There has been a significant decision in the Inner House of the Court of Session – the Scottish equivalent to the Court of Appeal – on the Home Office’s use of language analysis for the determination of origin, or ‘LADO’. The decision allowing the two conjoined appeals both by a two to one majority, is available on the Court of Session’s own website at M.AB.N. and K.A.S.Y. v. The Advocate General for Scotland representing the Secretary of State for the Home Department  CSIH 68 (12 July 2013). The Home Office have (it is calculated) until 23rd August to decide whether to appeal to the Supreme Court, but the Inner House decision is significant and practitioners should be aware of it irrespective of whether there is any further appeal.
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Advocate General Bot has given his Opinion in the case referred to the Court of Justice of the European Union by President Mr Justice Blake. I have already flagged the new Opinion up on the blog but at the time had not had an opportunity to read it. That situation has now been rectified.
For those unfamiliar with the procedure, an Opinion precedes a judgment and the judgment usually follows the Opinion, at least in outcome if not in reasons.
The Advocate General advocates a middle ground position in terms of the obligation imposed on Member States by Article 3(2) of the Directive, but suggests that the Article must impose some sort of binding obligation and is not merely permissive:
In the minds of those who drafted it, that provision was therefore certainly conceived as a provision not in the order of wishful thinking, but, on the contrary, as a provision binding on the Member States, whatever the extent of the latitude which they are allowed … I accordingly take the view that Article 3(2) of Directive 2004/38 does not merely offer the Member States a possibility, but imposes on them an actual obligation to adopt the measures necessary to facilitate entry and residence for persons coming within the scope of that provision. The substance and precise scope of that obligation still remain to be determined.
On the question of whether the obligation is a procedural one of simply offering ‘extensive examination’ of an application or whether there is a presumption of admission, Bot prefers the procedural approach:
I do not share the view taken by the AIRE Centre to the effect that other family members benefit from a presumption of admission. First of all, the requirement of a dependency on the Union citizen laid down by Article 3(2)(a) of Directive 2004/38 seems to me to constitute, not a presumption, but a precondition for the applicability of that provision. Second, recognition of a presumption of admission stemming directly from that directive appears to me to be at variance with the reference to the law of the Member States for the purpose of defining the conditions for obtaining the right of entry and residence implied by the clause ‘in accordance with its national legislation’.
He goes on to argue that the Article permits Member States ‘enormous latitude’ and requires ‘only a certain degree of harmonisation by means of a measure containing only minimum requirements’. Nevertheless, ‘[t]his does not mean that Member States have unfettered freedom to facilitate, as they wish, entry and residence for persons coming within the scope of that provision.’
More positively, Bot suggests that additional qualifying criteria beyond those stated in the Article cannot be imposed, such as a requirement of a registered partnership or relationship akin to marriage in respect of a ‘durable relationship’. Later in the Opinion he also states that the additional imposition of a requirement of compatibility with national legislative provisions is incompatible with the Directive and that the Directive may be relied on as being directly effective.
The combination of the right of residence attached to Union citizenship and protection of private and family life, as implemented by EU law, may therefore effectively establish a right of residence for members of the family of the Union citizen … I conclude that the fundamental right to private and family life may, in principle, be relied on by all categories of persons mentioned in Article 3(2) of Directive 2004/38.
That is not to say that such cases must succeed on this basis, but that residence must not be refused ‘where such refusal has the effect of unjustifiably impeding the exercise of the right of the Union citizen concerned to move and reside freely within the territory of the Member States or causes a disproportionate impairment of his right to respect for private and family life.’
On the question of whether dependents or members of household need establish immediate prior shared residence in another EU Member State, Bot opines thus:
Whilst it would seem self-evident that family members who declare themselves to be members of the household of a Union citizen must prove that they reside with the Union citizen, and thus necessarily in the same State, I take the view, conversely, that ‘dependent’ family members cannot be excluded from the scope of Article 3(2)(a) of Directive 2004/38 on the ground that they have not resided in the same State as the Union citizen whom they wish to accompany or join. This view is based on reasons relating to the wording of the provisions of the directive and its purpose, and to the case-law of the Court.
He accepts that there must be dependency in the state of origin but goes on to suggest that it is also impermissible to require that the dependency be recent:
Nor does there appear to be anything to justify a requirement that the situation of dependency must have existed shortly before the Union citizen moved to the host Member State, when the relevant criterion is the time at which the application for entry and residence is made. If the dependency existed at the time of settlement in the host Member State, but has been interrupted since then, the condition laid down by Article 3(2) of Directive 2004/38 will not be satisfied. If, on the other hand, the situation of dependency arises after the Union citizen enters the host Member State, the family member may be regarded as being ‘dependent’. This could be the case, for example, for a Union citizen who, after exercising his right of free movement, is required to care for a nephew whose parents have recently died.
