Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08463/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 26 July 2016 & 25 October 2016
On 17 January 2017

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

MUHAMMAD SAJID HUSSAIN SHAIKH
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Marrrington, instructed by Alam Ahmed solicitors
For the Respondent: Mr McVeety (26 July) & Mr C Bates (25 October) - Senior Presenting Officers

DECISION AND REASONS
Introduction
1. This is an appeal brought with the permission of Upper Tribunal Judge Eshun against the decision of First-tier Tribunal Judge Davies, promulgated on 21 July 2015, dismissing the appellant's appeal against the Secretary of State for the Home Department's ("SSHD") decision of 13th February 2015 refusing to issue the appellant with an EEA residence card.
2. At the centre of this appeal is the issue of whether the appellant's marriage to a Ms Iacob on 9 January 2014 is a marriage for the purposes of the Immigration (EEA) Regulations 2006 ("2006 Regulations"). The SSHD asserts that the marriage is one of convenience and, consequently, that it is not a marriage for the purposes of the 2006 Regulations. The First-tier Tribunal (Judge Davies) agreed with the SSHD on this issue and, consequently, concluded that the fact that the appellant had married an EEA national did not, even if that EEA national is exercising treaty rights, require the Secretary of State to issue an EEA residence card.
3. Judge Davies was not the first Tribunal Judge to consider the circumstances of, and reasons for, the marriage between the appellant and Ms Iacob. The appellant had an earlier application for an EEA residence card, based on his marriage to Ms Iacob, refused by the SSHD in a decision of 10 April 2014; it having been concluded by the SSHD that the marriage was one of convenience. An appeal against such decision was dismissed by First-tier Tribunal Judge Burnett on 24 June 2014, Judge Burnett also finding the marriage to be one of convenience.
Judge Burnett's decision - a summary
4. The appellant requested the appeal before judge Burnett be determined on the papers.
5. An analysis of the decision discloses that the judge's conclusion was founded in part on the existence of a number of discrepancies between the accounts given by the appellant and his wife during the course of their 'marriage interviews' with Immigration officials. Judge Burnett observed that he had not been provided with a copy of these marriage interviews but he, nevertheless, placed reliance upon a summary thereof set out in the SSHD's refusal letter.
6. Broadly speaking that summary identified only those points in the interviews that could be considered to be supportive of the SSHD's conclusions. There was no analysis or consideration of points that might have potentially been favourable to the appellant.
7. Having accepted (i) that appellant and his wife lived together and (ii) that the appellant is the father of a child born to his wife, and having analysed the explanations provided for the points taken by the SSHD against the appellant, judge Burnett concluded that it was more probable than not that the appellant had entered into a marriage of convenience.
Judge Davies' decision - a summary
8. Unlike judge Burnett, judge Davies heard oral evidence from both the appellant and his wife, as well as a number of other witnesses.
9. Judge Davies treated judge Burnett's conclusions as the starting point for his considerations, following the starred decision of this Tribunal in Devaseelan v Secretary of State for the Home Department [2002] UKIAT 00702. He then "considered the evidence as to whether anything has changed since the previous appeal." [12]. It important to observe that judge Davies did not have a copy of the either the appellant's, or the appellant's wife's, marriage interview record before him - he had an 'Interview Summary Sheet'.
10. The substance of the reasoning provided by judge Davies for dismissing the appeal is set out within paragraphs 31 to 37 of his decision: -
"31. The issues before Judge Burnett were the same as are before me. I have considered whether there are any new matters arising since the first determination. Mr Aslam submits that the interview record was only available at that this hearing. However, the allegations and details of the discrepancies were available to the judge at the previous hearing. ....
32. On this occasion the appellant has attended and was accompanied by his spouse and other witnesses. However, this evidence was available to him at the time of the earlier appeal. I might have taken a different view had I heard a consistent view from the appellant and his spouse as to the reasons for having a paper determination previously. However, I have set out the position at paragraphs 14 to 16 above and the wildly inconsistent responses undermine the credibility of the appellant and his spouse. .... Moreover, it adds little or nothing to what was available to the appellant at the previous appeal.
33. Although there is a vast amount of documentary evidence as to the residence of the appellant and his spouse I note that Judge Burnett found at paragraph 30 of his determination that there was evidence to show that the appellant and his spouse now lived together in Manchester so this evidence does not take matters further.
