Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/02631/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 October 2016
On 18 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

mrs Christiana Abi Arrey
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr L Lourdes, Counsel, instructed by Universal Immigration Chambers
For the Respondent: Ms Z Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Lodge (the judge), dated 12 February 2016, in which he dismissed her appeal against the Respondent's refusal to issue her with a residence card under the Immigration (Immigration (European Economic Area) Regulations 2006 (the Regulations). That refusal is dated 11 November 2015.
2. It arose from an application made on 11 May 2015 in which the Appellant sought a residence card on the basis that she was a family member of an EEA national. The EEA national in question is Mr T, who is a citizen of France. It was said that the couple undertook a proxy marriage in the Appellant's country of origin, Cameroon. That proxy marriage was said to have occurred on 27 December 2013. It was said that Mr T attended the ceremony but the Appellant did not due to family problems in Cameroon.
3. The Respondent's decision letter made reference to Cameroonian law and concluded that the evidence provided did not comply with the relevant legislation of that country. In addition it was said that copies of Mr T's passport indicated that he had not been in the country at the time the claimed proxy marriage occurred. In the alternative the Respondent addressed the issue as to whether the Appellant's relationship with Mr T constituted a durable relationship under Regulation 8(5) of the Regulations.
The judge's decision
4. The appeal was determined by the judge on the papers in line with the Appellant's own request, and there being no objection by the Respondent. The judge noted that neither he, nor it seemed the Respondent, had been provided with the originals of the marriage certificate or Mr T's passport. The judge concluded that in the absence of the original passport he, like the Respondent, was placing little evidential weight upon the stamps contained therein. The judge did note that the stamps he had seen in the copy of the passport indicated that Mr T would, on the face of the document, have been in Cameroon at the time of the claimed proxy marriage. The dates stated by the Respondent in the refusal letter could not be located.
5. At paragraph 11 of his decision the judge goes on to conclude that in any event on the evidence before him he could not see that the relevant Cameroonian law had been complied with in this case. He was unable to identify who the proxy for the Appellant was. The judge went on to consider the issue of the durable relationship and concluded that the evidence was insufficient to show that one existed. The judge did accept that Mr T was a worker and therefore exercising treaty rights in the United Kingdom.
The grounds of appeal and grant of permission
6. The grounds of appeal assert that there was documentary evidence before the judge to show that the marriage was valid under Cameroonian law and recognised (in the words of the grounds) in France. The grounds assert that the judge was wrong in his treatment of the passport evidence and that in light of the production of the marriage certificate from the Cameroonian authorities the judge should have found that the marriage was valid and that the Appellant was a family member of Mr T.
7. Permission to appeal was granted by Acting Resident Judge of the First-tier Tribunal Zucker on 2 September 2016.
The hearing before me
8. Mr Lourdes submitted that the original passport of Mr T had in fact been sent to the Secretary of State with the application, although he acknowledged that there was no documentary evidence to support his assertion. He provided me with the original of the marriage certificate issued in Cameroon. This appeared to be the same document as that contained at page 28 of the Appellant's bundle, although there is a difference in the location of a stamp apparently from the French authorities. After some uncertainty Mr Lourdes indicated that the Appellant's representative at the ceremony was one Okongo Mbi Samuel, who was either the head of the Appellant's family or their representative. Mr Lourdes submitted that the requirements of Cameroonian law had been complied with.
9. In respect of the issue which I raised as to the validity of proxy marriages under French law, Mr Lourdes pointed me to the stamp appearing at page 29 of the Appellant's bundle and located at the top left hand corner of the certificate on page 28. He submitted that this showed that French law recognised proxy marriages. He made the point that the issue of validity under French law had not been raised in either the refusal letter or indeed by the judge himself.
10. Ms Ahmad submitted that there was no evidence to show that the original passport had been provided and it had not been made clear to the judge who the Appellant's proxy was. She further submitted that in light of the cases of Kareem and TA there was no evidence before the judge to show that proxy marriages were in fact recognised under French law. The judge was bound to apply the law in respect of proxy marriages and so whilst he did not raise the point himself, any errors he may have made in respect of the passport and the absence of an Appellant's proxy were immaterial to the outcome of the appeal. Mr Lourdes' reply reiterated the point that the issue of French law had not been raised previously. He did accept that the durable relationship issue had been determined against the Appellant by the judge and had not been challenged in the grounds of appeal. It was not now a live issue.
