Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15597/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2nd March 2017
On 14th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

MR UDAMADURA LALITH PRASANA AMARASENA
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Maqsood instructed by PGA Solicitors LLP
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant, a citizen of Sri Lanka, appealed to the First-tier Tribunal against the decision of the Secretary of State dated 2nd April 2015 refusing his application for a residence card as confirmation of his right to reside in the UK as the spouse of an EEA national exercising treaty rights in the UK. First-tier Tribunal Judge Malcolm dismissed the Appellant’s appeal and the Appellant now appeals with permission to this Tribunal.
2. The background to this appeal is that the Appellant claims to have entered the UK on 7th November 2011 on a T4 (General) Student visa valid until 10th January 2015. He was granted leave to remain as a general student on 1st May 2014 but that leave was curtailed on 1st December 2014. On 4th December 2014 he applied for an EEA residence card and the refusal in relation to that application is the subject of this appeal.
3. In the reasons for refusal letter the Secretary of State outlined details of a visit by Immigration Officers undertaken on 31st March 2015 to the Appellant’s address. The Immigration Officers’ report of this visit sets out details of conversations with the Appellant, texts on the Appellant’s phone, a conversation with the Appellant’s wife’s boyfriend and a report of a subsequent meeting between Immigration Officers and the Appellant’s wife. On the basis of this evidence the Respondent concluded that the Appellant’s marriage to the EEA national was one of convenience for the sole purpose of him remaining in the UK.
4. At the hearing before the First-tier Tribunal Judge the judge set out the details of the Appellant’s witness statement and oral evidence as well as the evidence from the Immigration Officers’ report noting at paragraph 31 that the Appellant’s representative confirmed that the content of the text messages as detailed in the report was not refuted and that the Appellant has accepted that his wife was in a relationship with someone else at the Immigration Officers’ visit.
5. In her findings the judge considered the evidence from the Immigration Officers’ report including the content of the text messages and the Appellant’s own evidence and concluded that the Appellant was not credible and that the Appellant’s marriage to the EEA national was a marriage of convenience.
6. The application for permission to appeal sets out three grounds of challenge to this decision. The first ground contends that the judge applied the wrong burden of proof and failed to follow the guidance in the case of Papajorgji (EEA spouse –marriage of convenience) Greece [2012] UKUT 00038 (IAC). The second ground contends that the judge erred in considering the evidence in giving weight to the contents of the text messages rather than the evidence of the Appellant and the evidence of the marriage between the Appellant and the EEA national. The third ground contends that the judge erred in failing to deal with the Appellant’s Article 8 claim.
7. In the grant of permission to appeal First-tier Tribunal Judge Kelly acknowledged that the Tribunal’s decision does not contain any explicit reference to the burden of proof concerning the Respondent’s allegation that the Appellant entered into a marriage of convenience and that this constitutes an arguable error of law.
8. At the hearing before me Mr Maqsood submitted that the only place the First-tier Tribunal Judge set out the burden of proof was at paragraph 2 and that there set out the wrong burden of proof. He submitted that in the whole determination there is no indication elsewhere as to how the burden of proof operates in the case such as this considering a marriage of convenience. He submits that that error infects the First-tier Tribunal’s decision. In terms of the second ground he relied on the grounds and submitted that the judge erred in his approach to the evidence. He accepted that he was unable to pursue the ground contending that there was an error in relation to Article 8 in light of the case law.
9. Mr Maqsood submitted that the error was material in this case because it was not possible to know definitively that had the burden of proof been approached correctly the outcome would have been the same. When I asked him if the evidence produced by the Secretary of State would have been sufficient to discharge the burden of proof had the judge approached it in that way he accepted that it would have.
10. Ms Fijiwala submitted that there was no material error at paragraph 2 because the judge considered the Immigration Officers’ report first and, although the judge does not explicitly set out the burden of proof, it is clear from the way the decision is approached that there was no error. She referred to the decision of Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14 and submitted that the Secretary of State had to provide evidence of a reasonable suspicion and she submitted the Immigration Officers’ report in this case was sufficient to do that. The judge relied on aspects of that report by quoting the text messages and by referring to the Appellant’s attempt to mislead the Immigration Officer in terms of his phone. The Immigration Officers’ report relates to the conversation with the Appellant’s wife and her boyfriend and this all conflicted with what the Appellant told the Immigration Officer and the Tribunal.
11. She submitted that once the initial burden had been discharged then it is the judge’s job to consider all the evidence and she submitted that this what the judge did at paragraphs 40 to 51 where she considered the report and then looked at the Sri Lankan marriage and the photographs but found that the Immigration Officers’ report outweighed the Appellant’s evidence.
12. She submitted that the judge believed the Appellant’s wife’s evidence as to when the couple separated and did not accept the Appellant’s reasons for the wife not attending at the hearing. The Appellant had been able to point to any piece of evidence that the judge had failed to take into account and there is no material error.
13. She further submitted that it was accepted at the hearing that at the time of the hearing the couple were separated. She submitted that there was no evidence at the date of hearing that the Appellant’s wife was at that time exercising treaty rights.
