Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 33
P137/13	OPINION OF LORD STEWART in the Petition of S S A Petitioner; for Judicial Review of a Removal Notice in terms of the Immigration and Asylum Act 1999 s. 10 issued by the United Kingdom Border Agency on behalf of the Secretary of State for the Home Department on 30 January 2013, etcetera and Answers for The Secretary of State for the Home Department Respondent: ________________

Petitioner: Caskie; Drummond Miller LLP

Respondent: Webster, Macgregor; Office of the Solicitor for the Advocate General

13 February 2013

[1] This is a contested hearing on the application for first orders in an immigration judicial review petition. There is no difficulty about granting intimation and service of the petition and fixing a procedural hearing. The question is whether I should grant interim liberation so that the petitioner can be released from the Immigration Removal Centre at Dungavel pending the resolution of the substantive issue. The substantive issue is whether the petitioner is liable to be removed from the United Kingdom by virtue of a Notice of Removal issued in terms of section 10 of the Immigration and Asylum Act 1999.

[2] Having heard submissions on 12 February 2013 I reflected on matters overnight and delivered this opinion in court on 13 February 2013. I have decided that interim liberation should be granted, subject to conditions, on the basis that there is, on present information, a strong prima facie case and that the balance of convenience is not against the petitioner's release. I should explain that much of the information in the opinion that follows is based on representations made by counsel on each side, Mr Caskie for the petitioner and Mr Webster for the Secretary of State, though I cannot guarantee that I noted absolutely every detail correctly.

[3] The petitioner has an unimpressive immigration history. He is a Pakistani national. As at the date of his application for a United Kingdom visa he was resident in Pakistan and married, or so his visa application declared him to be. On a date in 2010 that has not been disclosed to me the petitioner entered the United Kingdom using a visitor visa. Counsel for the petitioner told me that the petitioner got divorced between the date of the application and the date of entry: but counsel also accepts, only and strictly for the purpose of this interim application, that the petitioner used verbal deception to gain entry to the United Kingdom. Notwithstanding the declared purpose of the visit, at some stage during his stay, between July and October 2010, the petitioner applied for a certificate of approval to marry a Latvian national, M S. He apparently claimed to be living with her at an address in Feltham, Middlesex. It seems that UKBA investigations disclosed that the petitioner could not have lived at the stated address in Feltham. The address was found to have been occupied by two British nationals who had been there for a number of years. (The petitioner has subsequently contested this allegation.) The application for a certificate of approval to marry was refused on 13 April 2011.

[4] I am told that the petitioner failed to keep an appointment with UKBA and absconded. He overstayed his visa.

[5] At some stage the petitioner arrived in Scotland. It appears that he married a Lithuanian woman A K on 15 November 2011 in Scotland. By that date the certificate of approval scheme had been abolished. Counsel told me that the celebrant in the Islamic ceremony was an imam who is a friend of the petitioner. At this stage of the present proceedings an extract of the marriage certificate has not been produced but it seems to be accepted all round that the marriage has been registered. Counsel told me that the petitioner must have satisfied the celebrant and the registrar that he was free to marry. That is a matter which may require to be followed up.

[6] The petitioner claims to have met A K "during the festival season 2010/2011" which I take to mean during the Christmas/ New Year period, in other words while his application for a certificate of approval in relation to M S remained under consideration. Counsel told me that the petitioner spent six years studying in Russia. He and A K apparently communicate with each other in Russian.

[7] Lithuania is an EU member state. On an undisclosed date the petitioner applied for a residence card as the spouse of an EU citizen who is exercising treaty rights as a worker in the United Kingdom. Counsel tells me that A K now presumably Mrs S S A works in Tesco. The application was refused on 14 June 2012. The petitioner appealed to the First‑tier Tribunal (Immigration and Asylum Chamber). By determination dated 27 August 2012, Immigration Judge Fiona Kempton allowed the appeal. She concluded [§ 17]:

"I am satisfied that the marriage is genuine and subsisting. In the circumstances, I am satisfied that the appellant meets the requirements of Regulation 7(1) of the Immigration (EEA) Regulations 2006. I consider that the appellant and Mrs [A K] are spouses for the purpose of the Regulations."

