Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10802/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 March 2017
On 16th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

KENNETH CHIKA OBIORA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr T Bahja, Counsel instructed by Jesuis Solicitors
For the Respondent: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS

Background
1. The appellant in this case is a citizen of Nigeria born on 20 June 1962. The appellant came to the UK in 2005 and married a citizen of the Netherlands on 25 July 2009 in accordance with Ghanaian customary law. On 20 June 2010 the appellant was issued with a residence card pursuant to the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations). On 11 August 2014 the appellant applied for permanent residence. On 4 March 2015 the respondent refused that application and revoked the appellant’s residence card. In a decision and reasons promulgated on 2 August 2016 following a hearing on 23 June 2016 Judge of the First-tier Tribunal Malone dismissed the appellant’s appeal under the 2006 Regulations. It was not argued that there was any Article 8 appeal, given the case or including the Upper Tribunal decision of Amirteymour (EEA appeals: human rights) [2015] UKUT 466 (IAC) and TY (Sri Lanka) [2015] EWCA Civ 1233.
2. The appellant sought permission to appeal to the Upper Tribunal. The grounds for permission to appeal indicate that the First-tier Tribunal Judge in his findings “repeatedly stated that he did not accept that the marriage of the appellant was one of convenience as claimed by the respondent”. The grounds for permission to appeal set out the positive findings made by the judge in the appellant’s favour. It was submitted that given the judge’s reasoning from paragraphs [12] to [41] of his decision, there was a clear contradiction between the judge’s findings and his determination dismissing the appeal which suggested an inconsistency with his “largely positive findings in the appellant’s favour”. The grounds for permission argued that the First-tier Tribunal Judge’s statement at paragraph [42] dismissing the appeal was not in accordance with his reasoning and findings and not in compliance therefore with Regulation 10(5) of the 2006 Regulations.
3. The respondent in the Rule 24 notice opposed the appellant’s appeal and noted that paragraphs [35] and [36] of the decision of the First-tier Tribunal appeared to be a rejection of the appellant’s evidence in respect of the date on which the proceedings of the termination of the marriage began which affected the timing of the requirement in Regulation 10(5)(d)(i).
4. Permission to appeal was granted on the basis that there were positive findings in the appellant’s favour but “without any explanation he dismisses the appellant’s appeal finding that the appellant cannot meet the requirements of Regulation 10(5)” which was considered arguable.
Error of Law Discussion
5. This was a case where the respondent considered that the appellant and his spouse had entered a marriage of convenience. The judge in detailed findings directed himself appropriately and found, at [19], that the evidence fell well short of enabling the judge to uphold the respondent’s findings that the marriage was one of convenience. The judge went on to find that it had not been established that the appellant’s wife had been exercising treaty rights for a continuous period of five years and therefore the appellant was not entitled to permanent residence under Regulation 15(1)(f) of the Regulations.
6. However, the judge then considered Regulation 10(5), the retained right of residence under the 2006 Regulations. The judge conducted a comprehensive review of the evidence and made findings of fact on that evidence. On that basis the judge proceeded to consider Regulation 10(5) of the Regulations from paragraphs [34] to [42] of the decision and reasons.
7. Regulation 10(5) of the 2006 Regulations provides as follows:
“(5) A person satisfies the conditions of this paragraph if –
(a) he ceased to be a family member of a qualified person or an EEA national with a permanent right of residence on the termination of the marriage or civil partnership of that person;
(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;
(c) he satisfies the condition in paragraph (6); and
(d) either –
(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;
(ii) ....”.
“(6) The condition in this paragraph is that the person –
(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under Regulation 6; or
(b) is the family member of a person who falls within paragraph (a)”.
