Aslam, R (on the application of) v The Secretary of State for the Home Department

A removal decision under section 10 of the Immigration and Asylum Act 1999 is lawful where the decision-maker rationally concludes that an applicant has no right to reside under the EEA Regulations. The court reviews that conclusion for irrationality rather than determining the underlying precedent fact. An administrative marriage interview need not be conducted as a criminal interview or preceded by a PACE caution. Detention must be assessed on the facts known to the Secretary of State at the relevant time and in accordance with applicable detention policies and the Hardial Singh principles. However, detention has no lawful basis before the relevant removal or residence-card decision is communicated to the detainee.

The claimant, a Pakistani national, challenged the lawfulness of his detention from 19 May to 17 August 2017 and removal directions issued under section 10 of the Immigration and Asylum Act 1999. He had applied for a residence card based on alleged retained rights following a proxy marriage to an EEA national.

The Secretary of State concluded that the marriage was invalid and, alternatively, a marriage of convenience. The claimant challenged the rationality and fairness of the interview process, the use of section 10 rather than the Immigration (EEA) Regulations 2006, and the legality of his detention. The central issues were whether the claimant had a right to reside under the Regulations, whether removal under section 10 was lawful, and whether detention was lawful before the refusal decisions were served.

1. The claim was dismissed save for the period of detention before service. The claimant was unlawfully detained from 19 May to 30 May 2017, when the refusal and removal-related decisions were communicated to him. The remaining challenges failed.
2. The notice curtailing the claimant’s leave would have been effective only when communicated. Even assuming it was not served, his leave expired no later than 31 May 2014. He was then liable to removal under section 10 of the Immigration and Asylum Act 1999, unless he had acquired a right to reside under the EEA Regulations.
3. The decision that the marriage was one of convenience was not irrational. This was not a precedent-fact case. The court’s task was to review the rationality of the Secretary of State’s conclusion on the information available at the time, not to determine whether the marriage was in fact invalid or a marriage of convenience. The interview responses, the previous findings concerning the marriage certificate, and the claimant’s limited knowledge of his alleged spouse provided a rational basis for the decision.
4. The interview was procedurally fair. The claimant was informed of the matters being investigated and had a proper opportunity to address them. The Secretary of State was not required to interview the former spouse, put the allegations in a particular form, or give a PACE caution. The interview was administrative rather than criminal, and no evidence showed that it generated a likely criminal prosecution.
5. The Secretary of State was entitled to use section 10 rather than regulation 19 of the Immigration (EEA) Regulations 2006. The claimant had no established right to reside because the Secretary of State rationally concluded that there had been no valid marriage, alternatively a marriage of convenience. Santos v Secretary of State for the Home Department was distinguishable because, unlike in that case, the claimant’s alleged EEA right of residence was disputed and had not been established.
6. Detention complied with the applicable policy and the Hardial Singh principles. The claimant’s immigration history, repeated unsuccessful applications and perceived risk of absconding justified detention on the information available. The issue of judicial review proceedings and an Article 8 claim did not automatically prevent removal or make detention unlawful within the relevant period.

First-instance judicial review proceedings. The judgment records related proceedings before the First-tier Tribunal and Upper Tribunal, including the setting aside and remittal of the First-tier Tribunal decision, but this court determined the judicial review claim itself.