ZH (Afghanistan) v Secretary of State for the Home Department

Under Directive 2004/38/EC, a non-member-country spouse of an EU citizen who accompanies or joins that citizen has directly enforceable entry and residence rights. A Member State cannot impose prior conditions, such as lawful residence in another Member State or compliance with domestic Immigration Rules, where those conditions are not authorised by the Directive. Rights may nevertheless be refused, terminated or withdrawn for abuse of rights or fraud, including a marriage of convenience, subject to proportionality and procedural safeguards. Where the lower tribunal has made no findings on those matters, the appellate court should remit rather than decide them for the first time.

An Afghan national applied for an EEA family permit to join his Polish wife in the United Kingdom. The Entry Clearance Officer refused the application under paragraph 281 of HC 395, finding that the marriage was not shown to be genuine or intended to be permanent. An Immigration Judge dismissed the appeal, and the Asylum and Immigration Tribunal upheld that decision, treating the decision in Metock v Minister for Justice, Equality and Law Reform (Ireland) [2009] QB 318 as irrelevant to the Immigration Rules.

On appeal, the Secretary of State accepted that the lower reasoning could not stand after Metock, but argued that refusal could be justified by marriage of convenience or abuse of rights. The central issue was whether those alternative grounds could sustain the refusal or required reconsideration by a tribunal.

1. Appeal allowed and remitted. Lord Justice Aikens delivered the reasons, with Lord Justice Wall and Lord Justice Rix agreeing. The case was remitted to a fresh tribunal to reconsider all matters. The appellant was awarded the costs of the appeal, subject to detailed assessment if not agreed.
2. The AIT had erred in treating Metock v Minister for Justice, Equality and Law Reform (Ireland) [2009] QB 318 as irrelevant to the requirement in the Immigration Rules referred to by Regulation 12. Metock established that the Community legislature had competence to regulate the entry and residence of non-member-country family members of EU citizens. The Directive conferred directly enforceable rights without a prior lawful-residence requirement. It followed that prior requirements such as those in paragraph 281 of HC 395, and Regulation 12(b)(i) and (ii) of the Immigration (European Economic Area) Regulations 2006 as then framed, were unlawful.
3. The Secretary of State could not rely before the Court of Appeal on marriage of convenience. The lower tribunal had made no finding that the marriage was one of convenience. That issue remained open at the rehearing, where the tribunal would have to consider the proper interpretation of spouse and marriage of convenience under Regulation 2(1).
4. The abuse-of-rights argument had not been raised below. The lower tribunals had made no findings of fact or considered the relevant legal issues. Metock confirmed that abuse of rights, fraud and marriages of convenience could be relevant to refusal of entry or an EEA family permit under Article 35 of the Directive. The issue could therefore be raised at the rehearing, but the tribunal had to make the necessary findings and apply the law.
5. The Court deliberately expressed no view on the interpretation of spouse or marriage of convenience, the burden of proof, or the nature and application of the abuse-of-rights doctrine. Those questions were better considered after the relevant facts had been found, with any further legal issues capable of being considered on appeal if necessary.

1. Court of Appeal (Civil Division) — The appeal was allowed and the matter was remitted to a fresh tribunal to reconsider all matters. The appellant was awarded the costs of the appeal.
2. Asylum and Immigration Tribunal — On reconsideration, the AIT dismissed the appeal on 17 October 2008, holding that the Immigration Judge had made no material error of law and that Metock did not affect the Immigration Rules requirement.
3. Immigration Judge — The appeal against refusal of the EEA family permit was dismissed on 20 March 2008. The judge was not satisfied that the appellant intended to live permanently with the Sponsor as her spouse.