TC (Kenya) v Secretary of State for the Home Department

This is an appeal against a determination of the Asylum and Immigration Tribunal (“AIT”), promulgated on 16 August 2007, dismissing the appeal by TC (Kenya) from a decision of an immigration officer on 14 March 2006 to revoke the appellant’s EU residence document, to refuse him admission to the United Kingdom and to make provision for his removal. The basis of the decision was that the appellant’s marriage to Ms Ribeiro was “one of convenience only” and that he was not a family member of a qualified person. The appellant is a Kenyan national now aged 32. He entered the United Kingdom in January 1994 with leave to remain as a student until 30 September 1997. When that leave had expired he applied for asylum. That was refused on 23 February 2001.

The appellant married Ms Rosalina Ribeiro, a Portuguese national, on 2 November 2001. On the basis of that marriage to an EEA national, he was granted a five-year residence document in February 2002.

In February 2006 the appellant travelled to Kenya on business as he frequently had done in the intervening years. On his return to the United Kingdom on 11 March 2006 he was detained and questioned by the Immigration Service and on 14 March notice was given of a decision to revoke his residence document and remove him from the United Kingdom. An appeal to the Tribunal was dismissed on 10 May 2006 but on application to the Administrative Court the appeal was remitted to the AIT on the ground that there was a potential error of law in relation to whether the appellant’s marriage was of convenience.

On 16 August 2007 the appeal was dismissed. The Tribunal granted permission to appeal to this court. It is submitted that the Tribunal failed to take into account or misconstrued Article 35 of Directive 2004/3A/EC (“the 2004 Directive”) often described as the “Citizens Directive”. It is also submitted that the Tribunal failed properly to assess the evidence about the nature of the marriage and it is submitted that removal would, in any event, be a disproportionate interference with the appellant’s right to respect for his private and family life under Article 8 of the European Convention on Human Rights.

The 2004 Directive is essential a consolidating directive seeking to remedy what is described in paragraph 4 of its preamble as:

“this sector-by-sector, piecemeal approach to the right of free movement and residence.”

That was a reference to earlier directives, of which there had been several covering some of the same areas. The 2004 Directive came into force on the day of its publication, 30 April 2004 (Article 41) and required that it be transposed into domestic law by 30 April 2006 (Article 40). In the United Kingdom the 2004 Directive was transposed through the Immigration Economic Area Regulations 2006 (“the 2006 Regulations”), which came into force on 30 April 2006. Even though the decision of the respondent was made under the terms of the predecessor regulations to the 2006 Regulations, namely the Immigration European Economic Area Regulations 2000 (as amended), the Tribunal was required to, and did, treat the decision as if made under the 2006 Regulations (paragraph 4 of Schedule 4 to the 2006 Regulations) and consequently treated the appeal as if governed by the 2006 Regulations and the 2004 Directive.

The Directive refers specifically to marriages of convenience in a way that earlier directives had not. Preambular paragraph 28 provides:

“To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationship 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.”

Under the heading “General Provisions” Article 1 provides:

“This Directive lays down:

(a)

the conditions governing the exercise of the right of free movement and residence within the territory of Member States by Union citizens and their family members;

(b)

the right of permanent residence in the territory of the Member States for Union citizens and their family members;

(c)

the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.”

In Article 2 “Union citizen” is defined as “any person having the nationality of a Member State” and “family member” includes, by virtue of Article 22a, “the spouse”. Rights of exit and entry are set out in Chapter 2. Rights of residence followed in subsequent articles. Article 23 provides:

“Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there”.

Article 35, headed “Abuse of rights”, provides:

“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.”

For the appellant, Mr MacDonald QC has referred to earlier directives to establish the public policy, public security and public health basis for the limits placed on rights contained in the Citizens Directive. He does refer, and needs to refer in this case, only to public policy and public security. For example Article 10 of Directive 68/360/EC provides:

“Member States shall not derogate from the provisions of this Directive save on grounds of public policy, public security or public health.”