Finally, Bot accepts that national legislation may set criteria for issues such as dependency:
I take the view that Article 3(2)(a) of Directive 2004/38 does not preclude national legislation which makes entry and residence for a national of a non-member country subject to conditions as to the nature or duration of dependency, provided that those conditions pursue a legitimate objective, are appropriate for securing the attainment of that objective and do not go beyond what is necessary to attain it.
Personally I find this final conclusion impossible to reconcile with the earlier conclusion that, for example, it is not permissible further to define or restrict the term ‘durable relationship’, but perhaps I am missing something.
The immigration tribunal and the courts have until recently taken a hardcore conservative line on other family members, and it looks like they were wrong to do so. Things have moved on though, and the most recent cases on this subject, Moneke and others (EEA – OFMs) Nigeria  UKUT 341 (IAC) and Dauhoo (EEA Regulations – reg 8(2))  UKUT 79 (IAC), seem to be pretty much consistent with Bot’s Opinion.
It would be refreshing to live to see the tribunal erring on the side of liberality.
A couple of cases on marriage were recently decided in the Family Division and are worth reporting here as they could have a bearing on immigration cases where the validity of a marriage is significant in some way. The first of the cases might also be relevant to defining ‘subsisting marriage’ under the Immigration Rules.
In Galloway v Goldstein  EWHC 60 (Fam) Mostyn J starts by setting out the background:
The background to this application reveals the existence of a phenomenon which is by no means uncommon. The Applicant, whom I shall refer to as the husband, is English and the Respondent, whom I shall refer to as the wife, is American. They were married in the presence of witnesses only in Connecticut on 29 April 1999. However, they wished there to be a larger ceremony at which their family and friends could attend. Rather than arranging for some kind of ceremony of blessing, they in fact went through a second ceremony of marriage on 30 May 1999 at a hotel in England which was attended by family and friends and, no doubt, followed by a wedding party. That second ceremony resulted in the parties’ marriage being registered at the General Register Office of England and Wales.
…Quite often parties marry abroad but wish to have a grander ceremony here and therefore go through a second actual marriage ceremony. It is highly undesirable because the second marriage ceremony must result in false representations being made to the Registrar of Marriages. Formal representations need to be made to the Registrar of Marriages, I believe to be verified on oath, that neither of the parties is already married and of course it is a fact that, by the words of the ceremony itself, the parties have to declare that they know of no lawful impediment why they should not be married. That must have happened here and those representations must have been false because of course, at the relevant time, they were already married to each other. They are not false representations with any social consequence as they affect only themselves, but nonetheless the marriage laws of this country are there to be obeyed and it is highly regrettable that in this case – and I believe it is likely to have happened in other cases – false representations should have been made in order to satisfy the social wishes of the parties. Better, I suggest, it would have been for them to have arranged for a non-legal, non-formal ceremony of blessing of their prior union in Connecticut on 29 April 1999.
There are probably quite a few couples out there in a similar position, where a marriage that is effective in private international law terms is contracted in one country (see relevant post on this here) but then contracted again in another. As is usually the case in the family courts, the question becomes what happens when it all goes wrong later. In this case the marriage(s?) broke down and a divorce settlement was reached in Connecticut. However, one of the parties became anxious that the Connecticut settlement would not be effective in respect of the English marriage. That party applied for an order under s.55(1)(c) of the Family Law Act 1986 that the English marriage did not ‘subsist’ after the Connecticut divorce.
Free Movement is not aware of the immigration tribunal previously drawing on this section to illuminate the meaning of the ‘subsisting marriage’ requirement at paragraph 281(iii) of the Immigration Rules. It matches much more closely with the view of the tribunal expressed in BK and Others (Spouses: Marriage-meaning of ‘subsisting’) Turkey  UKAIT 00174 than in the later, probably incorrect, starred case of GA (“Subsisting” marriage) Ghana  UKAIT 00046. See this recent post for the latest immigration case law on marriage cases, though.
Returning to Galloway v Goldstein, Mostyn J concludes that the English ‘wedding’ was no such thing and was mere charade or play acting of no legal effect whatsoever. A decree of nullity was not possible and an order under s.55(1)(c) could be (and was) made but was unnecessary. He expresses the hope that other couples in a similar situation can point to this judgment rather than seeking similar orders in future.
El Gamal v Al Maktoum  EWHC B27 (Fam) involved an application for a nullity petition in respect of a marriage contracted in an Islamic marriage ceremony by an Imam in a flat in London. One of the issues was whether the marriage was a ‘non-marriage’ totally outside the statutory framework or was one that had been valid but was potentially void. Bodey J reaffirmed his conclusion in the earlier case of Hudson v Leigh  2 FLR 1129 that cases had to be decided on their own facts:
Questionable ceremonies should I think be addressed on a case by case basis, taking account of the various factors and features mentioned above including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of marriage; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage [under English law]; and (d) the reasonable perceptions, understandings and beliefs of those in attendance. In most if not all reasonably foreseeable situations, a review of these and similar considerations should enable a decision to be satisfactorily reached.
