Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA133462015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 June 2016
On 9 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

CHARANJIT SINGH
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Chhotu of Counsel
For the Respondent: Mr Walker a Home Office Presenting Officer

DECISION AND REASONS
Background
1. The respondent refused the appellant's application for an EEA Residence Card on 23 March 2015. His appeal was dismissed by First-tier Tribunal Judge Farrelly ("the Judge") following a consideration of the papers on 23 July 2015.

The grant of permission
2. Upper Tribunal Judge Blum granted permission to appeal (29 April 2016) stating that:
"1. The core of the renewed grounds criticise the First-tier Tribunal for misapplying the burden of proof established in Papajorgji (EEA spouses - marriage of convenience) Greece [2012] UKUT 00038 (IAC) ("Papajorgji").
2. It is arguable that, by relying on IS (marriage of Convenience) Serbia [2008] UKAIT 00031 (paragraph 9 of the First-tier Tribunal decision) and stating that "the burden of proving that a marriage is not a 'marriage of convenience' for the purpose of the EEA Regulations rests on the appellant," the First-tier Tribunal misdirected itself as to the correct burden of proof (see Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14, at paragraph 29).
3. There was clearly sufficient evidence before the First-tier Tribunal to discharge any evidential burden on the respondent (see paragraph 20 of Papajorgji) but it remains arguable whether the First-tier Tribunal would have inevitably reached the same conclusion had it applied the proper burden of proof and in light of the totality of the evidence."
The Judge's determination
3. The Judge stated that;
"9. In IS ? the burden of proving that a marriage is not a "marriage of convenience" for the purpose of the EEA regulations rests on the appellant: but he is not required to discharge it in the absence of evidence of matter supporting suspicion that the marriage is one of convenience (i.e. there is an evidential burden on the respondent ?) Papajorgji ... held that there is no burden at the outset of an application on a claimant to demonstrate that marriage to an EEA national is not one of convenience. IS ? establishes only that there is an evidential burden on the claimant to address evidence justifying reasonable suspicion the marriage is entered into for the predominant purpose of securing residence rights.
...
17. Given that the issue in the appeal is the genuineness of the relationship, it was up to the appellant to produce solid evidence to demonstrate an ongoing relationship."
Respondent's position
4. Mr Walker relied on the Rule 24 notice (17 May 2016) which stated that the Judge directed himself appropriately, and even if he had applied the correct burden of proof would have reached the same conclusion given the paucity of the evidence.

Appellant's position
5. The self-direction regarding the burden of proof was wrong or misleading and the Judge plainly decided [17] that "it was up to the appellant to produce solid evidence to demonstrate an ongoing relationship". This amounted to a reversal of the burden of proof. There was evidence of cohabitation and the finding of dishonesty was Draconian.
Discussion
6. I am satisfied that all the Judge was doing at [9] was summarising what IS said and then identifying from Papajorgji what it meant. Given the findings he had made regarding the evidence which he summarised [11 to 16], it was abundantly clear that he was satisfied the respondent was entitled to raise the concerns that switched the burden of proof. All the Judge was saying at [17] was that this is what had occurred.
7. Given the paucity of evidence of the relationship through the lack of a significant female footprint at the appellant's address, the limited documentary trail, and the repeated failure by the appellant to engage with the respondent, the Judge was entitled to reach the conclusion that the respondent's concerns were warranted and also that the appellant had failed to discharge the burden of proof that had switched to him.
8. I therefore am not satisfied that there was a material error of law and do not set the decision aside.
Decision:
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside the decision.

Signed:
Deputy Upper Tribunal Judge Saffer
9 June 2016