Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/01801/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 31 January 2017
On 15 February 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

USMAN ASIM
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr D Byrne, Advocate, instructed by Drummond Miller, Solicitors

For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Pakistan, born on 1 April 1984. He applied for a residence card under the Immigration (EEA) Regulations based on his relationship with Sylwia Gierosz, a citizen of Poland, born on 11 April 1991.
2. The respondent refused the application for reasons set out in a letter served on 19 October 2015, based in particular on 15 "bullet points", from which it was found that answers to questions had been rehearsed and scripted and that the marriage was one of convenience.

3. FtT Judge Mozolowski dismissed the appellant's appeal for reasons explained in her decision promulgated on 9 June 2016.
4. The FtT refused permission to appeal to the UT.
5. The appellant renewed his application to the UT, specifying 7 proposed grounds, in summary as follows:
(i) The judge found none of the factors relied upon by the respondent in her decision to justify a finding that the marriage is one of convenience, saying that the performance of appellant and sponsor during the marriage interviews was quite impressively consistent. The respondent failed to discharge the onus upon her in light of those findings, and applying Papajorjii [2012] UKUT 38, the tribunal should have allowed the appeal.
(ii) Neither the FtT nor the respondent identified any triggers which national states are entitled to take into account under "4.2 of Citizens Directive Com 2009 313". The decision was "simply a systematic check of the type prohibited by EU law".
(iii) The tribunal found inconsistency in that the appellant previously respected his parents' wishes not to marry a person of whom they did not approve, in Pakistan. The comparison with marriage to someone in the UK or in the EU was artificial.
(iv) The fact that the parties had not told their parents was not a trigger but a neutral factor. "Weighed against a long relationship, cohabitation and consistent interviews the decision is unreasonable".
(v) The tribunal regarded the description of the front door of their house by husband and wife as "red on the outside and white on the inside" as a striking similarity, agreeing with the respondent's submission that this indicated rehearsal. The colour of the door was an objective fact. The answers could not yield an adverse finding.
(vi) The tribunal said at paragraph 30 that as both parties maintained that they were not close to their families it would not matter very much to either family whom they married, and concluded that they would therefore tell their families, when the opposite was equally likely.
(vii) The tribunal said (also at paragraph 30), "There are significant question marks about this being a genuine marriage and therefore the test set out at paragraph 39 of Papajorjii is met". Failure to be satisfied that the marriage was genuine did not establish that the marriage was a sham: the respondent failed to discharge the onus of proof, "therefore the appeal should have been [allowed]". The tribunal adopted the wrong approach of requiring the parties to establish the relationship was genuine, rather than it being for the respondent to establish it was a sham.