What the case is about, submits Mr MacDonald, is the safeguards available to a person against whom it is proposed to exercise the right conferred by Article 35, and transposed into the 2006 Regulations. His submission is that Article 35 must be read subject to Articles 27 and 28, which limit the circumstances in which the right of residence may be excluded. The articles appear in Chapter VI under the heading “Restrictions on the Right of Entry and the Right of Residence on Grounds of Public Policy, Public Security or Public Health.” Insofar as it need be referred to for present purposes Article 27 provides:

“1.

Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

2.

Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.”

Article 28, so far as reference need be made:

“1.

Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.

2.

The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.

3.

An expulsion decision may not be taken against Union citizens except if the decision is based on imperative grounds of public security as defined by Member States, if they:

(a)

have resided in the host Member State for the previous 10 years; or

(b)

are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.”

Mr MacDonald submits that the reference to proportionality in Article 35 incorporates the protections included in Articles 27 and 28. They do so either directly or via Articles 30 and 31. The right in Article 35 is subject to the “procedural safeguards”, as they are described, provided for in Articles 30 and 31. Article 30 provides for notification of decisions. Paragraph 2 provides:

“The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security.”

Article 31 provides:

“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.”

It is not submitted that there is a breach of either of those Articles. Indeed the appeal procedures have been followed but the submission is that the reference to the expressions “public policy” and “public security” in Article 30(2) lead inevitably to a finding that the whole of Articles 27 and 28 must be regarded as applying, and imposing limitations upon the Article 35 power.

Mr Eicke accepts that in construing the word “proportionate” in Article 35 some of the considerations set out, for example in Article 28(1), will be relevant but he submits that other provisions, for example those as to length of residence, are not incorporated and that is not the intention of Article 35. In reply Mr MacDonald submits that it is all or nothing. He submits that Article 35 must be read so as to include in their entirety the safeguards set out in Articles 27 and 28. It must be established that public policy requires the expulsion.

I am not able to read Article 35 in the manner for which Mr MacDonald contends. There was plain concern at the time the Directive was drafted about abuse of community rights and fraud, and marriages of convenience are singled out for express mention. The concern is expressed in preambular paragraph 28. It has also been expressed in the ECJ. In the case of Secretary of State for the Home Department v Akrich Case C-109/01 [2003] ECR I-9607 there was a reference for a ruling in relation to the freedom of workers and the effects of marriage. Questions were posed for the consideration of the court which envisaged a situation in which the national of a member state is married to a third-country national who does not qualify under national legislation to reside in that member state. Those questions were answered with the qualification in paragraph 58: “where the marriage is genuine” in paragraph 57, the court had stated:

“Conversely, there would be an abuse if the facilities afforded by Community law in favour of migrant workers and their spouses were invoked in the context of marriages of convenience entered into in order to circumvent the provisions relating to entry and residence of nationals of non-Member states.”

In their specific answers to the questions, the court stated, at paragraph 61, that the regulation considered in that case:

“is not applicable where the national of a Member state and the national of a non-Member state have entered into a marriage of convenience in order to circumvent the provisions relating to entry and residence of nationals of non-Member states.”

More recently, in R (on the application of Veli Tum and Mehmet Dari) v SSHD the second chamber of the Court in Case C-16/05 stated at paragraph 64:

That concern, which appears to me to be a matter both of public policy and of public security, is expressed in the preamble to the 2004 Directive and in Article 35. Marriages of convenience are singled out and dealt with expressly in what, in my view, is a self-contained article. The rights, including that enjoyed by the appellant by virtue of the certificate he has, may be terminated or withdrawn in the case of abuse of rights or fraud such as marriages of convenience, subject to the procedural safeguards in Articles 30 and 31 and to the principle of proportionality.