On the facts of the particular case Bodey J concluded that nothing was done by the parties to show an attempt to be part of a ceremony set up to or purporting to comply with the formal requirements of English law and therefore no decree of nullity could be made. The marriage was in truth a non-marriage.
The Outer House of the Court of Session (equivalent to the Administrative Court) has upheld a judicial review of an Upper Tribunal refusal of permission to appeal. As far as is known to Scottish practitioners, this is the first successful such application on either side of the border since tribunal reorganization and the Supreme Court decision in Cart / Eba  3 WLR 107 and 149. Lord Glennie’s 20th March decision in Oke  CSOH 50 is also important for its remittal to the Tribunal of an important question on the scope of Pankina. A very full and scholarly report is already published on Westlaw, and readers are referred to that for full details. The purpose of this blog is apprise practitioners generally of the broad outlines of this significant decision.
The petitioner had applied for leave to remain as a Tier 1 General Migrant. He was found to have insufficient points from self-employment because a first set of accounts did not bear to have been prepared by a certified accountant, as required by Policy Guidance, and a second confirmatory set of accounts was not supported by the petitioner’s signature of approval. The application was supported by extensive materials such as invoices and bank statements from which it would have been possible to cross-check the reliability of the information in the accounts. The petitioner appealed to the First-tier Tribunal and opted for papers-only disposal.
In dismissing the appeal, the Immigration Judge upheld the objection to the first set of accounts, without considering whether in terms of Pankina she might require to exercise discretion, and found the second set to be unreliable because in effect it duplicated the first. On that second issue she introduced a new consideration of her own to which the petitioner had never been invited to comment, since the refusal letter had questioned only the absence of a signature of approval, not the reliability of the accounts. At no point did the Judge consider the supplementary materials which potentially cross-checked the accounts, and indeed her determination betrayed no awareness of the existence of those materials, although they were certainly before her.
The FTT refused the petitioner’s application for permission to appeal on the grounds that Pankina had not decided that Policy Guidance was irrelevant. As Lord Glennie subsequently observed, that was rather to overlook the point, which was not that Policy Guidance was irrelevant but rather that it should not be treated as having the authority of binding law, unless it pre-existed the Immigration Rules which referred to it, which it had not. The critical decision, of course, was the renewed application to the UT itself. Senior Immigration Judge Gleeson refused the application while simply ignoring the principal submission being advanced by the petitioner, namely that in terms of Pankina the Judge was not bound by Policy Guidance to disregard either set of accounts when potentially persuasive cross-corroborative evidence had been available to her. The issue of the availability of such cross-corroboration was simply left unaddressed by the UT Judge.
Alan Caskie of the Murray Stable instructed by Jamie Kerr of Morton Fraser LLP applied for judicial review. In the subsequent hearing, counsel for the Home Office accepted that there was no requirement in the Policy Guidance for the second set of accounts to have been supported by the petitioner’s signature of approval. The Home Office argued that the requirement that the first set of accounts be produced by certified accountants was a procedural rather than substantive requirement of the Policy Guidance, and thus not exempted by Pankina from a requirement of strict compliance. In advancing that submission, the Home Office relied on the Administrative Court decision in R (English UK Limited) v Secretary of State for the Home Department  EWHC 1726 (Admin).
Lord Glennie noted that the Administrative Court in that case had been concerned with a demonstrably substantive requirement of the Policy Guidance, so that dicta relating to procedural requirements were necessarily obiter. Furthermore, those obiter dicta were at odds with the decisions in the two Upper Tribunal decisions in FA and AA (PBS: Effect of Pankina) Nigeria  UKUT 00304 and CDS (PBS: “available” Article 8) Brazil  UKUT 00305 (IAC).
The Home Office heavily relied on the dicta in PR (Sri Lanka) on the level of exceptionality required before an application for judicial review would meet the strict test imposed by the second appeal rule. Lord Glennie observed  that “the court must be careful not to let words of description become a kind of mantra, laying down a precise and restrictive test which would exclude almost every situation.” Earlier  he had specifically noted the observations of Dyson LJ in Uphill v BRB that an important point of principle or practice was an important point of principle or practice that has not yet been established. Lord Glennie held that the conflict in the caselaw on the applicability of Pankina style relaxation of the requirement of strict compliance with Policy Guidance to procedural as well as to substantive requirements was such a point. On the basis of that conclusion on its own, Lord Glennie was able to uphold the application.
