Sham Marriages - Bilal Ahmed revisited
In the case of Bilal Ahmed, the Upper tribunal held that where an applicant had made an application for a residence card as the husband or wife of an EEA national but has no other basis of stay, and where his application was refused on the basis that his marriage was one of convenience, the applicant could be removed while his appeal against that refusal was pending.
The third point in the headnote of Bilal Ahmed states:
“(3) The factual issue of whether P is a family member falls to be determined by the First-tier Tribunal on appeal by P against the EEA decision and/or the section 10 decision, whether or not P may by then be outside the United Kingdom. A judicial review by P of the decision to remove and/or the setting of removal directions will not succeed where P’s application is based on marriage to an EEA national, if the Secretary of State reasonably suspects P of being a party to a marriage of convenience.”
This decision was upheld in the Court of Appeal.
The power to remove an applicant in this situation comes from Section 10 of the Immigration and Asylum Act 1999. This section was modified by the Immigration Act 2014. It is possible that this change means that Bilal Ahmed can be distinguished from those cases where the removal decision is made under the new section 10.
Section 10, at the time of the removal decision in Bilal Ahmed, and before it was amended by the Immigration Act 2014, said:
“(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if—….” [Emphasis added]
Now, having been amended by the Immigration Act 2014, Section 10 says:
“(1) A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave to enter or remain in the United Kingdom but does not have it.” [Emphasis added]
A person who is the direct family member (such as a spouse) of an EEA national who is exercising Treaty rights has a right of residence under the EEA Regulations and does not require leave to enter or remain in the UK.
The authority underpinning the line of judgments relied upon in Bilal Ahmed is R (Lim) v Secretary of State for the Home Department  EWCA Civ 733. It was considered in Lim that some material facts should not be decided by an immigration officer subject only to an out-of-country appeal. It was held at paragraph 19, by Sedley LJ:
“It is plain, in my judgment, that there are some material facts upon which the application of s.10 depends and which it cannot be for an immigration officer, subject only to an out-of-country appeal, to decide. The section permits removal only of "a person who is not a British citizen". If the person whom it proposed to remove claims to be a British citizen, there can be no doubt that he or she has an immediate right of recourse to the High Court to prevent removal. I am entirely unable to accept the Home Secretary's contention that an individual whose claim to be a British citizen is disbelieved by an immigration officer must accept removal to a country where he may have neither work nor family nor accommodation and conduct an appeal from there in which, by virtue of s.3(8) of the Immigration Act 1971, the onus lies on him to prove citizenship. The same, in my opinion, must be the case where identity is in issue: if the person whom it is proposed to remove denies being the person it is intended to remove, the High Court must have an unfettered power to decide the question. Both classes of issue, in my judgment, rank as precedent fact.”
It may be arguable that, had Sedley LJ been considering the new section 10, he would have considered the question of whether a person ‘requires leave’ to be such a material fact which should not be determined in an out-of-country appeal but should be considered on an application for judicial review. The ‘requires leave’ requirement of the new section 10 directly replaces the ‘is not British’ requirement that Sedley LJ would not have left to be decided in an out-of-country appeal.
In upholding the determination of the Upper Tribunal in Bilal Ahmed, it was held by Laws LJ:
“… it seems to me that the Secretary of State is in any event right to submit at paragraph 70 of his skeleton as follows:
‘The present case is not, however, one in which the very existence of the power to remove was dependent upon establishing by the Secretary of State a precedent fact. The Applicant had overstayed his leave. He was accordingly, removable. His presentation of an appeal against the refusal of his residence card did not, by the 2006 Regulations, bar his removal.
“Here, it was for the appellant to establish his EEA claim. This is done in such a case as this by application to the Secretary of State with a right of appeal thereafter, for which however the appellant has no right to be present in this country. This is not a case of precedent fact.
It is possible that the change in section 10 has made the need for leave to remain a ‘precedent fact’ and one which it is necessary for the Secretary of State to establish in order that she has a power to remove the family member of an EEA national.
It is therefore possible that Bilal Ahmed should not be applied in cases where a removal decision is made under the new section 10 and that permission for judicial review should be given in such cases.
Even if this is not the case, it should be remembered that Bilal Ahmed says:
“A judicial review by P of the decision to remove and/or the setting of removal directions will not succeed where P’s application is based on marriage to an EEA national, if the Secretary of State reasonably suspects P of being a party to a marriage of convenience.” [Emphasis added]
As such, where an allegation that a marriage is one of convenience is unreasonable (in a Wednesbury sense) a judicial review may still succeed.
Until the question of the applicability of Bilal Ahmed to decisions under the new section 10 has been resolved, applicants for residence cards should prepare their application on the basis that their only recourse, should a sham marriage be alleged, is an out-of-country appeal. Given the current delays in the Tribunal system, this can mean a separation of husband and wife for more than a year.
Therefore, applications should be prepared with particular attention given to proving that the marriage relied upon is not one of convenience.
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