8. The grounds for permission to appeal are misconceived. Although it was not disputed that the judge found for the appellant on a number of factors, including that the marriage was not one of convenience, at paragraph [36] the judge was not satisfied that the appellant has discharged the burden of proof to meet the requirements of Regulation 10(5)(d)(i) of the 2006 Regulations. The judge had considered at [34] and [35] that the respondent had given three reasons for not being satisfied that the appellant met the requirements of Regulation 10(5). The first was that the appellant had not shown his marriage had lasted for three years and that he and his wife had lived in the UK for at least one of those three years. The judge was satisfied that the evidence demonstrated that the marriage had lasted for over three years and gave adequate reasons for those findings. However, at [36] the judge properly directed himself that the test required the respondent to be satisfied that the marriage had lasted for three years “prior to the initiation of the proceedings for the termination of the marriage”(my emphasis). The judge set out that the only evidence that he had as to that date was in the appellant’s witness statement, in paragraph 11 of that statement where the appellant stated:
“I filed for divorce in June 2012”.
9. In the refusal letter the respondent had recorded the appellant as stating at interview that he “began divorce proceedings June/July 2012”. However, the judge found that he could not attach weight to what was allegedly said at interview and, including at [19], had rejected the respondent’s assertions because of an absence of a record of interview. The judge identified that the matters that caused the respondent concern were “deductions from the unidentified questions and answers themselves. The evidence fell well short of enabling me to uphold the respondent’s findings”.
10. The judge had therefore already properly found that he could not rely on the respondent’s claimed statements as to what allegedly had been said at the interview and could only rely on the appellant’s own statement that he filed for divorce in June 2012. Therefore, the judge went on to find that the appellant had failed to establish that the marriage had lasted for three years prior to the initiation of proceedings for the termination of the marriage. It was not disputed that the parties were married on 25 July 2009. Therefore the commencement of divorce proceedings prior to July 2012 meant that the appellant could not meet this requirement. As the judge was satisfied that the evidence pointed to proceedings being issued, to terminate the marriage, in June 2012 the appellant had failed to satisfy Regulation 10(5)(d)(i) of the Regulations as the judge found at [36].
11. It is difficult to see how the appellant can properly challenge the fact that the judge dismissed his appeal. The judge was bound to dismiss the appeal as the appellant did not satisfy all of the relevant limbs of Regulation 10 and the judge gave adequate reasons for the findings he reached. Those findings were not substantively challenged in the grounds for permission to appeal and the permission was similarly granted on what I am satisfied were erroneous grounds that the judge had allegedly reached conclusions not in line with his findings. That is not the case.
12. Mr Bahja in his skeleton and in submissions before me attempted to argue new grounds including that the judge had materially erred in law in relation to his findings on Regulation 10(5) that at [36] the marriage did not last for three years prior to the initiation of divorce proceedings. Mr Bahja attempted to argue that the judge was wrong to place reliance on the appellant’s witness statement as to the exact time he started divorce proceedings and attempted to rely on what allegedly was said at interview that divorce proceedings were commenced in “June or July 2012”.
13. For the reasons already given, I am satisfied the judge gave adequate reasons which were open to him for reaching the conclusion he did as to when proceedings were initiated to terminate the marriage. There is no arguable challenge to those findings even if those grounds were properly before me. I am not satisfied they were. I have reminded myself what was said by the Court of Appeal in HS (Afghanistan) [2009] EWCA Civ 771 and approving of DK (Serbia) v Secretary of State [2001] WLR 1246 that
“In relation to the identification of any errors of law, that should normally be restricted to those grounds upon which the Immigration Judge ordered [reconsideration] and any point which properly falls within the category of an obvious or manifest point of Convention jurisprudence as described in Robinson”.
As discussed by LJ Wilson in HS (Afghanistan):
“My Lord has referred to the cases which, put simply, clearly state that if there is to be any enlargement of the reconsideration beyond that identified in the notice of appeal and made subject to the order for reconsideration, there have to be exceptional circumstances – see DK (Serbia) per Latham LJ at [21] and HF (Algeria) per My Lord at [23]”.
14. I am not satisfied, even taking into account that there has to be an element of elasticity within the concept of exceptional circumstances, that there were any exceptional circumstances which might warrant a consideration of grounds not encompassed in the grounds for permission to appeal.
15. The decision of the First-tier Tribunal does not disclose an error of law and shall stand. The appeal by the appellant is dismissed.
16. No anonymity order was sought or is made.

Signed Date

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

As the appeal is dismissed no fee award is made.

Signed Date

Deputy Upper Tribunal Judge Hutchinson