However, although it was not strictly necessary for him to do so, Lord Glennie proceeded to consider the second wing of the second appeal test, and found that that too was made out. The FTT Judge’s reliance on the point of similarity between the first and second set of accounts was unfair, standing that no notice was given in the refusal letter of the respondent relying on the point, and no opportunity afforded to the petitioner to give an explanation for what might have been capable of innocent explanation. Indeed, the Court had before it an affidavit of the second accountant containing precisely such an explanation. “By opting for a written procedure, an applicant does not opt out of the requirements of fair procedure. ” Lord Glennie also had regard in this context to the complete failure of the UT Judge in refusing permission to appeal to have regard to the central tenets of the petitioner’s application, specifically the availability of potentially cross-corroborative evidence. There had been a fundamental collapse of fair procedure such as to constitute some other compelling reason for allowing the application for judicial review to proceed, irrespective of whether substantive / procedural Pankina point satisfied the first criterion of the second appeal rule.
Lord Glennie’s decision in Oke is in the opinion of this writer a decision of the first importance. There is first of all the significant point of the postulated distinction between procedural and substantive requirements of Policy Guidance in terms of Pankina. The proposition that the first has the force of binding law while the second does not appeared unattractive to the Lord Ordinary. It is noted that by way of contrast the Court of Appeal (whose decisions are not binding in Scotland) said differently in The Queen (on behalf of New London College Ltd.) v SSHD  EWCA Civ 51. It is understood that the Supreme Court will consider all these matters when it hears the appeal in Alvi & JCWI v SSHD, although the hearing date does not yet appear on the Supreme Court’s list of pending cases. For those in daily practice in PBS work, it is to be hoped that the proposition that there could be a hard and fast distinction between the substantive and procedural requirements of Policy Guidance such that each category would have a different legal effect will be repudiated. Such an approach would add a further layer of confusion and complexity in an area of immigration law already characterised by its opacity. For present purposes, however, the essential point is that there can be no serious argument that a legal issue which is currently pending before the Supreme Court meets the first limb of the Cart / Eba test.
For non-specialists, the significance of Lord Glennie’s decision is that it shows that tribunal reorganisation does not mean that slapdash tribunal decision-making is always and necessarily immune from the rule of law. No-one seriously doubts that there has been an improvement in recent years in the quality of immigration appellate decisions, or that the specialist expertise of the tribunal now merits a significant measure of judicial deference. However, the very efficiency which makes administrative tribunals so attractive as a mechanism for dispensing justice in the field of social welfare law dictates that there will also be some propensity towards carelessness that must ultimately be subject to control by the civil courts. It is anticipated that the Home Office will reclaim Lord Glennie’s decision to the Inner House (our Court of Appeal) and it will be fascinating to see how the role of the Court in supervising the Tribunal will be further defined. Meantime, enormous gratitude and respect to Alan and Jamie for showing us the light at the end of the tunnel.
In an interesting recent ruling, (Zarkasi v Anindita & Anor  UKEAT 0400_11_1801) the Employment Appeals Tribunal (EAT) considered an appeal from a trafficked domestic worker whose claim for unfair dismissal against her employer had been dismissed by the Employment Tribunal (ET). The ET had held that the contract of employment was illegal from the outset because the claimant had been working with false documents which, together with her employer, she had knowingly and fraudulently obtained in Indonesia prior to coming to the UK. Therefore they concluded that she could not succeed in any claim where the contract was effectively prohibited by statute.
Before the EAT, the claimant argued that the ET should have allowed her a remedy against her employer despite the contract’s illegality because she had been recognised as a victim of trafficking by U
KBA and was, on balance, more sinned against than sinner. Under Article 15 of the Convention on Action against Trafficking in Human Beings, ratified by the UK in 2009, a state is obliged to provide in its domestic law for the right of victims to compensation against perpetrators. The EAT refused to accept that an international instrument which has not been incorporated into UK domestic law meant that she should be able to succeed in a claim based on an illegal contract particularly as, on the findings of the ET, she had entered it willingly and without compulsion. The fact that she had been recognised as a victim of trafficking by UKBA was not considered relevant because the ET had found that the claimant was not a victim of trafficking based on the evidence before it. The EAT stated that the claimant could pursue other non-contractual remedies against the perpetrator (false imprisonment, trespass, assault) implying that these remedies satisfied the requirement under Article 15 of the Trafficking Convention.
However, the EAT gave some hope to victims of trafficking by accepting that Article 4 of the European Convention for the Protection of Human Rights (the prohibition of slavery and forced labour) might enable a claimant to succeed against an employer in the Employment Tribunal notwithstanding the fact that the contract under which he or she was working was illegal. The EAT hinted that such a claim might succeed where the victim had been coerced or trafficked into the contract. Therefore on the right facts, a human right which is incorporated into the domestic law might enable a claimant to overcome the strictness of the doctrine of illegality and sue his trafficker in the Employment Tribunal.