Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/06785/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 September 2016
On 13 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

ranjit singh cheema
(ANONYMITY DIRECTIOn not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr V Makol, Legal Representative from Maalik and Co
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge J C Hamilton (the judge), promulgated on 4 March 2016, in which he dismissed the appeal. That appeal had arisen following the decision of the Respondent, dated 2 February 2015, to refuse to issue a residence card to the Appellant under the Immigration (European Economic Area) Regulations 2006 (the Regulations). The Respondent had been satisfied that the Appellant's marriage to a Romanian national was one of convenience only and in addition that the Romanian national was not in fact a qualified person.

The judge's decision
2. In a lengthy and detailed decision the judge sets out at length the documentary and oral evidence before him (see paragraphs 12 to 40). At paragraph 43 he correctly directs himself in law to the case of Papajorgi (EEA spouse - marriage of convenience) Greece [2012] UKUT 00038 in respect of the marriage issue (see also now the Court of Appeal's decision in Rosa [2016] EWCA Civ 14).
3. The findings of fact begin at paragraph 48. The judge had concerns about the nature of photographs provided by the Appellant. Between paragraphs 50 and 52 the judge sets out concerns he had about the EEA national's employment. Paragraphs 53 onwards address concerns relating to the genuineness of the relationship (more particularly the nature of the relationship as at the time of the marriage). The judge finds that the evidence was problematic in respect of the alleged cohabitation of the Appellant and his wife at a particular address, and the existence of inconsistencies relating to the names of children in respect of whom the couple were said to have looked after at various points. Paragraph 57 refers to inconsistent evidence relating to tattoos on the EEA national's body. Paragraph 58 concerns matters relating to the attendees at the wedding. Paragraph 60 notes the evidence of two additional witnesses who attended the hearing, it being said that their evidence was consistent with the Appellant being in a genuine relationship with the EEA national and that this was taken into account when considering the evidence as a whole. At paragraph 61 concerns were expressed about the Appellant and his wife's omission in respect of activities allegedly undertaken in the temple in which they were at some point residing.
4. Ultimately the judge finds that the evidence as a whole from the Appellant and his wife was not credible and that the Respondent had shown on the balance of probabilities that the Appellant's marriage was one of convenience only. In addition the judge finds that the EEA national was not employed as claimed. At paragraph 72 the judge purports to dismiss the appeal under the Immigration Rules.

The grounds of appeal and grant of permission
5. The grounds of appeal are fairly lengthy and seek to challenge a variety of elements of the judge's decision. It is said on more than one occasion that the judge had "gone on a frolic of his own". In granting permission to appeal First-tier Tribunal Judge Frankish was of the view that there had been a delay of five months in writing the determination and that this may have led to factual errors by the judge when preparing his written decision.
The hearing before me
6. At the outset Mr Makol accepted that no concession had in fact been made by the Respondent at any time as to the EEA national's alleged employment. This much was clear from my reading of the judge's typed Record of Proceedings. Mr Kotas noted that the Presenting Officer's own note of the hearing was consistent with this. Mr Makol certainly provided no evidence to the contrary.
7. Mr Makol accepted that the judge had correctly directed himself in law in respect of the marriage of convenience issue. In terms of the photographs Mr Makol submitted that the judge had made an incorrect assumption as to when they were taken. However, he also confirmed to me that there was no evidence from the Appellant as to when they were in fact supposedly taken. In respect of the address, Mr Makol submitted what was said in paragraph 55 was not enough. The couple had been moving their things out gradually and the judge had failed to take account of this. In respect of the inconsistency as to the children's names Mr Makol suggested that this may have been because the names used by the EEA national were nicknames only, although he acknowledged that there was no evidence of this before the judge. In terms of the tattoos, Mr Makol submitted that the judge should have considered the fact of the Appellant's initials being on the EEA national as being a significant factor in favour of the genuineness of the marriage. Mr Makol accepted that the point made at paragraph 58 about attendees at the wedding had not been challenged in the grounds of appeal. In respect of the evidence on activities undertaken at the temple, Mr Makol referred to and relied upon paragraph 12 of the grounds. He accepted that the finding in paragraph 66 as to the absence of a durable relationship was an alternative finding to that made on the marriage of convenience point in the preceding sentence within that paragraph.
8. He submitted that the judge had been wrong to have dismissed the appeal under the Rules when this of course was an EEA case. Mr Makol suggested that even on the findings made by the judge it was perverse of him to conclude that the marriage was one of convenience only. Finally, in respect of paragraph 53, Mr Makol suggested that the judge was confused. He had failed to set out the positives but had only set out the negatives. He posed the question as to why the judge had mentioned that consistency may be as a result of fabrication of an account.
9. In respect of the employment issue Mr Makol relied heavily upon the fact that the alleged employer was a functioning company and registered at Companies House. In addition there were two letters from the employers. This was all sufficient evidence to conclude that the EEA national was employed as claimed.
10. Mr Kotas noted that the issue of alleged delay in writing the decision was not mentioned in the grounds at all. He submitted that this really was nothing more than a reasons challenge, and if one was to read the decision as a whole it was wholly sustainable. In respect of paragraph 53 the judge did give examples of inconsistencies that were not being held against the Appellant. Much of the submissions from Mr Makol were said to be simple disagreements. There was no perversity whatsoever in the judge's decision. A careful analysis has been undertaken in respect of the EEA national's employment.
11. In reply Mr Makol submitted that the evidence of the witnesses had not been considered by the judge. He re-stated the significance of the fact of the tattoos on the EEA national's body.

