IA/03798/2021

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The decision


IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2022-000134
(ia/03798/2021) EA/50591/2021


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On the 8th April 2022
On the 23rd June 2022




Before

UPPER TRIBUNAL JUDGE ALLEN

Between

Mr Petrit Ferizolli
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr G Lee, instructed by M Reale Solicitors
For the Respondent: Ms H Gilmour, Senior Home Office Presenting Officer


DECISION AND REASONS


1. This is the appeal of Mr Ferizolli against a decision of the Secretary of State of 4 March 2021, having applied for a right of residence as an unmarried partner in a durable relationship with an EEA national exercising treaty rights. Mr Ferizolli appealed to the First-tier Tribunal against the refusal decision and the judge dismissed his appeal. Permission to appeal was granted essentially on two grounds.

2. I have representation from Mr Lee, who also appeared below, on behalf of Mr Ferizolli and Ms Gilmour on behalf of the Secretary of State. Ms Gilmour, I think very realistically and properly, accepts that ground 1 is made out. The judge simply applied the wrong burden of proof in this case when he set out what he understood the burden to be at paragraph 49 of his decision, placing the burden on a balance of probabilities on the appellant as opposed to the guidance in Sadovska [2017] UKSC 54 and other authorities that there is a legal burden on the respondent to show that the marriage or relationship is one of convenience and then, if done so, the burden shifts. That by itself is entirely fatal to the judge’s decision though I think there are also difficulties with the approach to the evidence in that there was live evidence from two witnesses and written evidence from other witnesses and this was really just wrapped up by the judge at paragraph 57 with no specific reference to that evidence, which I think is again clearly a material error of law.

3. So, the outcome of this is that the matter will have to be remitted to the First-tier Tribunal for a full rehearing.

Notice of Decision

The appeal is allowed to the extent set out above.

No anonymity direction is made.





Signed Date 29 April 2022
Upper Tribunal Judge Allen