Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA011452015

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 25th February 2016
On: 16th June 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Secretary of State for the Home Department
Appellant
And

Felix Setz Kaku
(no anonymity direction made)
Respondent

For the Appellant: Mr Tarlow, Senior Home Office Presenting Officer
For the Respondent: Mr Garrod, Counsel instructed by Justice and Law

DETERMINATION AND REASONS

1. The Respondent is a national of Ghana date of birth 12th April 1972. On the 3rd September 2015 the First-tier Tribunal (Judge Devittie) allowed his appeal against refusal to issue him with a residence card confirming his right of residence as the family member of an EEA national exercising treaty rights. The Secretary of State now has permission to appeal against that decision1.

2. The matter in issue before the First-tier Tribunal was whether the Respondent was validly married, and if not, whether he was in a durable relationship with an EEA national.

3. The Respondent had married his German wife by way of a Ghanaian customary marriage where neither party was physically present, both being represented by proxies. Judge Devittie accepted on the evidence before him that this marriage was considered valid by Ghanaian law, and applying the principles in CD (Brazil) [2008] UKIAT 00080, found that it must too be recognised by operation of UK law, and allowed the appeal.

4. The Secretary of State now complains that the First-tier Tribunal has entirely failed to engage with the decisions in Kareem (Proxy Marriage - EU Law) [2014] UKUT 00024 (IAC) and TA and Ors (Kareem explained) Ghana [2014] UKUT 00315 (IAC). These cases hold that where an applicant claims a right of residence as a family member under the Immigration (EEA) Regulations 2006, he must show that he is entitled to that right in the relevant EEA country. The Respondent's wife being German, he would only be entitled to a right of residence as a result of his marriage where their marriage was recognised by the German authorities.

5. Before me Mr Garrod accepted, notwithstanding his objection to that line of jurisprudence, that the Tribunal had failed to deal with Kareem/TA. Mr Garrod pointed out that his own skeleton before the First-tier Tribunal had addressed these cases and that some evidence had been produced about the recognition of Ghanaian customary marriages in Germany. The decision makes no reference at all to this evidence, or to Kareem/TA. Nor are any express findings made about whether the couple are in a durable relationship, despite the fact that a good deal of evidence was produced going to that issue. For those reasons the reasoning was incomplete and the decision must be remade.

6. Mr Tarlow confirmed that there is no challenge to the finding that the marriage would be recognised as valid in Ghana.

Decisions

7. The decision of the First-tier Tribunal is set aside. Due to the extent of the fact finding required, and with the agreement of the parties, the appeal is remitted to the First-tier Tribunal.

8. I was not asked to make an order for anonymity and in the circumstances I see no reason to do so.

Upper Tribunal Judge Bruce
25th February 2016