14. In response Mr Maqsood submitted that the Appellant was not asking for a residence card at the date of the hearing but the primary concern was having the marriage of convenience decision considered by the First-tier Tribunal.
Error of Law
15. The proper approach to deciding on the issue of a marriage of convenience has been set out in the cases of Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038 and IS (Marriages of convenience) Serbia [2008] UKIAT 00031. In the case of IS the Tribunal stated at paragraph 14;
“14. As we have said, these three reasons taken together lead us to the view that the burden of proving that a marriage is not one of convenience lies on the appellant. We would, however, also associate ourselves with the wording of the Council Resolution to this extent. Not every applicant needs to prove that his marriage is not one of convenience. The need to do so only arises where there are factors which support suspicions for believing the marriage is one of convenience. Translated into the technical language of the English law of procedure and evidence, that means that there is an evidential burden on the respondent. If there is no evidence that could support a conclusion that the marriage is one of convenience, the appellant does not have to deal with the issue. But once the issue is raised, by evidence capable of pointing to a conclusion that the marriage is one of convenience, it is for the appellant to show that his marriage is not one of convenience.”
16. In the case of Papajorgji the Tribunal said at paragraph 19 “the important point however is that there must be reason to suspect a marriage of convenience before the application can be suspended pending further investigation”. At paragraph 39 the Tribunal said:
“Our understanding is that, where the issue is raised in an appeal, the question for the judge will therefore be in the light of the totality of the information before me, including the assessment of the Claimant’s answers and any information provided, am I satisfied that it is more probable than not that this is a marriage of convenience?”
17. In the case of Rosa the Court of Appeal said at paragraph 29:
“What I have set out above does little more than to expand upon paragraphs 33 to 37 of the decision in Papajorgji and to reject Mr Kellar's criticisms of the reasoning in those paragraphs. It seems to me that paragraph 14 of the decision in IS Serbia, which prompted the tribunal in Papajorgji to say what it did about the legal burden of proof, was seriously confused. It stated that the burden of proving that a marriage is not one of convenience lies on the appellant, but it also stated that if there is no evidence that could support a conclusion that the marriage is one of convenience, the appellant does not have to deal with the issue. If, however, the legal burden lies on the appellant, the appellant has to adduce some evidence in order to discharge that burden: in the absence of any evidence either way, the appellant will fail. I do not think that that can have been the result intended by the tribunal. The result that I think the tribunal must have intended is achieved if the legal burden of proof lies on the Secretary of State throughout but the evidential burden can shift, as explained in Papajorgji. In my judgment, that is the correct analysis.”
18. I accept that the judge in this appeal did not explicitly deal with the issue of the burden of proof in a case like this. However, in my view, this is not a material error because of the approach the judge actually took to the decision. In this case the Secretary of State submitted a report from an Immigration Officer about a visit to the Appellant’s property in March 2015. This report contained details of text messages, conversations with the Appellant and conversations with his wife and his wife’s boyfriend. It is clear in my view that the judge considered all of this evidence and it is clear that this evidence was sufficient to shift the burden of proof to the Appellant in this case. Therefore whether or not the judge said so it is clear that this evidence was sufficient to do so.
19. In those circumstances it was for the judge to consider the Appellant’s evidence in response to that produced by the Respondent. The judge did so by noting the Appellant’s witness statement and oral evidence in relation to this issue at paragraphs 9 to 25. The judge considered the evidence put forward by the Appellant at paragraph 41 where she noted that the Appellant put forward no reason or explanation why he had claimed that the mobile phone contained a Lebara sim card whereas the evidence showed that the telephone calls were to numbers within the UK.
20. The judge noted the Appellant’s evidence at paragraph 46 and found that the Appellant was not credible in relation to his studying activities. The judge noted the Appellant’s evidence in relation to when his wife was said to have moved out of his home at paragraph 48 and noted that she did not accept this evidence. The judge noted the Appellant’s evidence as to why his wife was not present at the hearing and did not accept this evidence. The judge took into account letters of support by four friends of the Appellant [56]. The Appellant also took into account that the Appellant’s wife did not attend the hearing to support the Appellant’s appeal [45].
21. It is clear that on the basis of this evidence it was open to the judge to reach the conclusion that the Appellant had not discharged the burden upon him to establish that this was not a marriage of convenience and it was open to the judge to conclude at paragraph 57 that the Appellant’s marriage to the EEA national was a marriage of convenience. In these circumstances, despite not adequately setting out the burden of proof, the judge made no material error.
22. Mr Maqsood made no detailed submissions in relation to the second Ground of Appeal and I see no merit in that ground. The judge considered all of the evidence weighing up the evidence for and against the Appellant and I consider there is no material error in the judge’s consideration of the evidence.
23. Mr Maqsood properly did not pursue the third Ground of Appeal contending that the judge erred in her approach to Article 8 properly.
Notice of Decision
There is no material error of law in the decision of the First-tier Tribunal.
No anonymity direction is made.

Signed Date: 13 March 2017

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD
The appeal has been dismissed and there can be no fee award.

Signed Date: 13 March 2017

Deputy Upper Tribunal Judge Grimes