34. I have put little weight on the evidence of the witnesses called by the appellant for the reasons given above ...
35. I must consider the photographic evidence in the context of the overall evidence. As I am not satisfied that the appellant and his wife have shown themselves to be reliable witnesses I approach the photographs with caution. Moreover, photographs were available at the previous appeal and so I am satisfied that they do not take the matter any further.
36. Devaseelan also provides that where credibility remains arguably alive then it would be open for me to revisit previous credibility findings. As the document relating to the interview was not provided until this appeal I find it appropriate to revisit the previous findings on credibility. I have done so by considering the evidence including the oral evidence. However, my finding overall on credibility is influenced by findings on the evidence of each of the witnesses. I am not satisfied for the reasons given that the appellant and his wife or the witnesses called are reliable witnesses. They have not convinced me that their explanations for the discrepancies and inconsistencies hold up. I accept these minor inconsistencies such as the purchase of a sim card and for whom it was purchased are not of any major consequence. However, I find no reason to depart from the previous determination in the findings of fact made since I have considerable doubts about the veracity of the evidence or the appellant and his spouse and attach little weight to the evidence of the other witnesses. The earlier determination referred to notable discrepancies. I have not heard any evidence moreover that was unavailable to the appellant at the earlier appeal.
37. The burden of proof as indicated in Papajorgji has shifted to the appellant in this case. He has not discharged it and I see no reason to depart from the findings and conclusion reached in the previous determination."
Error of Law
11. At the hearing of the 26 July 2016 I concluded that the decision of judge Davies contained an error of law capable of affecting the outcome of the appeal and I set such decision aside - the following reasons were given in my later written decision:
18. The most relevant points, for the present purposes, of the guidance given by the Tribunal in Devaseelan, are as follows:
(1) The first Adjudicator's determination should always be the starting-point. ?
(4) Facts personal to the Appellant that were not brought to the attention of the first Adjudicator, although they were relevant to the issues before him, should be treated by the second Adjudicator with the greatest circumspection. ?
(6) If before the second Adjudicator the Appellant relies on facts that are not materially different from those put to the first Adjudicator, and proposes to support the claim by what is in essence the same evidence as that available to the Appellant at that time, the second Adjudicator should regard the issues as settled by the first Adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be relitigated?
(7) The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the Appellant's failure to adduce relevant evidence before the first Adjudicator should not be, as it were, held against him. We think such reasons will be rare?"
19. Judge Davies did not have before him a copy of the marriage interview record of either the appellant or his wife, but he was provided an "Interview Summary Sheet". The information contained in this document consists almost entirely of a summary of the "inconsistencies, issues and discrepancies" within the appellant's claim. The primary purpose of the sheet is evident because the text in 4 of its 5 pages follows the heading "Evidence to support recommendation". That recommendation was, of course, that the appellant had engaged in a "sham" marriage. The one thing the "Interview Summary Sheet" cannot claim to contain is a fair and balanced analysis of the appellant's circumstances, and in particular those relating to his marriage.
20. Nevertheless, it was this document and the equally partial refusal letter, that was used to underpin judge Burnett's conclusions that the appellant had entered into a marriage of convenience.
21. The grounds in support of the appeal to the First-tier Tribunal (leading to judge Davies' decision) clearly assert unfairness to the appellant as a consequence of the SSHD's failure to provide copies of the interview records but, despite this point being taken albeit in crude form, judge Davies failed to engage in any analysis of the possible relevance of the absence of the records of interview to either the weight to be attached to judge Burnett's conclusions or to his analysis of the circumstances of the appellant's marriage. The production of the interview records is entirely within the gift of the SSHD.
22. The records of interview could assist in the consideration of: (i) whether the SSHD's assertions of inconsistency are accurate; (ii) the context within which such inconsistencies arose; and, (iii) whether there is anything probative to the appellant's case contained therein.
23. In paragraph 31 of his decision Judge Davies' records a submission made by the appellant's then representative relating to the absence of interview record before judge Burnett and disposes of it by identifying that the substance of the allegations against the appellant were provided to him. This though does not engage with those matters identified in paragraphs 22(ii) and(iii) above.
