Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15271/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th November 2016
On 7th December 2016

Before

UPPER TRIBUNAL JUDGE BLUM

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Sukhwinder Singh
(anonymity direction NOT MADE)
Respondent

Representation:

For the Appellant: Mr Bramble, Home Office Presenting Officer
For the Respondent: Ms Revill, Counsel, instructed by ATM Law Solicitors

DECISION AND REASONS

1. The Secretary of State for the Home Department (the Appellant) appeals against a decision of Judge of the First-tier Tribunal McDade, promulgated on 15th March 2016, allowing the appeal of Mr Singh (the Respondent) against the Appellant's decision refusing to issue him a residence card under the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations).
Background

2. The respondent is a citizen of India, date of birth 7th September 1976. He applied for a residence card based on his relationship with Ms Agnieszka Tancula, a national of Poland. In his decision the judge considered an interview with the respondent and his partner conducted by Immigration Officers. The judge analysed those questions that were said to have been inconsistent as between the Respondent and his partner. According to the judge these amounted to a mere 7 questions out of 522. The judge found that some of the inconsistencies were miniscule, that others could be reasonably explained and that others had limited significance.

3. The judge concluded that some of the alleged inconsistencies did not reflect what was actually said in the interview. The judge pointed to the general consistency in answers given by the respondent and his partner and found that, while the respondent's motivation at the time of the marriage may well have been to have enabled him to remain in the UK, he had in the meantime developed a genuine relationship with his wife and became genuinely emotionally committed to her. Having regard to the financial and photographic evidence and having considered the evidence cumulatively, including the evidence of the witnesses, the judge concluded that the marriage was genuine.

The grounds of appeal

4. The grounds of appeal contend that the judge acted in a procedurally unfair manner by refusing to admit a document that was contained in the Appellant's bundle relating to a visit by immigration enforcement officers to the respondent's home on 14th October 2014 and which was served in accordance with First-tier Tribunal directions. It was submitted that the report went to the central issue of whether the marriage was one of convenience and that the exclusion by the judge of the report prevented cross-examination on its contents, which was wholly disproportionate.

5. In granting permission to appeal the First-tier Tribunal Judge stated:

"I find that it is arguable that the judge's exclusion of the evidence is entirely inconsistent with the overriding objective that requires that cases are dealt with fairly, justly and proportionately. Bearing in mind the burden of proof was on the respondent the judge should have allowed the respondent to rely on its evidence and deal with the matter by attaching the appropriate weight to the evidence. The judge also erred in his final paragraph of the decision by stating that the Appellant had discharged the burden of proof to the requisite standard namely the balance of probabilities. In a marriage of convenience case the legal standard of proof is on the respondent although the evidential burden shifts."

The Upper Tribunal hearing

6. I am grateful to both Mr Bramble and Ms Revill for their helpful submissions and for the skeleton argument provided by Ms Revill. In essence Ms Revill contends that the judge was fully entitled to have excluded the evidence given the concerns expressed by him relating to the reliability of the document and, in the alternative, had the judge admitted the document it would have made no difference to his eventual outcome because of the concerns he expressed relating to its reliability. In other words, the judge could not have attached very much weight to the document or to any answers arising from cross-examination of the document given his other findings.

7. At paragraph 2 of the decision the judge said this:

"A visit by Immigration Officers was made to the property and that visit generated an interview of both the Appellant and his spouse Agnieszka Tancula. The visit to the property was not evidenced either by a witness statement or a pocket notebook entry. The record of the visit was a summary, non-contemporaneous and it is unclear whether the author of the summary was one of the officers who undertook the inspection. I hold that the result of the inspection cannot be admitted into evidence because of the apparent absence of clear evidence that anyone present at the time of inspection has adduced evidence of the alleged findings."

8. I have also considered the visit note. This is contained on a form IS.126. It appears to be a covering report relating to the visit; a log reference number is provided as well as the identity, albeit in brief form, of the Immigration Officers who visited the home. It notes that the respondent was not present at the time of the visit. The respondent's wife gave the date of her marriage to the Respondent and said that they had been living together for three years. She provided the identity of her employer following which an inspection of the bedroom took place.

9. There was said to be one wardrobe with mainly female clothing in it. There were some male clothes in the wardrobe but some of them had the labels still attached which were in Polish. Ms Tancula had informed the immigration enforcement officers that her brother also lived in the property. It was suspected by the immigration enforcement staff that the clothing in Ms Tancula's wardrobe belonged to the Ms Tancula's brother and not the respondent. There was said to be an absence of male shoes in the room although there was a wedding photograph and some other photos of the couple in the room. There was said to be a general absence of the respondent's possessions around the property.

10. In addition Ms Tancula's command of English was said to be poor despite her claim in the interview that she communicated with her husband in English. The immigration enforcement staff formed the impression that the respondent did not reside at the address permanently or that the relationship was subsisting.

Discussion

11. Having regard to the note I am satisfied that the judge did err in law to a material extent by failing to admit this document. As Ms Revill indicated both orally and in her skeleton argument, it was open to the judge to have attached little weight to the report for the reasons that he gave, but there are no formal rules in relation to the admittance of evidence in this jurisdiction and a document should be admitted if it is both relevant and in compliance with directions. I am in no doubt that this document was relevant and that it was served in compliance with directions.

12. The judge may ultimately have reached the same conclusion had he admitted the document and attached little weight to it. However, in the absence of any opportunity to undertake cross-examination based on this document it cannot be said that the judge would have inevitably allowed the appeal. I am satisfied that the refusal to admit the document into evidence amounted to procedural unfairness and that the matter ought to be remitted back to the First-tier Tribunal.

13. I am satisfied that this appeal ought to be returned to the same judge with a direction that he admits the form IS.126 document and hears any cross-examination or any further evidence that may be adduced by the respondent in relation to the document. This is because there have been detailed findings of fact by the judge that have not been the subject of any challenge by the respondent and which are unaffected by the failure to admit the document. I see no reason why those detailed findings of fact should be displaced in circumstances where they can be supplemented by a lawful and holistic assessment following the admittance of the document and any further evidence that may be produced by the Appellant.

14. In those circumstances I find a material error of law. The matter will be remitted back to Judge McDade who will admit the form IS.126. Both the Appellant and Respondent are given permission to adduce any further evidence that they regard as relevant.

Notice of Decision

The appeal is allowed to the limited extent that it is remitted back to judge of the First-tier Tribunal McDade. Judge McDade will admit the form IS.126 document and any further evidence upon which either party may seek to rely.

No anonymity direction is made.

Signed Date

Upper Tribunal Judge Blum 06 December 2016