I note that Article 35 refers to “measures” which member states may adopt when using the word “proportionate”. It follows that those measures require proportionate treatment of cases arising. I accept the submission of Mr Eicke that, while some of the principles stated in Article 28 may well arise upon a consideration whether a decision is proportionate, the provisions of those Articles cannot, as such, and lock, stock and barrel, be incorporated into all or any Article 35 decisions. By way of construction of Article 35, I note the distinction between the absence of references to Articles 27 and 28 in the Article and its presence in Article 33, headed “Expulsion as a penalty or legal consequence”, which provides:

“1.

Expulsion orders may not be issued by the host Member State as a penalty or legal consequence of a custodial penalty, unless they conform to the requirements of Articles 27, 28 and 29.”

Further, the reference to Articles 30 and 31 in article 35 is by way of “procedural safeguards”. That is distinguishable from the substantive rights set out in Articles 27 and 28.

Taking a more general view, to construe Article 35 as worded in any other way would be to construe it contrary to the principles set out in the preamble and to the jurisprudence of the court, in particular in the case of Akrich to which I have referred. These points were not taken before the Tribunal. Mr MacDonald takes them now as demonstrating that, arguably through no fault of the Tribunal, an entirely wrong legal approach has been taken to the power conferred, through the 2006 Regulations, by Article 35. I am not able to accept that submission.

Mr MacDonald takes the further point that “proportionate”, as used in Article 35, has a meaning which is coloured by Articles 27 and 28 and does not mean the approach to proportionality which the court customarily adopts, for example on a consideration of Article 8(2) of the Human Rights Convention. He submits that decision makers must be careful not to include within considerations of proportionality in this context the deterrent factors which may be present elsewhere.

That approach does not find support in the case of Akrich. It was stated:

“58.

That said, where the marriage is genuine and where, on the return of the citizen of the Union to the Member State of which he is a national, his spouse, who is a national of a non-Member state and with whom he was living in the Member State which he is leaving, is not lawfully resident in the territory of the Member State, regard must be had to respect for family life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950… That right is among the fundamental rights which, according to the Court’s settled case-law, restated by the preamble to the Single European Act and by Article 6(2) EU are protected in the Community legal order.”

That suggests a similar approach to the concept of proportionality in a context such as the present as would be followed when it is applied in other areas of the law. There is a public interest in immigration control and it is, in my judgment, a major feature of the very public policy which the Citizens Directive is concerned to advance.

The above submissions were made by Mr MacDonald as points of law, without regard to the factual findings in the particular case. He takes other points and it is now necessary to refer to the findings of the Tribunal based on the evidence that they heard.

The appellant and Ms Rosalina Ribeiro, a Portuguese national, gave evidence before the Tribunal. They described the circumstances in which they had met. He claimed to have known her for about 11 months before their marriage in November 2001. The appellant travelled a good deal in the course of his work. He ran a substantial business, operating a security firm. He never supported Ms Ribeiro during the course of the marriage. It was accepted on both sides that, on any view, the marriage had by 2005 broken down. The Tribunal found:

“He [the appellant] had to travel to Kenya for the business at least three times a year. Each time he would stay for about one month. He spent about 40% of his time in Kenya.”

The Tribunal found that when the appellant was stopped at the airport he had not seen his wife since Christmas 2005. At interview the immigration officer recorded that the appellant did not know his wife’s telephone number. Ms Ribeiro gave evidence that she married the appellant because she loved him. He had never supported her or paid her maintenance. She relied on benefits and did not need his money. She did not think about the fact that he could only see her at weekends. They had talked about having children together but only in the future. It was submitted to the Tribunal on the appellant’s behalf that although the relationship had broken down the marriage had been a genuine one.

The Tribunal did not find either the appellant or Ms Ribeiro to be credible or reliable witnesses. There was also evidence from a relative and from friends about the affection which the appellant and Ms Ribeiro had shown each other and about the circumstances in which they had met and married.

When directing themselves as to the appropriate test to be applied, the Tribunal reminded themselves that there was no requirement for the parties to a marriage to cohabit and the subsequent breakdown of a marriage was not determinative of the initial intentions of the parties. It is on that second point that Dobbs J had doubts about the approach of the Tribunal on the first occasion.