24. In my conclusion the failure of judge Davies to engage adequately with the potential relevance of the appellant and the Tribunal (both previously and currently) not having been provided with copies of the interview records amounts to an error of law. It is no answer to this to assert that the decision of judge Burnett must nevertheless be the starting point. The decision of judge Burnett must be considered in the context of the fact that he did not have a copy of the records of the interviews, particularly given that such absence had not been remedied before judge Davies."
Re-making of Decision
Introduction
12. I directed that the re-making of the decision under appeal be undertaken by the Upper Tribunal and, thus, the matter came back before me.
13. In the intervening period the SSHD, in compliance with the Tribunal's directions, located and served upon the appellant and the Tribunal a copy of the appellant's, and his wife's, marriage interview records (dated 24 March 2014). The interview with the former consists of 285 questions and that with the latter contains 251 questions.
Legal Background
14. The correct application of the burden and standard of proof in cases such as this (i.e. where there is an assertion that there has been a marriage of convenience) was set out by Underhill LJ (Moore-Bick LJ and Vos LJ in agreement) in Agho v Secretary of State for the Home Department [2015] EWCA Civ 1198, in the following terms:
"13. ? What it comes down to is that as a matter of principle a spouse establishes a prima facie case that he or she is a family member of an EEA national by providing the marriage certificate and the spouse's passport; that the legal burden is on the Secretary of State to show that any marriage thus proved is a marriage of convenience; and that the burden is not discharged merely by showing 'reasonable suspicion'. Of course in the usual way the evidential burden may shift to the applicant by proof of facts which justify the inference that the marriage is not genuine, and the facts giving rise to the inference may include a failure to answer a request for documentary proof of the genuineness of the marriage where grounds of suspicion have been raised. ..."
15. The 2006 Regulations do not contain a definition of 'marriage of convenience' but in its decision in Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14, the Court of Appeal were content to adopt, as I am, the definition of 'marriage of convenience' contained in 'Article 1 of EC Council Resolution 97/C/382/01 of 4 December 1997 on measures to be adopted in the combating of marriages of convenience':
"a marriage concluded between a national of a Member State or a third-country national legally resident in a Member State and a third-country national, with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member State."
Decision and Discussion
16. The following matters of fact are not in dispute:
i. The appellant entered the United Kingdom on 19 January 2011 with leave to enter as a student conferred until 13 May 2012. He remained thereafter without leave to do so.
ii. The appellant and Ms Iacob (a Romanian national) undertook an Islamic marriage ceremony in the United Kingdom on 24 April 2013;
iii. On 18 June 2013 the appellant was encountered by Immigration Officers at 2 Wilby Street. His wife was not present. The appellant was, on the same date, served with an IS151A;
iv. The appellant subsequently submitted an application for an EEA residence card, which was refused on 6 December 2013;
v. The appellant and Ms Iacob married according to the laws of the United Kingdom on 9 January 2014;
vi. A child of the relationship ("SZ") was born on 6 February 2014;
vii. As of 8 July 2014 (the date of judge Burnett's decision), the appellant and his wife were living together in Manchester;
viii. The appellant made a further application for an EEA residence card on 27 December 2014, which was refused by the Secretary of State in the decision under challenge of 13 February 2015;
17. In making her decision the SSHD relied, inter alia, upon numerous inconsistencies as between the evidence given by the appellant and his wife during the course of their marriage interviews on 24 March 2014 (which I do not repeat herein but have taken full account of), the fact that the appellant was encountered on 18 June 2013 at 2 Wilby Street (incorrectly recorded in the decision letter as 18 February) residing with 4 other males and when questioned said that he was a student but did not mention he was an overstayer and that, according to the immigration officer who visited 2 Wilby Street, there was no evidence at the premises that the appellant's wife lived there.
18. As identified above, there has been an unchallenged judicial decision by the FtT of exactly the issue that I am now required to determine - judge Burnett finding that the appellant engaged in a marriage of convenience with Ms Iacob. Following the starred decision in Devaseelan I am required to take the FtT's decision, which I have summarised in paragraphs 4 to 7 above, as my starting point.
