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

Article 35 of the Citizens Directive is a self-contained power to refuse, terminate or withdraw rights obtained through abuse or fraud, including a marriage of convenience. It is subject to procedural safeguards and general proportionality, but Articles 27 and 28 are not incorporated wholesale. The measure must be proportionate to the abuse; the heightened public-policy and public-security test does not apply. A marriage’s later breakdown is not determinative of the parties’ intentions when it was entered. An immigration tribunal may assess the evidence in the round. Where the marriage is one of convenience, reliance on family life under Article 8 may be inappropriate, while private-life interference must be balanced against the public interest in immigration control.

The appellant, a Kenyan national, had married a Portuguese national and obtained an EEA residence document. After his return from Kenya, the document was revoked and removal was proposed on the basis that the marriage was one of convenience. An earlier appeal was remitted by the Administrative Court, but the Asylum and Immigration Tribunal dismissed the appeal in a determination promulgated on 16 August 2007.

The appeal concerned the construction of Article 35 of the Citizens Directive, the Tribunal’s assessment of the evidence concerning the marriage, and whether removal was disproportionate under Article 8 of the European Convention on Human Rights.

Appeal dismissed. Pill LJ gave the leading judgment. Arden LJ and Longmore LJ agreed.

1. Article 35 is a self-contained provision addressing abuse of rights and fraud, expressly including marriages of convenience. It permits rights conferred by the Directive, including residence rights, to be refused, terminated or withdrawn. The provision is subject to the procedural safeguards in Articles 30 and 31 and to proportionality.
2. The proportionality requirement in Article 35 is general. The measure must be proportionate to the abuse in question. Articles 27 and 28 are not incorporated wholesale. Some considerations identified in Article 28 may be relevant, but its substantive restrictions do not govern every Article 35 decision. The separate reference to Articles 27, 28 and 29 in Article 33 supported that construction. Arden LJ emphasised that Article 35 does not limit proportionality to public security or public health. Longmore LJ considered it proportionate to prevent an immigration advantage being obtained by contracting a marriage of convenience.
3. The Tribunal applied the correct test when it considered the parties’ intentions at the time of the marriage. There was no requirement that the spouses cohabit, and the subsequent breakdown of the marriage was not determinative. The Tribunal was entitled to assess the evidence in the round, including the absence of financial support, the limited time spent together, the appellant’s extensive travel and the circumstances in which the residence application was made. Its brief treatment of supporting witnesses did not invalidate the decision.
4. The Tribunal was an expert tribunal whose findings on proportionality were entitled to respect. It identified the Article 8 test and considered the appellant’s circumstances. In light of the finding that the marriage was one of convenience, reliance on family life was inappropriate. The Tribunal was entitled to find that interference with the appellant’s private life was limited and proportionate when balanced against the public interest in effective immigration control.

The appeal was dismissed.

1. Court of Appeal (Civil Division) ([2008] EWCA Civ 543) dismissed the appeal from the Asylum and Immigration Tribunal.
2. Asylum and Immigration Tribunal dismissed the appellant’s appeal in a determination promulgated on 16 August 2007. An earlier Tribunal appeal, dismissed on 10 May 2006, had been remitted by the Administrative Court because of a potential error of law concerning whether the marriage was one of convenience.