Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00894/2016

THE IMMIGRATION ACTS

Heard at Field House
On 13 April 2018
Decision & Reasons Promulgated
On 30 April 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

SHAIKH MAHFUJUR RAHMAN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Sowerby (counsel) instructed by Gulbenkian Andonian Solicitors
For the Respondent: Ms Kiss, Senior Home Office Presenting Officer
DECISION AND REASONS

1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge M J Gillespie promulgated on 23 October 2017, which dismissed the Appellant's appeal on all grounds.

Background

3. The Appellant was born on 18 July 1982 and is a national of Bangladesh. On 2 February 2016 the respondent decided to revoke an EEA residence card issued to the appellant on 29 January 2014 on the understanding that he was the spouse of an EEA national who was exercising treaty rights in the UK.

The Judge's Decision

4. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge M J Gillespie ("the Judge") dismissed the appeal against the Respondent's decision.

5. Grounds of appeal were lodged and on 19 February 2018 Upper Tribunal Judge Rintoul gave permission to appeal stating

It is (just) arguable that First-tier Tribunal Judge MJ Gillespie erred in failing to make proper findings as to the intentions of the parties at the date of the marriage; it is not entirely clear how their intentions on the date of marriage were assessed, given the focus on future intentions.

All grounds are arguable.

The Hearing

6. (a) For the appellant, Mr Sowerby moved the grounds of appeal. He told me that the fundamental flaw in the decision is twofold. The first is that the Judge does not apply his mind to the intention of the appellant and the EEA national at the time of marriage. The second is that the principles in Papagorjii (EEA Spouse- marriage of convenience) Greece [2012] UKUT 00038 (IAC) have not been correctly applied. He then went through each of the Five grounds of appeal.

(b) Mr Sowerby told me that the Judge misdirected himself about the appropriate time for an assessment of a marriage of convenience and that the Judge's focus had been entirely on the circumstances at the date immigration officers visited the appellant's home.

(c) Mr Sowerby be told me that throughout [15] of the decision the Judge finds that there is mutual affection between the appellant and the EEA national, but does not apply those findings to the question of whether or not they are parties to a genuine marriage.

(d) Mr Sowerby referred me to the appellant's supplementary bundle, which contains witness statements. He told me that there was evidence that the property occupied by the appellant was being refurbished; he told me that there was an abundance of evidence that the appellant and EEA national had lived at two addresses together, but he told me that none of that evidence was reflected in findings of fact made by the Judge. He argued that there has been an inadequate analysis of the evidence.

(e) Mr Sowerby turned to the Judge's treatment at [13] of the sponsor's trip to Bangladesh and told me that the Judge's findings there are unsustainable. He then moved to the fifth ground of appeal and told me that the Judge has not given adequate reasons for rejecting the evidence of the appellant and his witnesses who include the EEA national and the EEA national's sister. Mr Sowerby reminded me that the test in Papajorgii requires consideration of an explanation given by the appellant. He told me that crucial part of the guidance in Papajorgii has not been followed by the Judge and that, although a plausible explanation is given by the appellant which is supported by his witnesses, that explanation has not been considered by the Judge.

(f) Mr Sowerby urged me to allow the appeal and to set the decision aside.

7. For the respondent, Miss Kiss told me that the decision does not contain material errors. She took me to paragraph 41 of Rosa [2016] EWCA Civ and told me that the Judge's consideration of the facts and circumstances at the date of the visit by immigration officers and the date of the appeal hearing was the correct way to assess intentions at the time of marriage. She took me to [11] of the decision and told me that, there, the Judge sets out adequate reasons for rejecting the evidence of the appellant and his witnesses. She reminded me that at [5] of the decision the Judge specifically takes guidance from Papajorgii. She told me that the Judge carefully considered all of the evidence before reaching a decision which is well within the range of decisions available to the Judge. She urged me to dismiss this appeal and to allow the decision to stand.

Analysis

8. In Rosa [2016] EWCA Civ it was held that the focus in relation to a marriage of convenience ought to be on the intention of the parties at the time the marriage was entered into, whereas the question of whether a marriage was subsisting looked to whether the marital relationship was a continuing one. Nonetheless, the First-Tier was correct to look at the evidence concerning the relationship between the Claimant and the Sponsor after the marriage itself, since that was capable of casting light on their intention at the time of marriage.

9. It was said in Sadovska v SSHD [2017] UKSC 54 that the objective to obtain the right of entry and residence must be the predominant purpose for the marriage to be one of convenience and a marriage could not be considered to be a marriage of convenience simply because it brought an immigration advantage. "Should the tribunal conclude that Mr Malik was delighted to find an EU national with whom he could form a relationship and who was willing to marry him, that does not necessarily mean that their marriage was a "marriage of convenience" still less that Ms Sadovska was abusing her rights in entering into it".