19. The findings made by judge Burnett are, in my conclusion, sufficient to shift the evidential burden in this case onto the appellant. Those findings are my starting point; they are not however determinative of the instant appeal. As already identified, judge Burnett was not provided with a copy of the interview records of either the appellant or Ms Iacob, despite such records forming one of the founding pillars of the SSHD's case that the appellant had engaged in a marriage of convenience. Judge Burnett observed that he was unable to put the 'discrepancies' identified by the SSHD (as between the appellant's and his wife's marriage interviews) in their proper context as a consequence. As I have identified above, the failure of the SSHD to provide judge Burnett with the copy of the records of those interviews - in compliance with her duty as a party to the proceedings - also deprived the appellant of the opportunity to rely upon evidence from those records which fell to be considered in his favour.
20. I now have a copy those interview records and, as anticipated, they provide substantial evidence in support of the appellant's assertions that his marriage to Ms Iacob is not borne out of the sole wish to circumvent the rules on entry and residence in the United Kingdom for foreign nationals.
21. There are certainly inconsistencies in the evidence provided by the appellant and Ms Iacob at their respective interviews, some of which are entitled to more weight than others. I have assessed these inconsistencies in the round with all other evidence before me when coming to my conclusions, having taken judge Burnett's conclusions thereon as my starting point.
22. I, like judge Burnett, place little weight on the question of whether the appellant bought a sim card at the time of his first meeting with the appellant. I also place little weight on the inconsistency between the appellant and his wife as to the exact time of travel to the hospital for their child's birth, or indeed the time of such birth itself. The appellant has now produced evidence from the hospital confirming his presence there at 2pm on the day prior to the birth. There is also a hospital record stating that a 'relative was asleep on the sofa' at 3am on the date of the birth. The appellant and Ms Iacob assert this to be appellant.
23. Furthermore, the explanation provided by the appellant and Ms Iacob for two, what would otherwise be, significant inconsistencies, was accepted by Mr Bates as being truthful. The first of these inconsistencies relates to whether Ms Iacob's daughter was living at 2 Wilby Road with the appellant at the date of the immigration officers visit in June 2013. At interview Ms Iacob stated she was not, the appellant stated to the contrary. Ms Iacob later stated, however, that she had lied to the interviewing officer in order to "cover up" the fact that her daughter was living at the Wilby Street address because she feared that the nature of the arrangements (i.e. all three sleeping in one bedroom) would flag welfare issues with the authorities. The second of these inconsistencies relates to the relationship status of the Ms Iacob's brother. Again, Ms Iacob explained that she lied to the interviewing officer in this regard - this time to protect her brother from "children's services" because his partner had given birth to a child whilst under the age of 18.
24. Although Mr Bates accepted the truth of such explanations he, nevertheless, quite properly relied upon Ms Iacob's willingness to deceive a Home Office official in support of his overarching submission that Ms Iacob had lied about the reasons underpinning her marriage to the appellant. I agree with Mr Bates that Ms Iacob's propensity to lie when she perceives she is in a difficult position is a matter which must weigh heavily in my considerations.
25. Turning back to judge Burnett's decision, although the judge took account of the fact that there had been a child of the relationship (SZ), there is no discreet analysis in his decision of the relevance of this fact when set in the context of the time line of the core events.
26. A significant part of the SSHD's doubt about the reasons behind the appellant's marriage arises from the conclusion that Ms Iacob was not living at the Wilby Street address on 18 June 2013 (the date of the immigration officer's visit). This doubt was fuelled by the fact that the visit was unannounced. Ultimately the doubt was fortified by the inconsistencies in the interview records. Once again, however, there appears to be no discreet analysis in the SSHD's decision of the relevance of the child's birth when set in its proper context of the chronology of the key events.
27. If one reflects further on this issue it is apparent that it is not only the date of child's birth that has relevance, but also the date of conception. SZ was born on 6 February 2014. There is no evidence that she was born prematurely or significantly late; indeed, both possibilities are rendered unlikely when viewed in the knowledge that she was born as a consequence of a planned caesarean. This means that SZ was conceived on, or around, the 16 May 2013 (not June 2013 as judge Burnett identified at [29]).
28. This is of significance because it post-dates the Islamic marriage between Ms Iacob and the appellant by less than a month and also pre-dates the visit by immigration officer's to the Wilby Street address on 18 June 2013 (at which time the appellant was also detained). At interview it was said that the appellant found out about the pregnancy whilst in detention, which is entirely consistent with the aforementioned chronology.
