Tribunal decisions

The decision

IAC-AH-dp-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/13347/2015
IA/16203/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 December 2016
On 13 March 2017

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

IN
EN
(Anonymity Order made)
Appellants
and

Secretary of State for the home department
Respondent

Representation:
For the Appellants: Mr E. Cole, Counsel instructed by Sterling & Law Associates
For the Respondent: Mr T. Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellants are mother and daughter. They are citizens of Ukraine and were born on 12 June 1983 and 9 February 2013, respectively. Where I refer to "the appellant", that is a reference to the first appellant.
2. The appellants appealed to the First-tier Tribunal (“FtT”) against the respondent’s decisions to refuse a residence card to the first appellant as the spouse of an EEA national. Their appeal came before First-tier Tribunal Judge Quinn (“the FtJ”) at a hearing on 27 June 2016 following which the appeals were dismissed with reference to the Immigration (European Economic Area) Regulations 2006 (as amended) (“the EEA Regulations”).
3. The appeal of the second appellant is dependent on that of the first appellant.
The decision of the FtJ
4. The FtJ concluded that the appellant and the sponsor, her husband, were not credible witnesses. He referred to the decision letter which itself highlighted “discrepancies” in the interviews. Although the appellant and the sponsor had said in evidence that they had reservations about the interpreter at the interviews, neither of them had made any official complaint or had written to the respondent to correct any misunderstandings. They did not ask for the interview to be stopped.
5. At [22] the FtJ said that he accepted what was said on behalf of the appellant to the effect that there were inaccuracies in the decision letter which did not wholly accurately recite what was said in the interviews, but he concluded that what was said in evidence before him was far more damaging to their credibility.
6. At [24] he referred to the appellant having said that she was married on 15 April 2014, when in fact it was the 16th. She said that there was no wedding reception (planned). The sponsor had said that there was a small celebration afterwards when they drank champagne.
7. The FtJ referred to the evidence given by the appellant and the sponsor in terms of who was at the wedding, and in relation to whether the sponsor had met the appellant’s mother. He concluded that in relation to the latter issue, their evidence was not reliable and that the sponsor had not actually met her mother. That the sponsor had not met the appellant’s mother suggested that theirs was a marriage of convenience. He concluded that their evidence in relation to recent events was unreliable and neither had given a consistent account.
8. At [33] he observed that the appellant had used deceit to enter the UK, having arrived using someone else’s Polish identity card, and concluded that she was prepared to use deceit to further her own ends. At [34] he concluded that the answers given by the appellant during her interview suggested that she did not know as much about her husband as she would have had him believe.
9. He referred at [35] to what he described as “minor discrepancies” between the appellant and the sponsor in relation to the colour of the walls/floor of their accommodation, but said that that added to the overall picture of a couple that were not in a genuine and subsisting relationship.
10. He said that he had not seen a tenancy agreement confirming that the sponsor lived at the appellant’s address and the documents showing his address were not “conclusive” as to his living with the appellant.
11. Further inconsistency was noted at [36] in relation to the appellant’s recent birthday and in the next paragraph with respect to when the sponsor went to Lithuania. At [40] it was noted that there were no statements from the other occupants of the house that the appellant lived in, and the FtJ concluded that it was reasonable to have expected that evidence to have been provided. Similarly, there was no council tax bill to show who was living there.
12. The FtJ concluded that the respondent had established that the marriage was one of convenience.
The grounds of appeal to the Upper Tribunal
13. The appellant’s grounds contend (ground 1) that the FtJ found against the (first) appellant on the issue of whether the marriage was one of convenience by placing weight only on the inconsistencies in the answers they gave at interview, but did not take into account the consistencies, which were in the majority.
14. It is also contended in the grounds that the FtJ misapplied the burden of proof (ground 2), having concluded that the decision letter was not satisfactory, yet having gone on to make adverse findings in relation to the oral evidence. It was necessary, so it is said in the grounds, for the respondent to make out her case first before going on to consider whether the evidence on behalf of the appellant rebuts a suspicion (of marriage of convenience).
15. It is argued (ground 3) that the FtJ made factual errors in his decision, and that he applied the wrong test in the assessment of whether the marriage was one of convenience (ground 4). Lastly, it is said in the grounds (ground 5) that the FtJ had failed to attach appropriate weight to the difficulties over interpretation evident at the time of the interviews with immigration officials.