Decision on error of law
12. As I announced to the parties at the hearing, I find that there are no material errors of law in the judge's decision. Having regard to the decision as a whole, the grounds of appeal and the submissions made by Mr Makol, I find that the challenge is in reality nothing more than a series of disagreements and attempts to re-argue points made before the judge, and that no errors of law had been shown to exist.
13. Taking first the marriage of convenience issue, it may be right that the judge made an assumption as to when the photographs were taken. However his assumption was, I find, based on evidence before him, namely that of the EEA national when she had told him that the couple had gone out for a sightseeing visit to London the weekend before the hearing. I also note that there was no specific evidence from the couple that the photographs in question had in fact been taken on any other date. In light of this it was open to the judge to reach the conclusion that he did in respect of when the photographs were taken, and to reduce the weight he placed upon them accordingly, given that they were created so soon before the appeal hearing. I also note that this was a point that the judge himself stated would not of itself lead to a rejection of the credibility of the Appellant but it was a matter that was taken into account. This is something that he was entitled to do.
14. In respect of the address at which the Appellant and his wife were said to have resided, I have looked through not only what the judge has said in his decision in respect of the evidence before him but also the carefully typed Record of Proceedings. It is quite apparent to me that there was confusion and inconsistency as to when one or other of the couple moved into the address and why the tenancy agreement was apparently signed when it was (see paragraph 54). I also find that the judge was entitled to regard the evidence offered as to the state of the room during the home visit by the Respondent on 13 November 2014 as being vague and implausible. On the evidence before the judge, as I see it, there was an inconsistency as to how long the tenancy was due to last and in addition whose belongings had been left at the original property and whose had been removed at the relevant time.
15. In respect of the children's names, there was an obvious inconsistency here as between the evidence of the Appellant and the EEA national. Put simply, they gave different names about two children that they claimed they had looked after. Mr Makol sought to explain this away by suggesting that nicknames had been used by one or other of the Appellant or his wife. First, Mr Makol cannot give evidence on a relevant matter. Second, there was no evidence before the judge that the names given were nicknames. In light of this the judge was entitled to find that there was an inconsistency. In turn he was entitled to take this into account when assessing the evidence as a whole.
16. In respect of the tattoo issue upon which Mr Makol has placed significant weight, I find that the judge was entirely justified in finding there to be inconsistent evidence. Again, having looked at the Record of Proceedings it is clear that it was the EEA national herself who mentioned having a snake tattoo (the point made in the grounds as to the absence of any such evidence is therefore misleading). The evidence from the EEA national that she also apparently had a tattooed R and C on her body was only provided by her in re-examination, having said previously that aside from the snake tattoo she had no others. Again the judge was entitled to find that the evidence was problematic and to place cumulative weight upon this point.
17. In respect of paragraph 58, the judge's adverse finding as to the non-attendance of the EEA national's mother has not been challenged in the grounds of appeal and was clearly open to the judge.
18. In respect of the witnesses' evidence, Mr Makol referred to paragraph 39, wherein the judge has noted their evidence. It is clear to me that the judge has taken account of that evidence when reaching his findings. With reference to paragraph 60 the judge says in terms that the witnesses' evidence was consistent with the Appellant being in a genuine relationship and he would take that into account when considering the evidence as a whole. I conclude that that is a very strong indication that the judge was aware of the relevant evidence and properly took it into account. The simple fact that the witnesses' evidence was consistent with the Appellant's claim does not even of itself lead to the conclusion that the marriage was a genuine one. All matters had to be taken in the round.
19. However, that is not the end of the matter in relation to the witnesses' evidence because at paragraph 61 the judge points out what I regard, and importantly what the judge regarded to be a material omission in the evidence. The witnesses have said that the Appellant and the EEA national helped and participated in the activities of the temple. However, the judge has found that neither the Appellant nor his wife mentioned this whatsoever both of them saying only that they had made monetary donations to the temple. On the evidence before him the judge was entitled to regard this omission as being material and to take it into account.
