Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13743/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13th September 2016
On 27 September 2016

Before

UPPER TRIBUNAL JUDGE S V PITT
DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

Anugrah Bhuvan Singh
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No Attendance
For the Respondent: Ms Brocklesby-Weller, a Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant, Mr Singh, appeals with permission against the decision of First-tier Tribunal Judge Bradshaw dismissing his appeal against the Secretary of State's decision to refuse him a residence card as the spouse of an EEA national exercising treaty rights in the United Kingdom. The Appellant claims to be married to Ms Katila Da Cruz Fernandes, a Portuguese national. The Respondent had claimed that the marriage was bigamous. The judge had considered the matter on the papers as was asked of him by the Appellant with no objection from the Respondent.
The Hearing
2. Through an abundance of caution we caused enquiries to be made this morning in respect of the non-attendance of Mr Singh at this hearing before us. There was a direct telephone call to Mr Singh via the Tribunal's clerk. Mr Singh had said that he had spoken to his solicitor and that could not attend as "his wife is not around". Mr Singh's solicitors, Messrs Maxwell Solicitors, were also telephoned. They said to the Tribunal's clerk they were not attending the hearing today because they no longer represent the Appellant and indeed there had been no payment for their services. Having considered Rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008, we are satisfied that the Appellant and his solicitors were notified by post of the hearing in good time. We saw no reason not to proceed with the hearing and considered it was in the interests of justice to do so. The Appellant clearly knew about the hearing and has opted not to attend.
First-tier Tribunal's decision and permission to appeal
3. Before the First-tier Tribunal, the respondent maintained that the appellant's wife was already married to a Mr Naseer when she married the appellant and relied on an Immigration Officer's conversation with Mr Naseer which was at Annex F of the respondent's bundle.
The decision of the First-tier Tribunal had said at paragraphs 11 and 12 as follows:
"11. The appellant argued that the respondent had provided no proof that his wife had been previously married, no date and no details nor that Mr Naseer was still in the UK. Ms Fernandez denied a previous marriage and the Appellant argued that the evidence he had produced showed that they were still together. He produced photos, a marriage certificate and payslips together with bills showing her at his address before the date of application.
12. The evidence of the marriage visit appears to show that Ms Fernandez had left Mr Naseer and was at the appellant's address at the date of application. They may well still be together. However, the respondent has provided sufficient evidence that the marriage entered into was bigamous and the burden is on the appellant to show that the previous marriage had been dissolved and that he has not done that. It is not for the respondent to demonstrate the whereabouts of Mr Naseer. ?"
4. First Tier Tribunal Judge Colyer had granted permission to appeal in this case noting it was arguable that there was insufficient reasoning.

Respondent's Submissions
5. We have taken into account a Rule 24 reply that the Secretary of State has relied upon. Before us today Ms Brocklesby-Weller on behalf of the Secretary of State has very helpfully told us that she has made some preliminary enquiries. She has also attempted to obtain other documents and paperwork in respect of the claimed prior marriage of Ms Fernandes. She has explained to us that even if we put the matter back, the further documentation would not be available today, but that it would be available in the near future.
Discussion and Reasoning
6. In discussion this morning, Ms Brocklesby-Weller conceded that there was a leap in relation to the judge's findings that the respondent's evidence was sufficient to show bigamy. We agree with Ms Brocklesby-Weller. The concession was rightly made because the evidence of the Immigration Officer was not, in our view, sufficient to allow the judge to accept the Respondent's allegation that there was a bigamous marriage. The thrust of the interview with Mr Naseer was that his relationship with Ms Fernandes, if it had ever existed, was over. It did not address whether a legal marriage had been entered into such that Ms Fernandes was not free to marry the Appellant. It was our conclusion this leap in reasoning amounted to a material error on a point of law such that the decision had to be set aside.
7. Having considered the further disposal of this case, we come to the view that the appropriate venue for a rehearing of this matter will be at the First-tier Tribunal. We therefore set aside the First-tier Tribunal Judge's decision in its entirety. It will be for that Tribunal to make appropriate directions in due course, but we would expect the Secretary of State at that stage to have filed and served the evidence which she seeks to rely upon in relation to the claimed bigamy and we expect the Appellant to file and serve replies in respect of the evidence which he seeks to rely upon in support of his case.

DECISION
The decision of the First-tier Tribunal contained a material error of law and is set aside. None of the previous findings shall stand.
There shall be a re-hearing at the First-tier Tribunal.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Mahmood 27 September 2016