The petitioner's case is that, on the basis of the Immigration Judge's decision, unappealed, the Secretary of State was and is under a mandatory obligation to issue him with a residence card in terms of the Immigration (EEA) Regulations 2006 regs. 14 and 17. No further decision in relation to the residence card application, whether to grant the application or to refuse it, has yet been made by the Secretary of State.

[8] Part of the case presented by the petitioner to the Immigration Judge was that he and A K had cohabited at an address in Renfrew, since about October 2011. On or shortly before 30 January 2013 three Pakistani males resident at that address were detained by UKBA: two of the detainees were visa overstayers and one was an entrant by deception. The "deceptive" admitted to UKBA that he was attempting to make a sham marriage. At the request of the authorities the petitioner and his wife brought the passports of the detainees to the police station where the detainees were being detained. Officials of UKBA then took the opportunity to re‑interview the petitioner and to interview A K separately. Counsel for the respondent told me that the answers given were considered to be not credible; that A K showed no emotion in relation to the petitioner's subsequent detention; and that the petitioner showed no concern for A K. If I understand matters correctly A K stated that she slept in a separate room from the petitioner although there are only two rooms and four male Pakistani occupants including the petitioner.

[9] In the light of what was perceived to be res noviter or new matter adverse to the petitioner coming to the attention of the authorities, UKBA detained the petitioner on 30 January 2013 in terms of Notice to Detain [No 6/1 of Process] and served on him a Removal Notice in terms of the Immigration and Asylum Act 1999 s. 10 [No 6/2 of Process]. The petitioner is currently detained at Dungavel Immigration Removal Centre. The petitioner has lodged the present petition seeking to quash the Removal Notice of 30 January 2013 and seeking interim liberation from immigration detention.

[10] My decision at this stage, of necessity, has to be based on impression. I have formed the impression on the basis of the material available that, however implausible the petitioner's claim might seem to be to me and however unworthy of consideration such a claim ought to be in a well‑ordered polity, based as it apparently is on unlawful presence, the petitioner does have a strong prima facie case by virtue of the decision of Immigration Judge Kempton in terms of the law which currently applies in the United Kingdom. On the face of it, in my view, the petitioner's detention is unlawful and in breach of his right to respect for his family life in terms of ECHR art. 8.

[11] Counsel for the petitioner insists that the Removal Notice is flawed for the reason that it is expressed to be made under section 10 of the Immigration Act 1999 whereas, he submits, a third country national with family‑member rights in terms of the Immigration (European Economic Area) Regulations 2006 can be removed only under the provisions of the latter regulations. At the start of the hearing counsel for the respondent conceded that the petitioner has a prima facie case and stated that he intended to put his argument purely on the balance of convenience. During the hearing the concession was withdrawn and counsel submitted that a Community Law "right" acquired by deception or other unlawful means was not a right at all. It follows that there is an issue to be tried: but for the time being the petitioner is holding the judgment.

[12] Of course the Immigration Judge had to make her judgment on the material and submissions put before her. She gave no weight to the alleged deception surrounding the proposed marriage to M S for the reason that the officers who carried out the investigation were not adduced as witnesses; and she was not apparently addressed on the issue of whether rights under the Immigration (EEA) Regulations 2006 can be acquired by someone who should not be in the territory or who is in the territory by deception.

[13] Another complaint by UKBA is that the petitioner on his own admission has been working illegally. Normally in the case of an overstayer with a history of breaking the rules, alleged deception and absconding the balance of convenience would be firmly against interim liberation. This case is different in that it seems to be in the petitioner's interests not to abscond and instead to continue to collocate if not to cohabit with A K at the address where she resides in Renfrew. I accept what counsel for the petitioner says, namely that the risk of fabricating a collusive story between the petitioner and A K would not be significantly increased by liberation: she has apparently been to visit four times during the 10 days he has been in detention; and there is ample opportunity to learn the colour of each other's toothbrushes or whatever - I am indebted to petitioner's counsel for this illustration - during visitations if that is not something they already know.

[14] The substantive first hearing in these proceedings will not take place, I understand, for three or four months. Counsel for the petitioner was unable to say when a decision on the residence card application might be made. If the application is refused the petitioner would have a right of appeal to the First‑tier Tribunal so that even if the application is refused tomorrow it might be another two or three months before a judicial decision on the facts were made. All in all, while I am sceptical, I think the proper course is to allow interim liberation subject to residence and reporting conditions.