20. The judge's conclusions on the council tax bills have not been challenged in the grounds of appeal and I find that the conclusions reached at paragraph 63 were open to the judge.
21. Turning back to paragraph 53 I can perhaps see why the Appellant has felt unhappy about the wording of this particular paragraph. However, when seen in proper context and in light of the decision as a whole, there is nothing problematic about it as a matter of substance. The judge has pointed out that consistent evidence was provided in respect of a number of matters, giving particular examples of these at the beginning of the paragraph. There is nothing impermissible about the judge going on to say that consistency could be the result of a fabricated and rehearsed account. In essence all depends on the particular facts of the case.
22. In fairness to the judge he then goes on to give examples of inconsistencies in the evidence which he regarded as not being adverse to the overall credibility and instead being the result of poor recollection and/or honest misunderstandings. It seems to me that in reality paragraph 53 was simply a balanced overall commentary on various aspects of the evidence before the judge.
23. Turning to the issue of the EEA national's employment, the existence of the Companies House evidence was never of itself going to be sufficient to prove that the EEA national was employed as claimed. It simply confirmed the existence of the company (NNP). The two letters from the claimed employers are referred to by the judge in paragraph 50. However, these did not in fact assist the Appellant's case. In her refusal letter the Respondent had stated that she had attempted to contact the employer but without success. This assertion appears to have been accepted by the Appellant because he included in his statement an explanation for the inability to make contact, this being on account of the fact that the business had been moving address. However, as the judge rightly points out, the employer's letters dated September 2014 and September 2015 showed that their contact number remained the same notwithstanding the change of address. Thus the judge was entitled to find that the Appellant's explanation was less than credible. Furthermore, the judge was entitled to rely on what was clearly an inconsistency on the employer's part as to how her salary was paid (in cash rather than directly into her bank account). The judge was also entitled to have regard to the fact that this employment evidence was produced at the very last minute, effectively on the day of the hearing, and that there was no explanation as to why this evidence was filed so late notwithstanding the clear terms of the Respondent's refusal letter.
24. In paragraph 51 the judge was entirely justified in raising a significant question mark about the EEA national's claim that she had been paid in advance when seeking to explain why a payslip adduced in evidence was dated the day after the appeal hearing. Again the judge was also entitled to take into account the fact that this evidence was also very late in the day.
25. In respect of paragraph 52 I would accept that the judge ought not to have taken into account the fact that the EEA national chose to be paid in cash rather than straight into a bank account (although the erroneous contents of one of the employer's letters clearly was not going to assist the Appellant or his wife on this point: I refer back to what is said in paragraph 50 of the judge's decision). The judge goes on to conclude that even if the EEA national was receiving her salary in cash she ought either to have shown that deposits were being made into a bank account, or at the very least to have given an explanation why this was not being done. Having looked at the evidence myself there was no evidence of deposits being made and I see no evidence of any explanation having been given as to how the wages were kept or spent. In light of this the judge was entitled to treat this element of the evidence as being adverse to the Appellant and his wife.
26. Mr Makol had suggested that even on the findings made by the judge it was perverse of him to have concluded that the marriage was one of convenience only. I conclude that this submission is way off the mark. On the sustainable findings made the judge was wholly entitled to conclude that the marriage had been shown to be one of convenience only. Any perversity challenge (which has not even been raised in the grounds of appeal) does not even begin to get off the ground.
27. The final point to address is the way in which the judge has purported to have dismissed the appeal. At paragraph 72 he refers to the Immigration Rules when of course he should have referred to the Regulations. This is a matter of form only and clearly has no effect on the substance of the judge's decision.
28. Finally, the judge was entirely correct to have concluded that he had no jurisdiction to consider Article 8.
29. For all the reasons stated above there are no material errors of law and the decision of the First-tier Tribunal stands.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The Appellant's appeal to the Upper Tribunal is dismissed and the decision of the First-tier Tribunal stands.
No anonymity direction is made.

Signed Date: 13 September 2016
Deputy Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date: 13 September 2016
Deputy Upper Tribunal Judge Norton-Taylor