IA/14470/2015

• Status of case: Unreported
• Hearing date: 20 Oct 2016
• Promulgation date: 4 Nov 2016
• Publication date: 17 Jul 2020
• Last updated on: 17 Jul 2020

The decision

IAC-fH-ck-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14470/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 20 October 2016
On 4 November 2016


Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER


Between

Faraz Aslam
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Ms C Hulse, instructed by Haris Ali Solicitors
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer


DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal dismissing his appeal against the respondent's decision made on 26 March 2015 refusing him a residence card as the spouse of an EEA citizen, exercising treaty rights.



Background

2. The appellant is a citizen of Pakistan born on 9 November 1990. He first entered the UK on 13 July 2010 and was subsequently granted further leave to remain as a Tier 4 (General) Student until April 2015. On 6 May 2014 he married his wife (the sponsor), a Lithuanian national. On 1 August 2014 he applied for a residence card, his application being refused on 26 March 2015.

3. His sponsor came to the UK in February 2013. They had previously been in contact on Facebook in December 2012 through a common friend. Following the sponsor's arrival in the UK their relationship developed and on their account they moved in together on 14 February 2014 and were subsequently married on 6 May 2014 at Barnet Register Office.

4. However, the application was refused as the respondent was not satisfied that there was a genuine subsisting marriage. Taking into account a visit undertaken by immigration officers to their address at [38 ~], London, it was the respondent's view that the marriage was one of convenience for the sole purpose of enabling the appellant to remain in the UK. The appellant appealed against this decision and his appeal was heard by the First-tier Tribunal on 6 April 2016.

The Hearing before the First-tier Tribunal

5. The judge heard oral evidence from the appellant, the sponsor and Mr Faisal [B], one of their friends. It was his evidence that he was present at the wedding as he was a friend of both parties. He confirmed that he saw them once or twice a month and that he was not aware of any connection the appellant had to Great Yarmouth, other than that he drove his wife to work there every week.

6. The significance of Great Yarmouth arises in the context of whether in fact the appellant and the sponsor were living together at the appellant's home at [38 ~], London. When immigration officers visited on 14 November 2014 there appeared to be very few items of female clothing at the property and the appellant did not have the sponsor's telephone number on his mobile phone. There was further evidence from a Facebook page showing the sponsor's location in October 2014 as Great Yarmouth and her relationship status as "open" as at August 2014. It was the sponsor's oral evidence that she worked three days a week in Thetford and she and her husband stayed with a friend in Great Yarmouth. She had detailed her location on Facebook as Great Yarmouth because she wished to avoid others knowing where she was as those who needed to know had the correct information.

7. When considering the evidence the judge said that he considered that the material issues arising from the interview and indeed from the evidence related to the issues over the sponsor's clothing at the appellant's home, the matter of the mobile phone and the Facebook information. The judge did not accept the appellant's evidence about the lack of clothing at his property when he asserted that the officers had declined to look at both sides of the cupboard. He considered the lack of the sponsor's number in the appellant's phone to be significant in assessing the genuineness of the relationship between the parties and he did not find the sponsor's evidence as to why for Facebook purposes she had not detailed her address as London as opposed to Great Yarmouth. He commented that it was notable that the sponsor on Facebook had detailed her relationship as "open" and that this was completely inconsistent with the suggestion that the appellant and sponsor were in a committed relationship. He found that the respondent had discharged the onus of showing that the marriage was not genuine and the appeal was dismissed.

The Grounds and Submissions

8. In the grounds of appeal it is argued that the judge gave undue weight to the issues arising from the appellant's interview, the lack of female clothing at the appellant's home, the matter of the mobile phone and the Facebook information, so wrongly narrowing the parameters within which to consider the genuineness of the appellant's relationship to his wife. It is further submitted that the judge erred by failing to make any findings on a number of items of relevant evidence: the evidence of Mr Faisal [B], who had attended the hearing, the phone records produced in evidence, the tenancy agreement for [17 ~] and utility bills for that property.

9. Permission to appeal was granted by the First-tier Tribunal on the basis that it was arguable that the gamut of issues which fell for consideration before concluding whether or not the marriage was genuine extended beyond the issues of the sponsor's clothing at the appellant's home, the matter of the mobile phone and the Facebook information.

10. Ms Hulse submitted that the judge had not considered all the evidence and in particular had failed to take into account the oral evidence from Mr [B], the written evidence from other supporting witnesses at 165 and 172 of the bundle and the evidence of the phone records and utility bills. She also sought to take issue with the weight attached to the immigration officers' report in the absence of oral evidence from those who had compiled the report.

11. Ms Brocklesby-Weller submitted that the judge had carefully recorded the evidence of the witnesses and the submissions made on behalf of both the appellant and the respondent. He had gone on to assess the evidence and had reached findings properly open to him. He had not erred in law by focusing on the evidence which he regarded as material. He had been entitled to draw an adverse inference on credibility from the contradictions in the evidence of both the appellant and the sponsor. She conceded that when the judge set out his findings in [89] - [105] there was no reference to the evidence of Mr [B] but she submitted that the judge's findings were properly open to him in the light of the significant discrepancies he had identified in the evidence.


Assessment of whether the First-tier Tribunal erred in Law

12. I am satisfied that the judge erred in law by failing to deal in his findings with the oral evidence of Mr [B] or the documentary evidence which was capable of supporting the appellant and sponsor's evidence about the nature of their marriage. That evidence is by no means determinative but it is relevant in the sense that it is material to the issues in dispute and capable of affecting the outcome of the appeal. Mr [B]'s evidence included confirmation that he saw the parties once or twice a month and that the appellant drove the sponsor to Great Yarmouth every week because of her work. There is no indication in the judge's findings of what view he took of that evidence or of the tenancy agreement, the phone records, the utility bills and the statements of other witnesses to the effect that the relationship was genuine.

13. Without some reference to this evidence in the findings and conclusions, it is not possible to infer that in the light of the judge's other findings of fact, he must have concluded that it was unreliable. I am, therefore, satisfied that the judge erred in law either by failing to take relevant evidence into account or by failing to explain why it did not affect the conclusions he had reached on the aspects of the evidence he had identified as material.

14. I am satisfied that the error is such that the decision should be set aside and that the proper course is for this appeal to be remitted to the First-tier Tribunal for reconsideration afresh by a different judge.

Decision

15. I am satisfied that the judge erred in law such that the decision should be set aside. The appeal is remitted to the First-tier Tribunal at Hatton Cross for reconsideration by a different judge. No anonymity direction was made by the First-tier Tribunal.



Signed H J E Latter Date: 3 November 2016

Deputy Upper Tribunal Judge Latter