Tribunal decisions

The decision

IAC-AH-dp-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16212/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26th January 2017
On 15th March 2017

Before

UPPER TRIBUNAL JUDGE REEDS

Between

mr kwaku sarpong
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Colman, Counsel instructed on behalf of Nasim & Co Solicitors
For the Respondent: Mr Tufan, Senior Presenting Officer

DECISION AND REASONS
1. The Appellant appeals with permission against the decision of the First-tier Tribunal who, in a determination promulgated on 15th August 2016 dismissed his appeal against the decision of the Secretary of State to refuse his application for a residence card under the EEA Regulations having been made on 17th October 2014.
2. The factual background of the Appellant is set out in the papers. He is a male citizen of Ghana born on 8th October 1980. He had married in Ghana his wife, an Irish national on 28th April 2011. The Appellant entered the United Kingdom on 24th June 2011 as an EEA family member to join his spouse and held an EEA family member visa valid from 20th June 2011 until 20th December 2011. The Appellant was subsequently issued a residence card valid from 16th February 2012 until 16th February 2017 as the family member of an EEA national, namely his wife.
3. The marriage did not continue and the parties were divorced on 2nd October 2014. It appears that the separation was some time prior to this and at paragraph [8] of the Appellant’s witness statement, he makes reference to having visited Dublin in 2012 to visit his former spouse’s family for Christmas but they returned after a few days due to “family disagreements” the marriage broke down. The Appellant relied upon a decree absolute granted by the Family Court on 2nd October 2014 in relation to the marriage that had taken place on 28th April 2011.
4. The application that was made by the Appellant was an application for a retained right of residence pursuant to Regulation 10 of the 2006 Regulations. Accompanying the application was a letter from his solicitors dated 16th October 2014 and at the hearing before the Upper Tribunal, a complete document was provided consisting of the covering letter and the documents which were enclosed with that application. It transpired at the hearing that the documents that were referred to in that covering letter had not been reproduced in the Respondent’s bundle. One of those documents related to the Appellant’s Ghanaian passport which contained evidence to support a visit to Dublin in 2012. In any event, those documents included the divorce decree absolute, bank statements of the Appellant, P60 documentation for both he and his former wife. Following that application, a request was made by the Respondent for the Appellant to attend an interview on 13th March 2015 (see request of 21st February 2015). On 5th March 2015, his solicitors informed the Respondent that the Appellant did not wish to attend the interview enclosing a signed letter of the same date requesting the decision to be taken on the basis that had already been submitted with the application. The papers demonstrate that a second invitation was made on 17th March 2015 which was also declined by the Appellant. It is not clear to me on the face of the papers or from the submissions of the parties as to what in particular it was that had triggered the request for an interview. Regulation 20B “verification of a right of residence” clearly provides power to the Secretary of State to invite either an Appellant or his partner or indeed both to attend an interview (see 20B(2) and (3)). If either the Appellant or his partner fail to provide additional information or, on at least two occasions, fail to attend an interview so invited, sub-paragraph (4) states the Secretary of State may draw a factual inference about the Appellant’s entitlement to a right to reside as appear appropriate in the circumstances but at (6) the Secretary of State does not decide that an Applicant does not have or ceases to have a right to reside on the sole basis that the Applicant failed to comply with this Regulation.
5. There appear to be a number of decisions of the Secretary of State. Some of which were not complete in my bundle however with the assistance of the parties it was possible to ascertain that on 14th April 2015 there was a Notice of Immigration Decision served entitled “Revocation of a Residence Card” with a supporting reasons for revocation letter. The notice made reference to his previous issue of a residence card but that the Applicant had provided a decree of divorce which meant that he had ceased to be a family member of a qualified person and therefore no longer had a right of residence. The Notice of Immigration Decision stated “thus your residence card is hereby revoked with reference to Regulation 20(2). The accompanying reasons for revocation letter set out the Appellant’s immigration history and again made reference to the divorce decree on 2nd October 2014 and went on to state