6. On 7 November 2016 a UT judge granted permission, as follows:
Grounds 1 and 7 are arguable. Ground 1 asserts that of all the factors relied upon by the respondent to justify a submission of sham marriage none of them were relied upon by the judge. The decision letter, in fact, refers to the lack of contact with the family but it is arguable that the judge in relying on only one of the factors identified by the Secretary of State (who essentially relied on the interview) gave insufficient weight to the whole of the interview in which the judge found the parties to be "impressively consistent" when considering the application of Papajorjii. Ground 2 is not arguable as the list is not exhaustive and grounds 3, 4 and 5 are merely disagreement with the decision and not arguable in themselves. Ground 7 is dependent on ground 1 which is axiomatic and thus also arguable.
7. Mr Byrne submitted along the following lines. The grant of permission was not restricted to grounds 1 and 7. The judge fell into an error of introducing a new case theory, similar to a mistake identified in Agho [2016] 1 INLR 411. Rosa [2016] 1 WLR confirmed that the legal burden of proof remained on the Secretary of State throughout. On a clear analysis of her factual findings, the judge found no more than a reasonable suspicion. The sentence quoted at ground 7 showed a clear error of law. In considering such matters as the likely behaviour of the parties' families, the judge approached the case as if the onus were on the appellant. The decision contained no analysis from the other point of view, of whether the respondent made out her case. None of the reasons given by the Secretary of State were imported into the judge's decision. The decision should be set aside for legal error. As there had been no weighty evidence on the Secretary of State's side, the decision should simply be reversed. Alternatively, there should be a remit to the FtT.
8. Mrs O'Brien replied thus. The grant of permission was clearly restricted to grounds 1 and 7. Mr Byrne sought to add to the grounds by citing Agho, but there was nothing in this case to show that the judge had embarked on a new case theory of her own. The thrust of the respondent's decision was that the parties had given identical or nearly identical answers at interview, and the judge's finding of impressive consistency was to be read in that light. The judge had not gone to look for reasons of a different nature, but had adopted the core of the reasons given by the respondent, and expressed similar concerns. The judge also noted plain inconsistencies emerging from the evidence given at the hearing. At paragraph 25 she recorded that the appellant hesitated in explaining why a proposed marriage in Pakistan had not gone through because of his parents' opposition, then changed his story to suggest that it had been the family of the bride which was opposed. The decision, read fairly and as a whole, showed no legal error.
9. Mr Byrne in response submitted that the reference to "significant question marks" was not just a slip, but showed the error of legal approach, namely the testing of the case for the appellant rather than asking whether the respondent had made the positive case required of her.
10. I reserved my decision.
11. At paragraph 21 of the decision the judge notes the consistency of the interviews, and takes that as tending to support the appellant.
12. The judge does not give this consistency the central adverse importance it has in the refusal letter, but the respondent is correct to point out that the consideration is made in the context that the same feature may also be taken to point the other way.
13. The judge then turns to the oral evidence of the appellant and sponsor, and expresses her concerns, as she was entitled to do. The reasons she gives are all sensible.
14. The sponsor's claim that she had little or nothing to do with her family, and so they did not attend the wedding, did not make sense in context of her other evidence of visiting her father in Poland when he was ill, and visiting her sister and her sister's child in Edinburgh.
15. The judge raised with the appellant the apparent contradiction between accepting his parents' veto on a marriage in Pakistan, then proceeding to marry someone else of whom he thought they would not approve. Mr Byrne submitted that this was no true discrepancy, but it is well within reason, and in any event the judge made another and stronger point at paragraph 25: the appellant went on to give another hesitant and inconsistent explanation, blaming firstly his own parents, then the parents of the bride. At paragraph 26, the judge was concerned over the fact that neither the appellant nor the sponsor had told either set of parents, whereas the appellant's cousin and possibly an uncle in Edinburgh were witnesses at the wedding, so that his extended family knew about the marriage; and the sponsor had a sister in Edinburgh whom she visited alone, but had not told her that she had married the appellant. At paragraph 27 the judge had doubts over the appellant's general credibility, over his coming to the UK with no real intention of studying and then overstaying; "actions? far more indicative of someone who is intent on working and not studying".
16. At paragraph 28 the judge poses the question in terms of paragraph 39 of Pappajorgi, correctly.
17. At paragraph 29, she says that the question of the general credibility of the appellant and sponsor does not necessarily mean that the marriage is one of convenience, and that the immigration advantage to the appellant is "not a relevant issue". The latter observation, if anything, errs on the appellant's side, that advantage being the obvious motive for a sham marriage.
18. It is not clear whether the grant of permission was intended to encompass grounds 2 - 6, but I permitted them to be argued. However, I do not find them to amount to more than insistence and disagreement, apart from ground 5, where it is doubtful that accurate answers by each party to a simple question of fact could yield an adverse inference. This is perhaps an interesting point of logic, but it is no more than incidental to the outcome.
19. I do not find ground 1 to be made out. Consistency at interview was only one feature of the case, and the judge did in the end find force in the respondent's points.
20. I do not uphold the submission that the judge found no weighty points established on the respondent's side. The issues raised in the letter were strongly added to by the judge's rational analysis of the further evidence, in particular the oral evidence of the appellant and sponsor.
21. Singled out, the sentence from paragraph 30 criticised in ground 7 is legally erroneous; but it comes in the middle of the judge's consideration - after paragraph 28, where the question is correctly set out; immediately before a sentence which says again that honest suspicion is insufficient; and in a paragraph the concluding sentence of which says, "? on balance I consider that the case has been made out that this is a marriage of convenience ?".
22. Read fairly and as a whole, the decision is not based on a misconception of legal approach. Rather, its essential conclusion is that on the whole evidence, and for sensibly explained reasons, the respondent has shown that this is a marriage of convenience.
23. The determination of the First-tier Tribunal shall stand.
24. No anonymity direction has been requested or made.

14 February 2017
Upper Tribunal Judge Macleman