16. At the hearing I asked for a record of interview to be provided that had numbers for the questions and answers. In addition, the three appendices concerning the interviews were provided on behalf of the appellants. Appendix 1 is said to be a schedule of interpretation difficulties; appendix 2, a schedule of "concordant" answers; and appendix 3, notes of the oral evidence before the FtJ. Appendix 2 was amended in manuscript so that the answers matched the numbered interviews provided by the respondent.
Submissions
17. I summarise the party’s submissions. In his submissions Mr Cole referred to the decision letter and the answers recorded as having been given during the interview, pointing out where he contended that the decision letter was inaccurate. It was submitted that there was a significant body of consistent answers between the appellant and the sponsor. The FtJ needed to consider what weight to attach to the consistent answers.
18. At my invitation, Mr Cole made submissions in relation to the decision in Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14. It was accepted that that decision affirms the decision of the Upper Tribunal (“UT”) in Papajorgji (EEA spouse-marriage of convenience) Greece [2012] UKUT 00038 (IAC).
19. It was submitted that what the FtJ said at [23] in terms of the oral evidence being far more damaging to credibility than what was said in the (inaccurate) decision letter, was in error. It was argued that the FtJ should not have gone on to consider the oral evidence if the decision letter was flawed, because the evidential burden by that point had not shifted to the appellant. If the FtJ had found however, that the evidential burden had shifted to the appellant, he should have identified what the evidence was that had raised the suspicion (of marriage of convenience), especially where the decision letter contained errors. If no such evidence was identified, that should have been an end to the matter, and there would have been no reasons for the appellant and the sponsor to give evidence at all.
20. Mr Cole identified what were said to be the errors of fact made by the FtJ. Otherwise, the grounds of appeal were amplified in submissions.
21. Mr Wilding submitted that there was no material error of law on the part of the FtJ. The submissions made on behalf of the appellants were advanced as if this was a rehearing of the appeal. Although there were consistent answers, there were also discrepancies, and the respondent does not contend that all the answers were inconsistent. Reference was made to various answers given in the interview.
22. Because the respondent had made out a reasonable suspicion of a marriage of convenience, the burden shifted to the appellant, and the FtJ was entitled to conclude as he did at [23] about the oral evidence being far more damaging to the appellant’s and the sponsor’s credibility. In addition, the FtJ was able to assess the evidence of the witnesses. His findings were open to him.
23. All the evidence ‘signposted’ this as a marriage of convenience, which involves a consideration of whether this was a genuine relationship.
24. As to the ‘interpretation’ issue, the respondent did not rely on parts of the interview what were 'inaudible', as revealing any discrepancy. In addition, no complaint in that respect was raised before the FtJ.
Conclusions
25. I deal with grounds 2-5 first, although not in that order. I do not consider that there is any merit in the contention (ground 2) that the FtJ failed to “allocate the burden of proof correctly” as the grounds put it. Whilst the FtJ, correctly in my view, accepted that there were inaccuracies in the decision letter in certain respects in terms of inconsistency in the interviews of the appellant and sponsor, there is otherwise a basis in the decision letter for the respondent’s concern that this was a marriage of convenience.
26. In Rosa, the Court of Appeal endorsed the reasoning of the Upper Tribunal in Papajorgji, referring to its own decision in Agho v Secretary of State for the Home Department [2015] EWCA Civ 1198. In Rosa, the following passage from Agho at [13] was quoted;
“…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 that 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 for suspicion have been raised. Although, as I say, the point was not argued before us, that approach seems to me to be correct…”.
27. In the appeal before me, the FtJ did not identify what was, or was said to be, inaccurate in the decision letter, nor did he summarise the submissions on the point made to him. I have considered the submissions made to me with reference to what is said in the decision letter and interviews. The detail, it must be said, is rather tedious to narrate but it is potentially important. I summarise some of the points.
28. The decision letter (which has no paragraph numbers) asserts inconsistency between the appellant and the sponsor in relation to whether the appellant and the sponsor exchanged numbers when they first met. However, the answers to questions 51 and 302 show that there was not the inconsistency contended for in the decision letter.
29. Inconsistency between them in relation to the colour of their bedsheets is also asserted. However, where it asserts that the appellant said that the bed sheets were blue/white Mr Cole suggests that that is not correct, and I agree. There is no reference to blue/white bed sheets in that interview.
30. The decision letter asserts inconsistency in terms of what the sponsor said to the appellant when he proposed marriage, with the decision letter purporting to refer to “his exact words”. However, the answers to questions 189 and 429 show that the sponsor did not purport to give his exact words, and nor did the appellant. Therefore, the comparison and asserted inconsistency is not as stark as the decision letter would suggest.