In concluding that the marriage was one of convenience the Tribunal attached some weight to the parties never having shared a house. Ms Ribeiro had never intended to move to London where the appellant’s main business was. In finding that the marriage was a marriage of convenience the Tribunal commented that the appellant was a successful businessman and found that the total lack of financial support by him was not indicative of the mutual dependence of spouses in a genuine marriage. Further, apart from a short honeymoon the parties had never had holidays together. The Tribunal also relied on Ms Ribeiro’s vagueness, as they found it to be, about the extent of the appellant’s travels abroad.

The Tribunal also considered the sequence of events. The appellant’s permission to stay as a student had expired. His claim to asylum had failed. His application for a residence document was made within weeks of the marriage. The Tribunal accepted that the appellant had met Ms Ribeiro early in 2001 as they both claimed -- that is, ten months or so before they were married. The Tribunal stated: “There is no evidence as to the development of their relationship.”

The Tribunal’s conclusion is at paragraph 55:

“Having considered all the evidence in the round, we are satisfied to a high degree of probability that the appellant’s marriage was entered into solely for immigration purposes in order to extend his stay in the UK and not as confirmation of a genuine and committed relationship. We conclude that the respondent’s decision that the marriage was one of convenience was properly based on the evidence before him and in accordance with the law. We dismiss the appeal on immigration grounds.”

The Tribunal went on to consider the claim under Article 8. They referred to the case of Huang [2007] UKHL 11 and concluded at paragraph 58:

“We accept that the appellant has established a private life in the UK consisting of his business. He stated that he spends approximately 40% of his time in Kenya for the business and therefore we consider that any interference with his right to respect for his private life would be minimal. Balancing that interference against the respondent’s important public duty of maintaining an effective system of immigration control, we conclude that it is both justified and proportionate. We dismiss the appeal on human rights grounds.”

In relation to the findings as to marriage of convenience, Mr MacDonald has placed reliance on the brief way in which the evidence of the supporting witnesses was treated. They were not required on behalf of the respondent to give oral evidence or to be cross-examined and their statements stood as evidence in the case. He has also referred to the suggestion which had been made, with some success, at the earlier Tribunal hearing that the Tribunal’s consideration had been confined to later stages and not to the position at the time of the marriage. I do not accept that submission. The Tribunal plainly had in mind the correct test and referred in terms to the need to consider the position at the time the marriage was entered into. There is a challenge to the finding as to the time spent abroad. Reference has been made by Mr Eicke to the statement of the appellant that the finding was in my view justified.

I accept that the evidence of the supporting witnesses was dealt with very briefly and the question of its significance was not confronted in any detail. However, I do not consider the comment that there was no evidence as to the development of the relationship was an unfair comment. It appears to me to be one the Tribunal were entitled to make, having regard to the limited nature of the evidence.

In particular, the evidence must be seen in the context of the overall evidence and the Tribunal’s findings on other points. The Tribunal found a complete lack of financial support of Ms Ribeiro by a successful businessman. They made findings in relation to the very limited time that the parties to the marriage spent together and to the length of time which the appellant spent abroad, without any apparently compensating cohabitation while he was in this country. In the light of those findings, which in my view entirely justify the finding of the Tribunal about the nature of the marriage, limited supporting evidence coming from family and friends about the affection between the parties could not possibly have altered the result. The Tribunal took an overall view. They considered the evidence with some care and they were entitled to reach the conclusion they did.

As to Article 8, the Tribunal referred to the case of Huang. Any reliance on respect for family life would be inappropriate having regard to their other findings. There is no doubt that the appellant has established a life in the United Kingdom. Mr MacDonald invites the court to have regard to the length of residence including the time spent in the United Kingdom as a student.

