Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/04646/2015

THE IMMIGRATION ACTS

Heard at Field House, London Decision & Reasons Promulgated
On the 9th September 2016 On the 22nd September 2016

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
GRACE [A]
(Anonymity Direction not made)
Claimant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant in the Upper Tribunal
Representation:
For the Claimant: Mr S Unigwe (Counsel)
For the Secretary of State: Ms Fijiwala (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is the Secretary of State's appeal against the decision of First-tier Tribunal Judge Higgins promulgated on the 24th February 2016, in which he allowed the Claimant's appeal against the Secretary of State's decision to revoke her residence card and to refuse her entry into the United Kingdom under Regulation 19(2) of the Immigration (European Economic Area) Regulations 2006.
2. Within the decision of First-tier Tribunal Judge Higgins, he found that the Claimant was a Nigerian national who was born on the 22nd August 1989. He found that the Claimant was said to have married a Mr [GV] in the United Kingdom on the 29th June 2010, and that she had been issued with a residence card as a family member of an EEA national exercising treaty rights on the 22nd December 2010, which was valid until the 22nd December 2015. Mr [V] is a German national.
3. On the 30th January 2015, the Claimant arrived at Heathrow Airport and sought entry to the United Kingdom. It is said that immigration officers at the border enquired into her circumstances and concluded that her marriage to Mr [V] had been a marriage of convenience and therefore she was refused entry clearance under Regulation 19(2) and her residence card was revoked.
4. The Claimant had appealed against that decision to First-tier Tribunal Judge Higgins. Judge Higgins found, having heard from the Claimant and from Mr [V], for the reasons which are set out in full within the judgement and are therefore not repeated in their entirety here, that although he was satisfied that the Claimant had attempted initially at least to mislead the officer who conducted her formal interview about where she was living and she was found to provide contradictory accounts of when she had last spoken to Mr [V] at [22] and although First-tier Tribunal Judge Higgins had noted that on her initial landing card the Claimant had said that Mr [V] was variously Japanese, British, Spanish and German at [3], he went on to find that she had been able to state Mr [V]'s name, his nationality, his date of birth and date of their marriage, his current address and telephone number at [23] and went on to say that having heard from Mr [V] he found him to be a plausible witness, who had given his evidence spontaneously and in an understated fashion. The Judge found that Mr [V]'s explanation of the circumstances which led to the deterioration of his relationship with the Claimant he found to be entirely credibly and not one which might readily have been fabricated at [24]. He found that the Claimant was constitutionally anxious and easily unnerved, but found that it was plain from her formal interview that she was aware that her husband was German and found that he was satisfied that the Claimant's performance at Heathrow was probably the product of her unwillingness to disclose the address at which she was at that stage living and concern about the consequence of the fact that she was in the process of divorcing an EEA national on whom her right of residence depended, which she delayed disclosing at [25].
5. The Judge went on to find to that "Having regard to the totality of the information before me, and bearing in mind the favourable view I take of Mr [V]'s evidence and the fact that the Appellant continued to live at [~] Road as an address for her correspondence for 4 years after they were married, the Respondent has not satisfied me that the Appellant's marriage was more likely than not a marriage of convenience and I allow the appeal on the ground that the Respondent's decisions breached the Appellant's rights under the Community Treaties in respect of her residence in the UK.".
6. The Secretary of State has now sought to appeal that decision for the reasons set out within the Grounds of Appeal. This again, is a matter of record, but in summary, within the Grounds of Appeal it is argued that the First-tier Tribunal Judge erred in giving substantial weight at paragraph 25 of his decision to the fact that the Appellant kept [~] Road as her correspondence address for 4 years after her and the Sponsor were married. It is said that the Judge has failed to consider that the address in question was a shared accommodation at which at least 1 other of the Claimant's friends, other than the Sponsor resided and was an address where she had stayed prior to the commencement of her alleged relationship with Mr [V] and at which she could have resided purely as a paying guest. It was said in the second ground of appeal that the Judge has given inadequate weight to the numerous errors and credibility issues highlighted at paragraphs 7, 8, 20, 21 and 25 of the decision, which he accepts damages the Claimant's credibility. It is argued that the Claimant was still maintaining the charade of blaming 2 separate immigration officers for fabricating evidence against her, a fact found to be without merit by the Judge and that this should have been given considerable weight in favour of the Secretary of State.
7. Within the third ground of appeal it is argued that the Judge has given undue weight to the evidence of the Sponsor and that the Judge found at paragraph 24 that Mr [V] had an incentive to give false evidence and that therefore the Judge approached his evidence with caution, but the Judge went on to allow the case on the basis of Mr [V]'s evidence along with the fact that the Claimant used [~] Road as her correspondence address for 4 years, despite not being there for the whole time. It is argued that the Judge had to assess the evidence in the round and that he has failed to do so and that the judgement is in error.
