UPDATE: Permission to appeal to the Court of Appeal seems to have been granted:

Sales LJ grants permission to appeal from UT's recent decision in Bilal Ahmed) (EEA/s 10 appeal rights: effect) IJR: http://t.co/fbQLhZpxZq

— Zane Malik QC (@ZaneMalikQC) October 9, 2015

On 24 July 2015 the Upper Tribunal handed down a curious judgment on in-country appeal rights where the Home Office claims that an EEA national has entered into a sham marriage. Judges Storey and Lane, both senior and experienced members of the Upper Tribunal, came to a rather odd decision: where the Secretary of State claims a reasonable suspicion that the third country national spouse of an EEA national (exercising Treaty rights in the UK) has entered into a sham marriage he or she is no longer a spouse under the EEA regulations and thus gets no in country appeal right. The exclusion is apparently based on Reg 2 EEA Regulations which states that a ‘spouse’ does not include a party to a marriage of convenience.

No corresponding provision exists in the Citizens Directive which the Regulations purport to transpose faithfully. As the person is no longer a spouse because he or she has been accused of entering into a sham marriage, he or she is no longer entitled to an in country appeal right as EU law no longer applies. Thus the spouse can be removed from the UK without breaching EU law.

The decision is rather meandering and seeks to differentiate two previous decisions R(Abdullah) v SSHD [2009] EWHC 1771 and LO [2009] UKAIT 00034. There is a rather lot of UK legislation cited on various aspects of in and out of country appeal rights. The key problem with the judgment is that it accepts as valid in EU law the position that the third country national spouse of an EEA national exercising treaty rights can fall completely outside the protection of the Citizen’s Directive merely because the Secretary of State has decided that the marriage is one of convenience or a sham marriage. This is just plain wrong as it shifts the burden of proof to the applicant and withdraws EU procedural rights from the individual without any opportunity for a fair hearing of the issue of the sham marriage question before removal.

On the facts Mr Ahmed, a Pakistan national in the UK on a student visa married a Romanian national. After interviews with both parties separately the Secretary of State refused his application for a residence card on the basis that the marriage was one of convenience. His leave expired and he was detained and served with removal directions. The order of events is rather unfortunate as it appears that his application for an EEA residence card was refused after removal directions were issued. He sought judicial review of the removal directions and appealed against the refusal of the EEA residence permit application. The current decision relates to the removal directions.

The UT dismissed the applicant’s appeal on the basis that the decision-making challenged [the removal directions] was not unlawful. ‘The applicant had no legal entitlement to remain in the United Kingdom for the purpose of pursuing that appeal [the First–tier Tribunal appeal against refusal of the residence card]’ (para 44).

Why not? The Tribunal finds that there is no general right to an in-country appeal either under EU or UK law. On the Tribunal’s reading of Article 31(1) of the Citizen’s Directive[1] (which requires exactly such an appeal right for EEA nationals and their family members) it

‘has nothing whatsoever to say about a person who is not being expelled as a Union citizen or family member but who is appealing a decision that he or she is not such a family member.’ (para 28).

This is clearly mistaken. Someone who is appealing against a decision by the Home Office refusing his or her status as a spouse is obviously covered by the appeal right. The non-sequitur of the UT’s statement is astonishing – so long as the Home Office finds that the person is a spouse they have a right of appeal (but normally they do not need it as the application has been successful). But if the Home Office refuses the application then the person is not a spouse and so they do not get an in-country appeal right because the Home Office has said that they are not a spouse. In fact on this logic they probably do not need an appeal right at all under EU law as they have no claim under EU law according to this logic! This particularly flawed logic is pursued with gusto by the UT in paragraph 38 where it reverses entirely the burden of proof on the question whether Mr Ahmed is a spouse or not (notwithstanding the marriage certificate) and suggests that Mr Ahmed’s claim to be a spouse is no more than a claim ‘may be’ to be a spouse.

The Court of Justice of the European Union in a reference from the UK (to which the UT does not refer to at all) C-357/98 Yiadom [2000] ECR I-9265 is instructive. Although the judgment was about the scope of the appeal right under the predecessor Directive of the Citizen’s Directive, the finding is valid not least as the CJEU has held that the newer Directive extends rights but in no way diminishes them, thus the precedent jurisprudence is still valid.[2] In Yiodom where the Home Office subjected a Dutch national to temporary admission and refused her an appeal right because she had been involved in facilitating illegal entry of others

‘…the Directive requires Member States to provide for Member State nationals the same legal remedies in respect of a decision concerning entry, or refusing the issue or renewal of a residence permit, or ordering expulsion from the territory as are available to nationals of the State concerned in respect of acts of the administration.’ (para 28).

The UK sought, unsuccessfully, to argue in the case that as it determined that Ms Yiadom was not in the UK though physically present, she was not entitled to any procedural remedies in-country. This logic, transposed to Mr Ahmed’s situation is the following – the UK argues that Mr Ahmed does not get an in-country appeal because it has decided that he is not a spouse of an EEA national notwithstanding the existence of a legal marriage certificate. It is paradoxical that the UT accuses the High Court and the Tribunal of decided otherwise in Abdullah and LO as either obiter or per incuriam yet this UT itself appears to be deciding per incuriam rather than the Tribunal in LO.

The correct course of action for the UT if it was in doubt about the in country appeal right for someone whom the Home Office held was only the spouse of an EEA national as a result of a marriage of convenience, if it were in any doubt about the necessity of such an in-country appeal right to give effect to the correct application of the burden of proof would have been to refer the question to the Court of Justice.

[1] ‘The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.’

[2] C-127/08 Metock [2008] ECR I-6241.