Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/04366/2021
[UI-2021-000792]

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 24th February 2022
On the 09th May 2022

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

Mr Naeem Sabir
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Hingora, Counsel instructed by Adam Bernard Solicitors
For the Respondent: Mr S Walker, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant seeks permission to appeal against the decision of First-tier Tribunal Judge Sweet promulgated on 6th August 2021 dismissing the appellant’s appeal against the Secretary of State’s decision dated 2nd March 2021 refusing the appellant’s application under the EU Settlement Scheme for settled status.
2. The Secretary of State’s refusal decision recorded that the appellant was a spouse of a relevant EEA citizen, Valentina-Georgeta Maruntelu, but he had not provided any evidence to confirm this. It was also noted in the respondent’s decision that the appellant was invited to interview on 11th September 2014 in Liverpool, but this had highlighted a number of inconsistencies between his and the EEA citizen’s answers. As a result, his application was refused in 2014.
3. The refusal recorded the appellant had provided various documents with the application to demonstrate the relationship, but the documents submitted were not “compelling evidence to refute the decision that your marriage was one of convenience or demonstrate that there has been a material change in your circumstances since your previous marriage interview”.
4. The decision stated that the marriage was one of convenience entered into as a means to circumvent the requirements for lawful entry to remain in the UK.
5. The grounds of appeal asserted that
(1) the judge had failed to appreciate the correct burden of proof as set out in Sadovska v Secretary of State for the Home Department [2017] UKSC 54 and,
(2) that there was an incorrect approach to the assessment of a marriage of convenience.
The grounds were expanded as follows:
Ground 1
6. the judge directed himself that the burden of proof lay squarely on the appellant and that in the case of Sadovska the Supreme Court confirmed that the burden of proof rested with the respondent when proposing removal for abuse of a right of residence. There was no reference to any relevant case law, nor any reasoning given by the judge as to why the burden ought to rest with the appellant and the judge did not appreciate the legal burden of proof lay with the respondent and did not give effect to this in the decision. This was plainly the wrong approach. The respondent had not provided a bundle for the First-tier Tribunal hearing. The interview record spoke of matters pertaining to 2002 and 2014 and could be classed as historic.
7. Even if the judge was entitled to rely on the 2015 determination following the previous refusal this was only a starting point.
8. The judge acknowledged at [8] that there were said to be new circumstances.
9. The previous First-tier Tribunal determination predated Sadovska, which of itself was a material reason to depart from those findings. The appellant’s marriage had subsisted for eight years, a further six and a half years since the previous First-tier Tribunal determination dated 15th June 2015, and a daughter had been born on 5th May 2014 and had lived with the appellant. The appellant had provided evidence from 2012 to 2014 that they both had resided together at the same address at 123 Sheringham Avenue and that the EEA national was exercising treaty rights.
Ground 2 – material error of law: incorrect approach to the assessment of a marriage of convenience
10. The judge was required to adopt the same approach as evinced in Sadovska. The first step was to determine whether the respondent had discharged the burden of proof. It was submitted that the test in Sadovska continued to apply to applications made under Appendix EU as the definition of marriage of convenience was that of a marriage entered into as a means to circumvent any criterion the appellant would have to meet in order to enjoy a right to enter or reside in the UK under the EEA Regulations or EU law. The judge did not go on to consider the predominant purpose of the marriage. It was submitted that it would have been open to the judge to find that the predominant purpose of the marriage was not to gain rights in the UK.
11. At the hearing before me Mr Hingora relied on his written grounds and Mr Walker on behalf of the Secretary of State accepted that Sadovska continued to apply to applications made under Appendix EU as to the definition of “marriage of convenience”. As such, Mr Walker conceded that the First-tier Tribunal Judge, who at [9] stated categorically that “the burden of proof is on the appellant and the civil standard of the balance of probabilities applies”, was incorrect. That was a material error of law.
12. Nowhere did the judge refer to the Supreme Court case of Sadovska and in the light of Mr Walker’s concession as to the approach to marriage of convenience under Appendix EU I find there is a material error of law in the decision.
13. Both parties agreed that the matter should be remitted to the First-tier Tribunal for a hearing de novo.
Notice of Decision

The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.

No anonymity direction is made.

Direction: Any further evidence and skeleton arguments should be filed and served at least 7 days prior to the substantive First-tier Tribunal hearing.

Signed Helen Rimington Date 24th March 2022
Upper Tribunal Judge Rimington