8. Permission to appeal has been granted by First-tier Tribunal Judge Kelly on the 26th September 2016, when he found that:
"Whilst not characterised as such, the matters complained of in the grounds give rise to an argument of irrationality in the Tribunal's findings of fact. This includes (but is not limited to) the fact that the Tribunal gave weight to the Appellant's testimony in spite of its earlier finding that she had (among other things) falsely accused immigration officers of fabricating their records of interview with her. Permission to appeal is accordingly granted."
9. In her oral submissions to me, Miss Fijiwala relied upon the Grounds of Appeal and argued that it was paragraph 16 of the decision which was of primary concern to the Secretary of State in that there the Judge had found that if the couple had lived together at [~] Road, shortly before the marriage on the 29th June 2010 until the 25th August 2012 when the Claimant left him, their marriage was unlikely to have been a marriage of convenience. She argued that the Judge had concentrated on this fact and not looked at the evidence in the round.
10. In his oral submissions on behalf of the Claimant, Mr Unigwe argued that the First-tier Tribunal Judge did not simply have the evidence regarding the address at [~] Road, but had the entire evidence of the Claimant and Sponsor before him before reaching his conclusion. He argued that the couple had got married in 2010 and there was no dispute about that and that she had been granted a residence permit. He argued that although there was a dispute as to the period of time during which the Sponsor and the Claimant lived together, the Judge had the evidence that the Claimant had lived at [~] Road from between 2010 and 2012 and that thereafter the Claimant had used that address as a correspondence address until her divorce in 2015.
11. In respect of ground 1 of the Grounds of Appeal he argued that the couple had occupied 1 room at the premises, and the fact that it was therefore shared accommodation was irrelevant. He argued that the Judge's reasoning was well reasoned and that the Judge had found that the Secretary of State had not established on the balance of probability that it was a marriage of convenience and the Judge had looked at the demeanour of the witnesses and found the Sponsor to be a credible witness. In respect of the second ground of appeal he argued that the Judge had properly considered the evidence and assessed the areas in which he did not find the Claimant to be credible, but had found the Sponsor to be credible and had decided accordingly. He further argued that in respect of the third ground of appeal the weight to be attached to the evidence of the Sponsor was a matter for the Judge and did not disclose an error of law.
12. In her submissions in reply, Miss Fijiwala argued that the Judge was not clear in his findings regarding Mr [V] given that he had said that Mr [V] had an incentive to give false evidence. She argued that the findings at paragraph 25 of the decision were contradictory.
13. I formally reserved my decision on error of law and materiality.
My Findings on Error of Law and Materiality
14. Although Miss Fijiwala argued that paragraph 16 of the judgement of First-tier Tribunal Judge Higgins was of concern, the Judge at that paragraph stated that:
"16. If as the Appellant and Mr [V] claim is the case, they lived together at [~] Road from shortly before their marriage on 29th June 2010 until 25th August 2012 when she left him, their marriage is unlikely to have been a marriage of convenience".
15. I do not accept that the Judge erred in considering the question as to whether or not the couple had genuinely lived at [~] Road, which was said to have been the matrimonial home. Further, in my judgement, First-tier Tribunal Judge Higgins could not be said to have erred in finding that if the couple had genuinely lived together at the property for over 2 years, their marriage was unlikely to have been a marriage of convenience. That was a consideration which I found was perfectly open to the Judge in this case.
16. Further, First-tier Tribunal Judge Higgins had clearly noted the discrepant evidence given by the Claimant on her landing card regarding the nationality of Mr [V] as to whether he was Japanese, British, Spanish or German, and the Judge went on to carefully consider between paragraphs 19 and 21 of his decision, the serious allegations that had been made by the Claimant regarding her accusations that 2 border officers had fabricated their records of conversations with her. As the Judge stated he had also given very careful consideration to the contents of the notes of the record on the reverse of the landing card and the record of her formal interview and found that the lack of coherence and completeness which characterised the answers the Claimant recorded as having provided at Heathrow, which she found was strikingly similar to the manner in which she answered questions put to her at the appeal hearing.
17. The First-tier Tribunal Judge found that he could see no reason why border officers with whom the Claimant dealt might have chosen to knowingly mis-record what was said to them and he found that he was satisfied that the records of information she provided were made in good faith and that he could rely upon them at [21] and went on to find specifically that the Claimant had attempted, initially at least, to mislead the officer who conducted her formal interview about where she was living and she provided contradictory accounts of when she had last spoken to Mr [V] at [22].
18. However, the Judge I find was entitled then to conclude that the Claimant had thereafter been able to state her husband's name, nationality, date of birth and date of marriage, his current address and phone number. Further, the First-tier Tribunal Judge had the benefit of hearing oral evidence from the live witnesses, and although clearly he was unimpressed by the evidence given by the Claimant herself, it is clear from the Judge's findings at [24] that he accepted the evidence given by Mr [V], having heard from him. The Judge at [24] took note that Mr [V] would have had an incentive to give false evidence in support of the Claimant's appeal to avoid being accused of having fabricated the marriage and stated specifically that he had approached his evidence with caution, yet the Judge found him nevertheless to be a plausible witness and found that he had given his evidence spontaneously in an understated fashion.