31. The next two paragraphs of the decision letter, which concern the wedding day, contain a mixture of facts that either the appellant or the sponsor could not remember and some inconsistency. However, the way the paragraphs are written suggests that the two accounts are wholly inconsistent, with the use in the second paragraph of the opening words "In contrast", then referring to what the appellant had said about the wedding with the first paragraph setting out what the sponsor had said. The sponsor had said at question 446 that the wedding day was on a 'working day', but could not remember the day, and the decision letter in the following paragraph states that "In contrast, you said you got married on a Wednesday...". In that distinct respect there is no inconsistency.
32. Whilst those paragraphs do reveal some inconsistency, for example in respect of who sat where in the wedding car, the decision letter at that point is apt to mislead in suggesting that there was wholesale inconsistency in the accounts of the appellant and the sponsor in these aspects of their interview.
33. In terms of the purchase of the wedding rings, what is recorded in the decision letter does, on the whole, appear to show arguable inconsistency in their accounts (for example, the cost). That is not to say that the interview itself does not reveal some consistency on this issue, for example that they went together to buy the rings from Argos and that the sponsor paid. However, the decision letter in relation to this aspect of their interviews is again potentially misleading.
34. Above, I indicated that it was my view that there was a basis in the decision letter for the respondent's concern that this was a marriage of convenience. Notwithstanding the matters that I have referred to which are inaccurate or potentially misleading, the decision letter does identify other matters which could be said to be significant. Matters are raised in relation to the appellant's pregnancy and the birth of her daughter (the second appellant). It is noted that the appellant travelled to the UK using someone else's identity card; the appellant did not know why the sponsor had come to the UK and never discussed it with him. There was, as I have said, arguable inconsistency in relation to the purchase of the wedding rings, and an issue was raised in terms of whether in the interview they could identify what their common interests were.
35. The contention that the respondent had not raised a suspicion of this being a marriage of convenience is not therefore, made out. The related contention advanced in submissions to the effect that the FtJ ought not to have gone on to consider the oral evidence, because no suspicion of marriage of convenience had been raised, is also therefore without merit. In any event, as I said at the hearing, I have significant doubt about the merit of that submission in itself.
36. Ground 5 concerns an alleged failure on the part of the FtJ to attach weight to issues arising in terms of interpretation difficulties evident in the interview. This has merged into a submission about possible technical issues concerning the audibility of some of the answers given. The schedule of those questions and answers where this arises is contained in the appellants' appendix 1 to the grounds.
37. However, in terms of whether there is an error of law in the FtJ's decision in this respect, I do not consider that this argument has any merit. I am not satisfied that the arguments advanced before me reveal that this issue had any material impact on the FtJ's conclusions. Furthermore, the FtJ dealt with the interpretation complaint at [19].
38. Nor do I consider that ground 4, concerning the correct test for the assessment of a marriage of convenience, has any merit. The argument is to the effect that the FtJ focussed on whether the appellant and the sponsor's relationship after their marriage was subsisting, rather than on whether the marriage was entered into for the sole purpose of fraud. However, although the FtJ did make an express assessment of whether the appellant and the sponsor were in a genuine and subsisting marriage, he also repeatedly identified the ultimate issue, which was whether the marriage was one of convenience, recognising that the burden of proof was on the respondent to establish that fact.
39. In addition, in relation to the same point, although not referred to in the grounds or submissions, this issue was considered in Rosa, at [40]-[41]. The Court of Appeal concluded that the tribunal had been correct to look at the evidence concerning the relationship after the marriage, since that was capable of casting light on the intention of the parties at the time of the marriage. In that case the Court was satisfied that the tribunal understood that the ultimate question was whether the marriage was one of convenience. I am similarly satisfied that this is what the FtJ understood to be the ultimate question in the case with which I am concerned.
40. As regards ground 3 (errors of fact made by the FtJ), it was conceded before me that the FtJ's finding of inconsistency over attendance at the appellant's birthday party was in error in terms of the appellant having used the word "friend" when she in fact said "friends", which puts into context the sponsor having given the number of attendees as (over) about 18 people. In addition, in so far as the FtJ concluded that there was a difference between them in their evidence as to where the birthday celebration was, it does seem to me that he was wrong to conclude that there was inconsistency in the appellant saying it was in Holland Park and the sponsor saying that it was about a 10 minute walk from Shepherd's bush. There is also something to be said in favour of the contention that the FtJ was wrong at [26] where he implied at least, that there was inconsistency in terms of a person called "Rema" (elsewhere referred to as "Remus"), who attended the wedding. Here it seems to me that the FtJ misread the manuscript writing on the marriage certificate as "Rinkis" when in fact it may be said to read "Rimus” or “Rimas”, and thus the inconsistency is not so stark.