In my judgment this Tribunal, which is an expert tribunal whose findings on such questions are entitled to respect, was entitled to reach the conclusion it did on proportionality and the application of Article 8(2). They acknowledged the test which was to be applied. They had regard to the circumstances of the appellant. In my judgment it was a finding they were fully entitled to make, that the United Kingdom is not in breach of its Article 8 duties in requiring the removal of the appellant.

For the reasons I have given I would dismiss this appeal.

I agree with the judgment of Pill LJ. I propose only to add some supplementary reasons with regard to the principal issue of law which is as to the test of proportionality in Article 35.

Mr MacDonald QC submits that the proportionality referred to in Article 35 means that the national measure must be proportionate on the grounds of public security and public policy, and thus that the Article 35 concept of proportionality is limited to public security and public policy in the same way that the grounds under Articles 27 and 28 are so limited. In my judgment this is not a correct interpretation of Article 35. It involves the addition of words and, as Pill LJ has pointed out, Article 35 appears in a separate chapter of the Directive from Articles 27 and 31.

The clear purpose of Article 35 is to give effect to recital 28 to the Directive which states that member states should have the possibility of adopting measures to guard against abuse of rights or fraud. That recital is not limited to public security or public health.

Article 35 does not itself use the words “public security” or “public health” nor does it in terms refer to Article 27 or 28. Articles 30 and 31 are not incorporated in their entirety but only as regards procedural safeguards. Those procedural safeguards are the notification of decisions in such manner that the addressee can comprehend the content and implications of the decision, notification of the grounds of a decision, an explanation as to rights of appeal, access to judicial or other appropriate procedures for review, interim protection, review on the grounds of legality and merits of proportionality and protection with respect to removal. Those are the procedural rights set out in Articles 30 and 31.

A restriction of a review on the grounds of proportionality so that a member state could only act proportionately on grounds of public security or public health is not a procedural safeguard. It is a substantive restriction on the grounds on which a decision can be taken. Mr MacDonald submits that his interpretation applies where an appellant has already obtained some right of residence as in this case before steps are taken to withdraw his rights. He distinguishes the case where a person is debarred from entering the country because of lack of entitlement. However, Article 35 specifically contemplates that rights can be withdrawn, and those rights include rights of residence. Moreover it is difficult to see any logical reason for the distinction Mr MacDonald withdraws. Since protection under Article 8 of the European Convention of Human Rights or its community equivalent is available in an appropriate case as a matter of the fundamental principles of community law, there would be no logical reason to provide procedural safeguards for persons who are here and not for persons who had not yet entered the country.

Moreover ex hypothesi a person who has been a party to a marriage of convenience has had his rights terminated and that is legitimately proved in law: see paragraph 61 of the Akrich decision of the Court of Justice, second indent. The person who is already resident here, against whom steps are taken on the grounds of a marriage convenience, has the protection of the Community law equivalent of Article 8. That protection is, of course, different from the protection conferred on persons under Articles 27 and 28 but those persons receive greater protection not simply because they have lived here longer but because their status was not acquired through an abuse of rights.

In summary, in my judgment, the measure under Article 35 must meet a more general requirement of proportionality than any measure under Articles 27 and 28. It must be proportionate to the abuse in question but it need not meet the heightened test of proportionality in Articles 27 and 28.

With these additional reasons, I agree with the judgment of Pill LJ and the order that he proposes.

To my mind the word “proportionate” in Article 35 of the Citizens Directive does not carry with it all the provisions set out in Articles 27 and 28 relating to public policy and public security. What is required is that any measure adopted must itself be proportionate. It is in my judgment proportionate to adopt a measure whereby an applicant should not be permitted to acquire the benefit of an immigration advantage merely by contracting a marriage of convenience. No doubt any decision to withdraw a residence permit or expel a person who has hitherto been legitimately present in the United Kingdom must also itself be a decision which is proportionate in all the circumstances but, like my Lord and my Lady, I agree that the decision of the Asylum and Immigration Tribunal in this case contained no error of law and I therefore agree that this appeal should be dismissed.