19. The Judge went on to explain that the explanation provided as to the circumstances which led to the deterioration of the relationship with the Claimant was found to be entirely credible and not one which might readily have been fabricated. It is clearly a matter for the First-tier Tribunal Judge to assess the quality of the evidence given by the witnesses, and in my judgement, the First-tier Tribunal Judge was correct in noting that Mr [V] may well have had a reason for giving false evidence and that he had approached his evidence with caution, but then quite properly went on to give reasons as to why he found him to be a credible witness regarding the relationship and the breakdown of the relationship.
20. The First-tier Tribunal Judge went on at [25] to give clear, adequate and satisfactory reasons as to the evidence given by the Claimant herself and found that she was constitutionally anxious and easily unnerved and that her performance at Heathrow was probably the product of her unwillingness to disclose the address at which she was at that stage living and concerned about the consequences of the fact that she was in the process of divorcing the EEA national upon whom her right of residence depended. This I find, was a finding that was open to the Judge upon the evidence before him. Further, I find that it was open to the Judge on the evidence to find that the Claimant had in fact continued to use [~] Road as an address for correspondence for 4 years after they were married, up until the date of their divorce.
21. In respect of the allegation that the Judge has erred in giving substantial weight at paragraph 25 of the decision to the fact the Claimant kept [~] Road as a correspondence address for 4 years after she and the Sponsor were married, and that he had appeared to have allowed the case predominantly on this matter, but had failed to consider the fact the address in question was a shared accommodation at which at least 1 other of the Claimant's friends resided and was a property where she had stayed prior to the commencement of the relationship with Mr [V], was a property where she could have resided herself purely as a paying guest, I find that this ground of appeal has no merit. The First-tier Tribunal Judge was perfectly entitled to consider whether or not the Claimant had lived at [~] Road with the Sponsor as the matrimonial home up until the breakdown of their relationship in 2012, and he properly considered the documentation provided by the Claimant at [18] in that regard. It was also open to him having heard from the Sponsor whose evidence he accepted and in respect of whom he gave adequate and sufficient reasons for finding him credible at [24], to find that the account that the Sponsor gave of having continued to use [~] Road as a correspondence address despite having moved out was credible. He has given clear and adequate reasons as to why he accepted that the Claimant had lived there with Mr [V] during the period of their relationship up until 2012, and thereafter used it as a correspondence address. The assertion by the Secretary of State that the reasons of the judge are contradictory, is simply not made out, when one reads the paragraph in its entirety.
22. Further, in respect of the second ground of appeal, which alleges that the Judge has given inadequate weight to the numerous errors in credibility as highlighted within the determination at paragraphs 7, 8, 20, 21 and 25, and the fact that the Claimant was still maintaining her charade that 2 separate immigration officers had fabricated the evidence against her, it is clear that the Judge did take account of the discrepancies in the evidence, as his fully recorded the same. Further, he noted specifically the inconsistencies on the lantern card and in her formal interview, and found specifically that she had initially at least attempted to mislead officers who conducted the formal interview. However, the Judge went on at [25] to find that there were reasons why the Claimant had attempted to mislead officers at Heathrow, in terms of her being in the process of divorcing an EEA national and not wishing to disclose the address at that stage where she was living. This again was a finding open to the Judge, and the weight to be attached to these discrepancies and inconsistences, again was a matter for the First-tier Tribunal Judge. His reasoning in that regard was clear and adequate. It cannot be said that the Judge's findings in that regard were perverse, or irrational, and such findings were open to him on the evidence.
23. Further, in respect of the third ground of appeal that the Judge has given undue weight to the evidence of the Sponsor, the Judge clearly noted that the Sponsor had an incentive to give false evidence, but the weight to be attached to the evidence of the Sponsor and his finding that the Sponsor was credible, was clearly sufficiently and adequately explained, and his findings in that regard having assessed the evidence of the Sponsor were open to him. It was clearly a matter for the Judge to assess the credibility of the witnesses, which he has properly, sufficiently and adequately done. The amount of weight that should be attached to that evidence is a matter for the Judge in the absence of an irrationality or perversity, and there is no evidence that the Judge's findings in that regard were either irrational or perverse. In my judgement the Grounds of Appeal simply amount to a disagreement with the Judge's findings, and do not reveal any material error of law. The decision of First-tier Tribunal Judge Higgins not disclosing any omission or error of law, the decision is maintained.
Notice of Decision
The decision of First-tier Tribunal Judge Higgins does not disclose any material error of law and is maintained. The Secretary of State's appeal is dismissed;
I make no order in respect of anonymity, no such order having been sought before me.
Signed
RF McGinty
Deputy Upper Tribunal Judge McGinty Dated 17th September 2016