Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13401/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 November 2016
On 12 January 2017

Before

LORD MATTHEWS, SITTING AS AN UPPER TRIBUNAL JUDGE
DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

KAW
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Wells, Counsel, instructed by M & K Solicitors
For the Respondent: Ms Z Ahmad, Home Office Presenting Officer

DECISION AND REASONS

1. This is the appeal of KAW from a decision of First-tier Tribunal Judge Broe promulgated on 27 June 2016, finding that the appellant's putative marriage to BB was a marriage of convenience.

2. Mr Wells presented four distinct grounds of appeal. We shall deal first of all with ground 2, which in our opinion is the strongest of the grounds. The judge relied on a report of an unannounced visit which showed a number of items of female clothing in the flat where the appellant lived. A number of other matters were contained in the report, details of which appear in the original determination, but they are not material for present purposes.

3. The judge not only had regard to the report but also to the appellant's medical records, which were provided by way of an explanation for his inability to attend an interview which had been arranged on behalf of the respondent. He refers to these records at paragraphs 34 and 35 of the determination and points out that the notes record that the appellant suffered from various ailments but in particular back pain. He noted that the appellant went to see his doctor on 21 September 2015 and quoted the record as follows:

"History: He got bad new [sic] yesterday, his brother back home died suddenly due to MI at age 40 years. He has not slept since he heard the bad new, sad tearful since, he lives in a shared flat, came with his flatmate today - who is keeping an eye on him."

4. He goes on to say that the plan noted in the record was "Had a chat to patient (BCB) (or (8CB), it is not clear which), friends are keeping an eye on him". At paragraph 35 he says that he finds it significant that there is no reference to the appellant's wife anywhere in the medical records. He says it is clear that the appellant spoke to his doctor about his grief and was accompanied by the person with whom the doctor notes he shared a flat. The plan was that his friends would keep an eye on him. There is nothing to suggest, he says, that he had the support of his wife at the time of the death of his brother.

5. He also goes on to note that the medical records show that he was living at a particular address on 25 September 2015 but also that from 18 July 2011 to 4 December 2014 he was living at a different address in Luton, which contradicted the appellant's account of living in Peterborough. These matters were not put to the appellant and there was no Home Office Presenting Officer appearing on behalf of the respondent at the original hearing.

6. A discussion about the import of these paragraphs ensued before us and a number of authorities were referred to both in connection with this discrete point and in connection with other arguments which were raised about irrationality and lack of reasons.

7. In particular the Home Office Presenting Officer, Ms Ahmad, relied on the case of Maheshwaran [2002] EWCA Civ 173 at paragraph 5 where the following was said:

"Where much depends on the credibility of a party and when that party makes several inconsistent statements which are before the decision maker, that party manifestly has a forensic problem. Some will choose to confront the inconsistencies straight on and make evidential or forensic submissions on them. Others will hope that 'least said, soonest mended' and consider that forensic concentration on the point will only make matters worse and that it would be better to try and switch the Tribunal's attention to some other aspect of the case. Undoubtedly it is open to the Tribunal expressly to put a particular inconsistency to a witness because it considers that the witness may not be alerted to the point or because it fears that it may have perceived something as inconsistent with an earlier answer which in truth is not inconsistent. Fairness may in some circumstances require this to be done but this will not be the usual case. Usually the Tribunal, particularly if the party is represented, will remain silent and see how the case unfolds."

8. This is not the same sort of situation as that where a witness makes two mutually contradictory statements in the course of giving evidence. The witness should know for himself or herself that he has done so and the Tribunal can take what they wish from that without further ado.

9. In this case, however, it appears to us that the judge has conducted his own examination of the medical records and drawn conclusions which may or may not be open to him. For example, we do not know who the flatmate is, we do not know how the appellant communicated with the doctor, we do not know if the doctor in fact has wrongly assumed that the flatmate was a mere flatmate. For all we know it may been the putative wife. We simply do not know who this flatmate is or what sex the flatmate is. This could potentially have been resolved had the issue been put to the appellant.

10. In addition the reference to the addresses is not something which was put to the appellant and is a matter which seems to us to be of some materiality. Whether or not it is necessary for a judge to put matters to an appellant will depend very much on the context and on the nature of the case. In our opinion this is a case where had these matters been weighing with the judge then he ought to have either mentioned it at the time or in due course asked for written submissions on the matter.

11. We find that these matters are material in the sense that a different decision could have been made. In particular, we note that the judge found it "significant" that there was no reference to the appellant's wife anywhere in the medical records, assuming no doubt that the flatmate was not the wife. It may or may not have been her but that is a matter which should have been explored in evidence.

12. We do not need to consider the other arguments which were presented, which were detailed matters of irrationality, but we do wish to point out that something was said before us about the reference to language. In paragraph 15 of the determination the judge tells us that he asked the appellant how he and his wife communicated. He said that she understood basic English. She spoke the "gypsy language" of which he could understand a little bit. In a reference to her giving evidence, he narrated that she said that she and the appellant communicated "in the gypsy language and we use Czech. I am learning English as well". He tried to clarify the question and asked what language they used at home and she said "mostly gypsy and Czech".

13. While there is not a complete consistency between the two answers it is not clear at all to us what weight, if any, the judge gave to the evidence as to language or indeed what he accepted. The existence of a common language is a matter of some materiality in deciding whether a marriage is one of convenience or not and one would have expected rather clearer findings than we did in this case.

14. In all the circumstances we are satisfied that this is a decision which cannot stand, being vitiated by an error of law in relation to ground 2. We make no comment on the other grounds. We do not think it is necessary to do that at this stage. Since the matter has to be reheard it is better, we think, if we do not say anything about individual aspects of the evidence which might influence another judge hearing the case in due course.

15. We have decided that this case is one of those rare cases, paying due regard to the President's Practice Note, in which a complete fresh factual hearing will have to be held and we think it appropriate to remit the case to the First-tier Tribunal for that to be done. The decision is therefore that we allow the appeal and remit it to the First-tier Tribunal for a fresh determination.

16. We note that in the First-tier Tribunal there was an anonymity direction made but neither party was able to tell us why. In case we have missed something we shall maintain that direction meantime but the matter should be revisited by the First-Tier Tribunal if appropriate.

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

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

LORD MATTHEWS
Sitting as an Upper Tribunal Judge
(Immigration and Asylum Chamber)

Date: 11 January 2017