IA/03646/2021

• Status of case: Unreported
• Hearing date: 27 Apr 2022
• Promulgation date: 23 Jun 2022
• Publication date: 23 Jul 2024
• Last updated on: 23 Jul 2024

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001567
(IA/03646/2021) EA/50816/2021

THE IMMIGRATION ACTS

Heard at Field House, London
Decision & Reasons Promulgated
On Wednesday 27 April 2022
On Thursday 23rd June 2022



Before

UPPER TRIBUNAL JUDGE SMITH

Between

MUHAMMED SADIQ
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Mr M Aslam, Counsel instructed by Dotcom Solicitors
For the Respondent: Ms H Gilmour, Senior Home Office Presenting Officer.


DECISION AND REASONS

1. The Appellant appeals against the decision of First-tier Tribunal Judge J P Groom dated 15 December 2021 (“the Decision”). By the Decision, the Judge dismissed the Appellant’s appeal against the Respondent’s decision dated 19 March 2021 refusing him a residence card as the extended family member (durable partner) of an EEA Polish national, Ms Kinga Iwona Bak (hereafter “the Sponsor”).

2. The Respondent did not accept that the Appellant is in a durable relationship with the Sponsor. Judge Groom reached the same conclusion.

3. The Appellant appeals on several grounds. Neither the Tribunal nor the Respondent had the full set of grounds until the hearing before me. The grounds on the Tribunal’s electronic file were of one page only and even that page was not the first page of the grounds which Mr Aslam produced at the hearing. Nonetheless, both I and Ms Gilmour accepted that those were the grounds which were lodged and considered by the First-tier Tribunal as they bear relation to the terms of the grant of permission.

4. In short summary, the Appellant says that certain findings made were not open to the Judge on the evidence, one arose from a point not put to the Appellant and that the Judge failed to take account of material evidence.

5. Permission to appeal was granted by First-tier Tribunal Judge Mulready on 3 March 2022 in the following terms so far as relevant:

“..3. The judge states that the ‘documentary evidence appears to end around 2018’ but before him [sic] were five documents post-dating 2018, being from 2020 and 2021. This is an arguable error of law material to the outcome of the appeal, because all five of those documents are relevant to the sole issue in dispute in the appeal, which is whether the Appellant and Sponsor were in a durable relationship after 2018. I am less persuaded by the other grounds of appeal, but grant permission on all grounds as they may disclose arguable errors of law material to the outcome of the appeal and so should also be considered.
4. Permission to appeal is granted.”

6. The matter came before me to determine whether the Decision contains an error of law and, if I so concluded, to consider whether to set it aside. If the Decision is set aside, it is then necessary for the decision to be re-made either in this Tribunal or on remittal to the First-tier Tribunal.

7. At the outset of the hearing, Ms Gilmour indicated that she conceded there was an error of law in the Decision for reasons I have set out below. She accepted that the error was material. Both representatives agreed that, in light of that error, the appeal should be remitted to the First-tier Tribunal.

8. I therefore found there to be an error of law in the Decision. I set the Decision aside without preserving any findings. The focus of this appeal is the credibility of the Appellant’s claim to be in a relationship with the Sponsor. I agreed with the representatives that it was appropriate to remit the appeal as it needs to be determined entirely afresh. I indicated that I would set out my reasons for the concession and finding of error of law briefly which I now turn to do.

9. At [34] of the Decision, the Judge said this about the evidence before her:

“I also find that no satisfactory explanation has been provided by either the Appellant or Ms Bak as to why the documentary evidence adduced appears to end around the time of 2018. There is only one council tax reminder which has been provided in August 2020, page 65 refers. This is for the property 2 Holdfield and in the name of Ms Bak only and refers to the 25% discount as only one adult is resident. This is in contrast to the tenancy agreement which appears in the name of the Appellant and Ms Bak.”

10. As is evident from the foregoing taken also alongside what is said at [11] and [12] of the Decision, the Judge did recognise that there were two documents in the period after 2018 with which the Judge dealt. As Ms Gilmour accepted and is said in the grant of permission, however, those were not the only documents. The Judge’s comment that the documentary evidence (other than those two documents) ended in 2018 was therefore in error.

11. I have considered whether it can be said that the Judge’s error was material given also the other findings made. Other of the findings are criticised in the grounds but, as is said in the grant of permission, the other grounds are “less persuasive”. In that regard, it is far from clear to me that the Respondent had accepted that the relationship was a durable one up to 2018 (as is said in the Appellant’s grounds). Although the Respondent says in her review that “there is no evidence submitted that the A and his S are residing together in a relationship akin to marriage since 2018”, I do not read that as necessarily accepting that the Appellant and the Sponsor were in a durable relationship up to that point. The paragraph is ambiguous. It might be reference to the lack of evidence of residence at the same address after 2018 or it might be reference to the lack of evidence of a durable relationship after 2018. The former is as likely as the latter given what is said in the original decision letter when read with the remainder of [4] of the Respondent’s review.

12. Nonetheless, in light of that lack of clarity as to the Respondent’s case coupled with the Judge’s failure to take into account all the evidence concerning the relationship after 2018, I am persuaded that there is an error as Ms Gilmour conceded and that the error is a material one. I observe in passing that the Respondent may wish to clarify her case as to the relationship up to 2018 prior to the next hearing.

13. Whether or not the Respondent accepts that the Appellant and Sponsor were in a durable relationship prior to 2018, she disputes that position after 2018. The focus of the appeal is therefore on the credibility of the Appellant’s claim. For that reason, the acceptance of the error made means that none of the findings made by Judge Groom can be preserved. The appeal will need to be re-determined entirely afresh.

CONCLUSION

14. In conclusion therefore, I find that there is an error of law disclosed by the Appellant’s grounds and based on the Respondent’s concession. I set aside the Decision. It is not appropriate to preserve any part of the Decision as the appeal turns on the credibility of the Appellant’s case. As the Appellant’s credibility is at the core of this appeal and the appeal will have to be redetermined entirely afresh, it is appropriate to remit the appeal to be re-heard.


DECISION
I am satisfied that the Decision involves the making of a material error on a point of law. The Decision of First-tier Tribunal Judge J P Groom dated 15 December 2021 is set aside. No findings are preserved. The appeal is remitted to the First-tier Tribunal for re-hearing before a Judge other than Judge Groom.

Signed L K Smith Dated: 28 April 2022
Upper Tribunal Judge Smith