10. In Rosa [2016] EWCA Civ it was held that the legal burden was on the SSHD to prove that an otherwise valid marriage was a marriage of convenience so as to justify the refusal of a residence card under the EEA Regulations. The legal burden of proof in relation to marriage lay on the Secretary of State, but if she adduced evidence capable of pointing to the conclusion that the marriage was one of convenience, the evidential burden shifted to the applicant (paras 24 - 27). That the burden of proof is on the respondent is now put beyond doubt by Sadovska v SSHD [2017] UKSC 54

11. The Judge's findings of fact lie between [7] and [16] of the decision. At [5] the Judge correctly takes guidance from Papajorgii, and at [6] the Judge takes guidance from Sadovska. At [7] the Judge explains why he finds the evidence of the immigration officers visit to the appellant's house persuasive. He concludes [7] by saying

It is necessary for the appellant to give a satisfactory innocent explanation of the matter.

12. The Judge moves on to consider whether or not the determinative evidence amounts to a satisfactory innocent explanation. At [9] and [10] the Judge says that there are two main reasons for rejecting the evidence for the appellant. The first is the EEA national's view of marriage expressed in a witness statement; the second is that the house the appellant lived in contain none of the EEA national's possessions. At [11] the Judge details inconsistency in the evidence of the EEA national.

13. [9] contains an incomplete reference to the witness statement of the EEA national. At [9] the Judge quotes from part of paragraph 20 of the EEA national's witness statement. The Judge interprets the EEA national's evidence is being that she sees no significance in marriage, when in fact what she says is that her marriage as more important than the piece of paper which forms a marriage certificate. The Judge has misinterpreted her evidence.

14. At [11] the Judge focuses on the conflict between the EEA national's account of her possessions remaining in the property which she viewed as home with the appellant, and the immigration officer's report that none of her possessions were there. The Judge does not adequately explain why he prefers the immigration officer's contemporaneous notes to the EEA national's evidence.

15. The Judge's findings at [9] [10] and [11] of the decision are (in the Judge's mind) determinative of the appeal. Between [13] and [16] the Judge sets out factors which weighed in the appellant's favour. At [13] the Judge records that the appellant and EEA national visited Bangladesh together. At [14] the Judge finds that the documentary evidence is consistent with joint occupation, which he distinguishes from evidence of permanent marital commitment. At [15] the Judge finds that there is evidence of affection passing between the appellant and the EEA national.

16. In his witness statement the appellant gives his account of what happened when an immigration officer visited his home. The decision does not contain an analysis of that evidence and does not explain why the immigration officer's notes are given greater weight than the evidence of the appellant, the evidence of the EEA national and the evidence of the appellant's other witnesses. The Judge does not adequately explain why evidence of joint occupation & of mutual affection (which may be a significant challenge to the immigration officer's account) is rejected.

17. In the final sentence of [5] of the decision the Judge identifies his task, but the judge does not analyse "the explanations and information of the claimant". Instead the Judge places weight on an immigration officers notebook and at [11] is critical of the EEA national's evidence.

18. The result is that the Judge falls into material error of law for failing to give reasons for rejecting the explanation offered by the appellant. It is hard to find any analysis of the explanation given by the appellant in the decision.

19. The Judge made findings about the appellant's circumstances at the date the immigration officers visited. Even though the appellant, the EEA national and the marriage witness gave evidence about the appellant's circumstances at the date of marriage, the decision does not contain meaningful analysis of that evidence. The appellant's current circumstances have relevance and can shed light on the intention at the date of marriage, but some consideration must be given to the available evidence of intention at the date of marriage. Rosa draws a clear distinction between a marriage of convenience and the question of whether or not that marriages subsisting.

20. In MK (duty to give reasons) Pakistan [2013] UKUT 00641 (IAC), it was held that (i) It was axiomatic that a determination disclosed clearly the reasons for a tribunal's decision. (ii) If a tribunal found oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it was necessary to say so in the determination and for such findings to be supported by reasons. A bare statement that a witness was not believed or that a document was afforded no weight was unlikely to satisfy the requirement to give reasons.

21. As the decision is tainted by material errors of law I must set it aside. I am asked to remit this case to the First -tier. I consider whether or not I can substitute my own decision, but find that I cannot do so because of the extent of the fact-finding exercise necessary.

Remittal to First-Tier Tribunal
22. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or

(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
23. In this case I have determined that the case should be remitted because a new fact-finding exercise is required. None of the findings of fact are to stand and a complete re-hearing is necessary.
24. I remit this case to the First-tier Tribunal sitting at Hatton Cross to be heard before any First-tier Judge other than Judge M J Gillespie.
Decision
25. The decision of the First-tier Tribunal is tainted by material errors of law.
26. I set aside the Judge's decision promulgated on 23 October 2017. The appeal is remitted to the First-tier Tribunal to be determined of new.

Signed Paul Doyle Date 23 April 2018

Deputy Upper Tribunal Judge Doyle