(Immigration and Asylum Chamber) Appeal Number: EA/02013/2015
THE IMMIGRATION ACTS
Heard at Field House
Decision and Reasons Promulgated
On 13 November 2017
On 21 November 2017
DEPUTY UPPER TRIBUNAL JUDGE MONSON
mrs oluwakemi adeoti mota
(anonymity direction not made)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr N. Garrod, Counsel instructed by AO & Associates Solicitors
For the Respondent: Ms K. Pal, Specialist Appeals Team
DECISION AND REASONS
1. The appellant appeals to the Upper Tribunal ("UT") from the decision of the First-tier Tribunal ("FtT") promulgated on 16 February 2017 (by Judge I.A. Lewis who heard the appeal at Harmondsworth on 15 November 2016) dismissing his appeal against the decision by the SSHD to refuse to issue him with a residence card as confirmation of his right to reside in the United Kingdom as the spouse or partner of an EEA national exercising treaty rights here. The FtT did not make an anonymity order, and I do not consider that such an order is warranted for these proceedings in the UT.
2. The application was refused because the appellant had purportedly entered into a customary marriage by proxy with his Dutch national sponsor, and the respondent did not accept that the proxy marriage was valid either according to the laws of Nigeria or according to the laws of the Netherlands. With regard to the former, it was not accepted that the marriage had been properly executed as required by Nigerian law or that the marriage certificate had been issued by a competent authority in Nigeria. With regard to the latter, it was not shown that a proxy marriage involving a Dutch national was recognised by the Netherlands, following Kareem (Proxy marriages - EU law)  UKUT 00024 (IAC).
The Decision of the First-tier Tribunal
3. The Judge followed Kareem, and declined to follow Cudjoe (Proxy marriages: burden of proof)  UKUT 180 (IAC) which Mr Garrod relied on as establishing that it was not necessary in a case involving a Dutch national sponsor for the third country appellant to show that the proxy marriage was recognised under Dutch law. The Judge made no findings on whether the appellant was in a durable relationship with his sponsor pursuant to Regulation 8, as Mr Garrod acknowledged that he had no jurisdiction to hear an appeal on this ground, following Sala (EFMs: Right of Appeal)  UKUT 411 (IAC).
The Grant of Permission to Appeal
4. FtT Judge Page granted the appellant permission to appeal on all grounds, which included: (a) that there had been excessive delay in promulgation: and (b) that the judge had failed properly to evaluate the evidence and the relevant case law.
5. The law has been clarified since the appeal was heard and the grounds of appeal to the UT were formulated.
6. In Awuku v SSHD  EWCA Civ 178 the Court of Appeal held that Kareem was wrongly decided. The validity of a proxy marriage did not fall to be determined by the national law of the EU country of which the EEA sponsor was a national.
7. In Khan v SSHD  EWCA Civ 1755 the Court of Appeal held that Sala was wrongly decided, and that the appellant had a right of appeal to the FtT against the decision to refuse to issue him with a residence card as an extended family member under Regulation 8.
8. The law always speaks, and so Judge Lewis was clearly wrong to decide the issue of the validity of the proxy marriage on the basis that it was not shown to be recognised by Dutch law; and he was also wrong to direct himself - albeit with Mr Garrod's agreement - that he had no jurisdiction to entertain an appeal under Regulation 8.
9. Ms Pal accepted that the decision should be set aside in its entirety, and submitted that the appeal should be remitted to the First-tier Tribunal. Mr Garrod sought to persuade me that the decision should be remade by me in the appellant's favour without a further hearing, on the basis that there was no merit in the alternate basis advanced in the refusal letter for contesting the validity of the proxy marriage, which was that the marriage had not been properly executed as required by Nigerian law or that the marriage certificate had not been issued by a competent authority in Nigeria.
10. While the FtT Judge found for the appellant on this issue, I did not - and do not - consider that his finding could be regarded as safe in view of the lengthy delay between the hearing and the promulgation of the decision, and the complaint of the appellant that he failed to consider relevant evidence in his decision. Accordingly, I ruled that the appeal should be remitted to the FtT to be heard afresh.
Notice of Decision
11. The decision of the FtT contained an error of law, such that it must be set aside in its entirety and remade.
12. This appeal is remitted to the FtT at Taylor House for a de novo hearing (Judge I.A. Lewis incompatible).
13. The agreed time estimate is two hours
No anonymity order is made.
Signed Date 19 November 2017
Deputy Upper Tribunal Judge Monson