11. Both representatives were agreed that if I found there to be material errors of law and I set aside the judge's decision I should remake the decision on the evidence before me, which included the original Appellant's bundle, a new bundle and the information contained in the Respondent's bundle. I indicated to the representatives that if I were to be remaking the decision I would be considering the issue of validity under French law given that is precisely what case law says I must do.
Decision on error of law
12. I conclude that whilst the judge has erred in law, these are not ultimately material to the outcome of the appeal. My reasons for this conclusion are as follows.
13. First, I do not accept that the original passport was in fact submitted to the Secretary of State with the application, as asserted by Mr Lourdes. Having looked at the application form for myself it is clear that the box relating to the provision of an original passport had been left blank. Notwithstanding that, there was a certified copy of Mr T's passport in evidence before the judge and the relevant stamps in that passport are as stated in paragraph 9 of the judge's decision. In my view, notwithstanding the absence of the original passport, the judge was wrong to have in effect attributed no weight at all to the passport evidence. There is no suggestion by the Respondent at any stage that the passport was a forgery or had been tampered with, and the dates set out in paragraph 9 did correspond with the claimed attendance at the marriage ceremony in Cameroon in 2013, as the judge himself acknowledged. In this respect the judge erred.
14. Second, although I have sympathy with the judge in the sense that the evidence was not clearly presented to him, having looked at the marriage certificate for myself, which is in both French and English, it is apparent that there was a representative present at the ceremony acting on behalf of the Appellant; in other words a proxy. The individual (Okongo Mbi Samuel) was likely to have been of a status required by the relevant provisions of Cameroonian law. In this regard the judge has perhaps overlooked an aspect of the documentary evidence before him.
15. Third, it is right that the issue of the recognition of proxy marriages under French law had not been raised by the Respondent in her refusal, nor by the judge in his decision. Notwithstanding that, there had been no concession as to the legal position by the Respondent. The law on this issue was, as at the date of the judge's decision, clear: an Appellant has to show not only that the proxy marriage is valid in the country in which it is undertaken, but also under the law of the country of the nationality of the EEA national, in this case France. The only evidence that was before the judge was, I find, a stamp on the top left hand corner of the marriage certificate (see page 28 of the Appellant's original bundle). That stamp is in French and has not been translated. Even if one were to ignore that fact and translate it, as far as I can see it says nothing more than the fact that it had been seen by the French Consul in the Cameroonian capital in December 2014. There is no evidence from the French authorities or by way of expert evidence that proxy marriages undertaken in Cameroon or indeed anywhere else are recognised under French law. There was no evidence before the judge that marriages undertaken in the particular circumstances of this Appellant are recognised under French law. A bare stamp from the French Consulate in Cameroon cannot in my view amount to the requisite evidence in respect of validity under French law. Therefore, despite the fact the issue was not raised by the Respondent or by the judge the complete absence of evidence on the part of the Appellant was fatal to the success of her appeal in any event. Thus the errors committed by the judge were immaterial.
16. Fourth, in any event if indeed the errors of law were material and I were to set aside the decision of the judge, I would be remaking the decision for myself on the basis of the evidence now before me. No further evidence as to the recognition of proxy marriages under French law has been adduced by the Appellant. There has been no application to adjourn for any such evidence to be produced and even if I were to be satisfied that the marriage was in compliance with Cameroonian law I am not satisfied that proxy marriages either generally or in the particular circumstances of the Appellant are recognised under French law. The appeal would fail in any event. The issue of durable relationship has been determined against the Appellant is no longer a live issue. Therefore even on the alternative basis I would be dismissing the appeal.
Notice of decision
The decision of the First-tier Tribunal did not involve the making of any material errors of law.
The decision of the First-tier Tribunal stands.

No anonymity direction is made.

Signed Date: 17 October 2016
Deputy Upper Tribunal Judge Norton-Taylor