Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ea/01759/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 2nd December 2016
On 22nd December 2016

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

Ali Metwalli Mohamed Metwalli
(no anonymity order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Doshi, Legal Representative instructed by A Bajwa & Co Solicitors
For the Respondent: Mr S Walker, a Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, a citizen of Egypt who is married to a Hungarian citizen, appeals with permission against the respondent's decision to refuse him an EEA family permit under Regulation 17 of the Immigration (European Economic Area) Regulations 2006 (as amended), as the spouse of a Hungarian citizen exercising Treaty rights in the United Kingdom.
2. The appellant came to the United Kingdom in 2009 as a student, but after that visa expired, he worked illegally. On 6 December 2011, he was discovered doing so and served with notice of removal. He claimed asylum. The respondent refused his asylum claim in May 2014 and his appeal rights against that decision are exhausted.
3. The parties to the marriage met in March 2015 when they were working together at a restaurant, and began living together, on their account, on 1 June 2015. They went through an Islamic marriage ceremony on 4 June 2015. Towards the end of 2015, the parties approached a Registrar of Births, Marriages and Deaths, seeking to enter into a civil marriage. The Registrar contacted the respondent, who said that the marriage could not proceed until she had an opportunity to investigate further. On 2 December 2015, the respondent wrote to the registrar on 2 December 2015, to say that the marriage could proceed. The parties married just over a month later, on 11 January 2016. It is that date which is the relevant date for establishing whether this is a marriage of convenience.
4. The respondent's refusal letter of 8 February 2016 challenges the evidence provided by the appellant and his spouse as not supporting their claim to have lived together from June 2015, when they had entered into an Islamic marriage. The respondent says that "[b]ased on the evidence that you have provided, this department has no basis to confirm that you were in a relationship and residing together prior to your marriage?the Secretary of State has sufficient evidence to believe that the marriage undertaken on 11 January 2016?is one of convenience for the sole purpose of you remaining here in the United Kingdom". That is the totality of her reasoning on the point.
5. I have had regard to the assistance given in the decisions of the Upper Tribunal in Papajorgji (EEA spouse - marriage of convenience) Greece [2012] UKUT 38 (IAC) and in Agho v The Secretary of State for the Home Department [2015] EWCA Civ 1198, to which I do not need to refer in detail save to note that at paragraph 13 of Agho the Court of Appeal, Lord Justice Underhill, with whom Lord Justices Vos and Moore-Bick agreed, made it perfectly clear that the legal burden is on the Secretary of State to show that any marriage proved by a marriage certificate and the spouse's passport is a marriage of convenience and that that burden is not discharged merely by showing a reasonable suspicion.
6. That principle was affirmed by the Court of Appeal, in Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14, at [27] in the judgment of Lord Justice Richards, with whom Lord Justices Floyd and Moore-Bick agreed, in these terms:
"27. ?Regulation 17 of the EEA Regulations provides that the Secretary of State must issue a residence card on application and production of a valid passport and proof that the applicant is a family member of a relevant EEA national. On the face of it, production of a marriage certificate is sufficient proof that the applicant is such a family member. It is true that, by the combined effect of regulation 7 and regulation 2, "family member" does not include a party to a marriage of convenience. But Mr Kellar rightly stopped short of submitting that every applicant for a residence card on the basis of marriage has to produce proof that the marriage was not one of convenience. He said that such proof needed to be produced only where the Secretary of State raised a reasonable suspicion that the marriage was not one of convenience. When translated into the position before the tribunal, that is tantamount to saying that the legal burden of proof in relation to marriage of convenience lies on the Secretary of State but that if the Secretary of State adduces evidence capable of pointing to the conclusion that the marriage is one of convenience, the evidential burden shifts to the applicant."
7. The reasoning in the refusal letter is not such as to raise a reasonable suspicion that the marriage was one of convenience. The respondent's reasons for refusal letter dated 8 February 2016 lacks any explanation why, having had an opportunity to investigate the parties' intentions at the end of 2015 and approved the marriage, she now considers that (presumably between 2 December 2015 and 11 January 2016) the parties' intentions in relation to this marriage, or the evidence concerning whether it was a genuine marriage, changed to such an extent that she now considers it to be a marriage of convenience. The respondent has not interviewed the appellant or his spouse. Her refusal letter says there is insufficient evidence of cohabitation and that the relationship is short. Many people marry when they are not living together and have not known their spouses for long. It takes more than that to raise a prima facie case that the marriage is one of convenience.
8. The respondent's analysis of the residence documents is nothing to the point, as the burden had not shifted to the appellant and his wife to rebut evidence that the marriage was one of convenience. They were entitled to have their marriage treated as genuine, and it follows from that, since they produced the wife's passport and their marriage certificate, that the appellant is entitled to a residence card as the spouse of an EEA citizen.
9. Accordingly, the appellant's appeal against the First-tier Tribunal decision is allowed and I substitute a decision allowing the appeal.
10. I direct the respondent to issue the appellant with an EEA spouse residence card under Regulation 17 forthwith.

Conclusions
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision.
I re-make the decision in the appeal by allowing it.

Signed: Judith A J C Gleeson Date: 21 December 2016
Upper Tribunal Judge Gleeson