29. The fact that Ms Iacob was so recently pregnant with the appellant's child at the date of the immigration officer's visit to Wilby Street provides strong support for the assertion that they were, as of that date, in a relationship which involved more than a transaction between them so as to enable the appellant to circumvent immigration control. That the conception of a child so closely followed the Islamic marriage further supports this view, as indeed does the fact that Ms Iacob converted from Christianity to Islam in order to get married, an assertion in relation to which there has been no discreet challenge.
30. Of course, the appellant and Ms Iacob did not conduct a legal marriage under the law of the England and Wales until sometime later, in January 2014 i.e. shortly before the birth of the child. However, the history and nature of the relationship prior to the marriage is of undoubted significance in determining the reasons for the marriage.
31. Turning back to the marriage interviews, which took place in March 2014 (i.e. 9 months after the immigration officer's visit to the Wilby Street address), these were both lengthy and wide-ranging in their exploration of the appellant's relationship. Despite this, there was a significant degree of consistency as between the evidence provided by the appellant and Ms Iacob, something that has not previously been taken into account by a judicial decision maker.
32. A full digestion of the questions asked and answers given provides persuasive support for the fact that the appellant and Ms Iacob were living together on 18 June 2013, despite the inconsistencies the SSHD has drawn attention to. The interviewing officer asked both the appellant and Ms Iacob, separately, to draw a plan of the Wilby Street address. Neither of these drawings have been provided to the Tribunal, but I infer they were consistent because any inconsistency would have been detailed in the documentation produced by the SSHD in support of her conclusion that there had been a marriage of convenience.
33. Both the appellant and Ms Iacob were also asked to describe the layout and furniture of their (claimed) bedroom, the colour of the carpets and curtains and the view from the bedroom window. Again, it is not said that the answers given were inaccurate and I observe that the answers were consistent as between them. I do not lose sight of the possibility that the appellant and Ms Iacob could have conferred about such matters prior to the interview in order to ensure consistency, or that Ms Iacob had visited the premises but not lived there. The other possibility, of course, is that they both lived in the Wilby Street address as claimed.
34. It is known, because judge Burnett so concluded, that the appellant and Ms Iacob were living together in July 2014. Evidence was also provided at the marriage interviews that the appellant and Ms Iacob were, at that time, living together - having recently moved to a room provided by the local authority because they had left family accommodation as a consequence of 'arguments' with the host family members. Although not compelled to, it would have been relatively easy for the SSHD to confirm this information with the relevant local authority. There has been nothing produced which contradicts the assertions made during the interviews in this regard, and other documentary evidence before me supports the truth of the evidence given during the interviews.
35. As indicated above, the conclusions of judge Burnett - which were derived in the absence of live evidence from the appellant and Ms Iacob - must be the starting point for my consideration of whether the appellant and Ms Iacob engaged in a marriage of convenience. Those conclusions are sufficient for me to find that the evidential burden has shifted onto the appellant to prove that his marriage was not one of convenience.
36. Judge Burnett was not, however, furnished with the records of the marriage interviews, despite the inconsistencies therein forming a central plank of the SSHD's conclusions. I have taken full account of these inconsistencies, as well as the further inconsistencies that became apparent in the evidence given orally before the FtT (judge Davies).
37. Having taken all of the above matters into account, and taken judge Burnett's conclusions as my starting point, I find that the additional evidence that I have before me - including the marriage interview records and evidence from the hospital demonstrating that the appellant was, at the very least, present at the hospital on the day prior to SZ's birth - when taken with an appreciation of the relevance of the likely date of SZ's conception in the context of the other key events relevant to this appeal, leads me to conclude that the appellant has demonstrated to the balance of probabilities that he did not engage in a marriage of convenience with Ms Iacob.
38. I find that the marriage between the appellant and Ms Iacob is one that attracts the benefit of the 2006 EEA Regulations. There is no dispute as to whether Ms Iacob is exercising treaty rights in the United Kingdom and, consequently, the appellant's appeal must be allowed on the basis that the SSHD's decision to refuse to issue a residence card is not in accordance with the Community Treaties, or the law (the 2006 EEA Regulations).

Notice of Decision
The First-tier Tribunal's decision is set aside. The decision under the appeal having been re-made in the Upper Tribunal, it is allowed on the basis of, and for the reasons, set out above.

Signed:

Upper Tribunal Judge O'Connor
16 December 2016