41. I cannot see however, that there is any error on the part of the FtJ in his recording of the evidence as to what celebration there was, or was not, after the wedding. The notes of the evidence relied on in this respect do not seem to me to bear out that point. The reliance in submissions on what was said in the interviews in this respect does not assist since at [24] and [25] the FtJ was referring to the oral evidence before him.
42. As regards any errors of fact made by the FtJ as revealed in the preceding two paragraphs, I do not conclude that they are errors that amount to an error of law in his assessment of credibility, or at least any such error that would have required the decision to be set aside. But that issue is not decisive in any event in the light of what I say below in relation to ground 1.
43. I have left the 'consistency' point (ground 1) till last. It is in this respect only that I consider that there is any merit in the grounds in terms of an error of law. The interviews of the appellant and the sponsor consisted of about 258 questions of the appellant and 218 of the sponsor (taking out formal questions at the beginning and end of the interviews). On behalf of the appellants a schedule of what are described as 'concordant' answers has been produced. That is said to show about 75 answers that are recorded as being consistent as between them.
44. Nowhere in the FtJ's decision is there any reference to any consistency in their answers. It is not clear from the FtJ's decision as to whether any submissions were made to him in relation to consistency, and the matter was not canvassed before me. Nevertheless, I do consider that this is a matter that the FtJ should have considered when he was assessing the respondent's contention that the answers given in interview were inconsistent. He had a copy of the interview in the respondent's bundle.
45. Of course, it is possible for parties to a marriage of convenience to rehearse their answers. In addition, in itself a mere tally of consistent compared to inconsistent answers has not much value. However, a consideration of the answers that are consistent in terms of their subject matter, along with the number of such answers, is something that ordinarily should be reflected in an assessment of whether or not the marriage is one of convenience. In this case for example, the appellant and the sponsor gave many consistent details about what is said to be their lives together, their home, and about each other.
46. It could not be said that the FtJ's assessment of the central issue in this appeal was complete without consideration of this aspect of the evidence, because it does not reflect an overall assessment of the evidence before him.
47. I recognise that there were a number of matters that led to the FtJ concluding that this was a marriage of convenience, as indicated in my summary of his decision, for example the appellant's deceit in connection with her entry into the UK, and lack of supporting evidence from other occupants of their house. On the face of it, these are matters that the FtJ was entitled to take into account, and at present I can see no reason why they should not feature in any future assessment of the appeal.
48. However, I am satisfied that the FtJ erred in law in his decision by failing to consider the interviews of the appellant and the sponsor as a whole, and thus failing to reflect in his assessment the issue of consistency in their answers. I do not say that he would not have been entitled, after factoring in the consistencies in their answers in interview, to say that he nevertheless concluded that theirs was a marriage of convenience taking all the other evidence into account. However, it cannot be said that had the FtJ not erred in law in this distinct respect, the outcome would necessarily have been the same and that the appeal would still have been dismissed.
49. Accordingly, I am satisfied that that error of law is such as to require the decision to be set aside. At the hearing before me it was submitted on behalf of the appellant that if I found an error of law requiring the decision to be set aside, a further hearing would be necessary, i.e. that the decision should not be re-made on the basis of the evidence presently before the Tribunal.
50. Having reflected on the matter, I consider that the appropriate course is for the appeal to be remitted to the First-tier Tribunal for a de novo hearing, because of the nature and extent of the fact-finding exercise to be undertaken. That is consistent with the Senior President's Practice Statement at paragraph 7.2.
51. Accordingly, the appeal will be remitted to the First-tier Tribunal to be heard afresh, with no findings of fact preserved. The parties of course are at liberty to agree certain facts, but the FtJ's findings seem to me to be concerned mostly with issues that are in dispute.
Decision
52. The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision is set aside and the appeal is remitted to the First-tier Tribunal for a hearing de novo before a judge other than First-tier Tribunal Judge Quinn, with no findings of fact preserved.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

In order to preserve the anonymity of the minor appellant, unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Upper Tribunal Judge Kopieczek 10/03/17