Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/02970/2015

THE IMMIGRATION ACTS

Heard at Liverpool Justice Centre
Decision & Reasons Promulgated
On 21 December 2017
On 22 January 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

hamza said
(aNONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Chohan, Solicitor Britain Solicitor
For the Respondent: Mr C. Bates, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant appeals with permission against the decision of First-tier Tribunal Judge M.A. Khan sitting at Hatton Cross whereby his appeal against the Respondent's decision to refuse to issue a residence cared as confirmation of a right to residence as a spouse of an EEA national exercising treaty rights in the United Kingdom had been dismissed.

2. The Judge had said at paragraph 38 of his decision that the Appellant and his spouse had given evidence before him and had been vague and evasive during their evidence. He said the evidence was not credible or consistent. The Judge noted at paragraph 37 of his decision that the Appellant and his spouse had married in a registry office in Denmark. The Judge concluded though that, "I do not find it credible or consistent that the appellant, a practicing Muslim would not undertake a religious ceremony for his marriage to have any meaning in his religious and cultural aspects?".

3. At paragraph 38 the Judge said that the evidence in relation to the various addresses and the tenancies relied upon was "extremely vague and evasive". The Judge went on to say, "[The Appellant]'s evidence with regards to taking out 12 months tenancies and not being subject to any penalties for breach of contract is also not credible with the legal requirement of Land law and Tenants Law" [sic].

4. At paragraph 38 the Judge concluded that the claimed work with HMRK was a fabrication.

5. In his submissions before me, Mr Chohan said he relied on the grounds of appeal which had been drafted by Counsel. He amplified the grounds to ask why there had to be two marriage ceremonies. There were lots of different practices which were used by Muslims. Some say follow a civil process and others say there is no need. The Judge did not ask these parties why they did not undertake a Muslim ceremony. In so far as the job is concerned, there was a letter with a signature. The issue found by the Judge was not put to the parties. In so far as the Landlord and Tenant issue is concerned, the Judge was "jumping the gun'. Was the Judge saying that the Home Office should have been taking enforcement action in respect of the accommodation? If the Appellant is a family member then he can move to wherever, for example to Manchester.

6. Mr Bates said that there was no irrationality or perversity in the Judge's decision. The Judge had properly found that despite being a practising Muslim the Appellant had failed to undergo a religious ceremony of marriage. By the time of the hearing the couple had had ample time to have had it done. As for the employment issue, why was it that the evidence had not been corroborated and the employer had not attended the hearing. In so far as the tenancy agreement is concerned, page 147 of the bundle showed 2 addresses. Not all tenancy agreements were signed. I should also look at page 154 of the bundle. These tenancies were for 12 month periods so the Judge was effectively asking where is the evidence from the landlords? How reliable a document was the tenancy agreement? Overall there were cogent reasons for not accepting the Appellant's case.

7. Mr Chohan said in reply that the tenancy agreements or the types of documents are ones that one can get from WH Smiths and so the Appellant should not be penalised if there were errors in them or if not signed. I should accept the submission that if a room is being rented as opposed to a flat or house then the landlord will not penalise those who seek to break the agreement early.

8. It is obvious in my judgment that the Judge was suspicious about the Appellant's claim and indeed I can understand why when looking at the state of the documents relating to the tenancy agreements. However, it was incumbent upon the Judge set out to the required balance of probabilities test why the facts and law was such as to enable him to dismiss the appeal. That therefore required the Judge to put his concerns, particularly those relating to the religious marriage ceremony, to the Appellant and his spouse for a response from them. There may well have been an explanation that the Judge might have been satisfied with. I accept the submission and grounds on behalf of the Appellant that there are very many different practices within the religious communities as to whether both a civil ceremony and a religious ceremony are required. I accept that some communities will see a religious ceremony as essential, but not all will. Similarly, the issues in respect of the employer documents ought to have been put to the Appellant and to his spouse during the hearing. Again, it is possible that the Judge might have been satisfied with the explanation provided.

9. In my judgment, it is not possible to conclude that these errors of law were not material. The errors clearly could have affected the outcome of the case.

10. I conclude that the decision of the Judge has to be set aside and that none of the current findings can stand. There shall be a re-hearing at the First-tier Tribunal.
Notice of Decision
The First-tier Tribunal Judge's decision contains a material error of law and is set aside.
There shall be a re-hearing at the First-tier Tribunal on all issues.
There is no need for an anonymity direction.

Signed. A Mahmood 23 12 2017

Deputy Upper Tribunal Judge Mahmood