see reg 7(3)). Provided that he produces a valid passport; is accompanying or joining the EEA national; and the EEA national has a right to reside in the UK, he “must be admitted” to the UK (see reg 11(2) read with reg 19(2)(a)). The individual may appeal against that EEA decision to refuse him admission as it “concerns a person’s entitlement to be admitted to the United Kingdom” (see reg 2(1), point (a)).

Rexton Law can advise you on all aspects of EEA and non-EEA immigration law.

By Warren Grant

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