“As a result there is no evidence to demonstrate that you currently have a right to reside in the United Kingdom under the Immigration (European Economic Area) Regulations 2006. Therefore, it has been decided to revoke your residence card with reference to Regulation 20(2) of the Immigration (European Economic Area) Regulations 2006.”
In addition there was a further Notice of Immigration Decision. This was a refusal to issue a residence card under Regulation 10(5). In that notice, the Secretary of State set out that the Appellant had not provided sufficient evidence that he had a retained right of residence following his divorce from an EEA national in accordance with Regulation 10(5) and 10(6) of the Immigration (EEA) Regulations 2006. At page 17 of the bundle there was an accompanying reasons for refusal letter. In that letter it made reference to the requirements necessary to qualify for a retained right of residence following divorce from an EEA national in accordance with Regulation 10(5) of the EEA Regulations 2006. It seemed to accept that the Appellant had provided a divorce decree which proved that the marriage had lasted for three years and evidence that he and his former spouse resided in the United Kingdom for at least one year during the marriage. The refusal letter went on to state that the Applicant had applied for a residence card “under the assertion that you were in a genuine relationship with X, whom it is claimed was exercising her right to free movement”. The refusal letter then set out the documents that had been provided. It then made reference to Regulation 20B referring to the methods to which verification of rights of residence could be undertaken. After citing that Regulation the decision letter went on to state that since he was issued with a residence card, the department “has received information that the marriage to an EEA national was never genuine”. It then made reference to the two invitations to attend what was described as a “credibility interview”. The letter concluded that on both occasions when he was invited for an interview he refused and that as a result of the failure to attend the office assess the application on the documentation provided. It made reference to the P60 certificates that had been provided and made reference to the department finding “discrepancies between the certificate and the letter provided. In this context the decision letter went on to state
“This department finds it unusual that for the three years you were married to your claimed EEA national spouse you were living at a different address to her, the documentary evidence you have provided is evidence of this. It is also noted you were invited to two interviews and refused both invitations without giving a valid reason, this cast further doubt on your previous marriage”.
The letter went on to state
“As a result of the non-compliance and failures outlined above, it is abundantly clear that you have fatally and irreparably damaged the credibility of your claim to be in a genuine relationship ... it is posited that a person party to a genuine relationship would do their utmost to comply with the Regulations and you have failed to do so”.
The Regulation then sets out a reference to Regulation 2 which states that a spouse does not include a party to a marriage of convenience and concluded as follows:
“Based on the information detailed above, the Secretary of State has sufficient evidence to believe that the marriage undertaken on 28th April 2011 was one of convenience for the sole purpose of you remaining here in the United Kingdom. As your marriage to an EEA national has been deemed as one of convenience, you are unable to retain a right of residence.”
Therefore the application was refused. The Appellant appealed that decision which resulted in a hearing before the First-tier Tribunal. The Appellant did not give evidence before the judge but he heard submissions from each of the parties and was provided with a bundle on behalf of the Appellant. As I have set out in the preceding paragraphs, it became clear to me that there was documentary evidence that had been served upon the Respondent but had not been included in the Respondent’s bundle nor had it been put in the Appellant’s bundle.
In a determination that was promulgated on 15th August 2016, the judge, upon the documentary evidence that had been produced found that there were “negative features” of the evidence and did not accept there was a genuine marriage but found that “it was more probable than not that it was a marriage of convenience, entered into so as to facilitate the entry into and continue presence of the Appellant in the UK under cover of a residence card as a spouse of an EEA national” (see paragraph 41) thus he dismissed the appeal.
In that determination the judge made reference to the immigration history that I have set out and in particular the evidence that had been provided relating to the different addresses that related to both the Applicant and the spouse and could be seen on the documentation including the P60s for both parties. The Appellant had provided explanations for the different addresses by reference to his former wife’s occupation and the work that she undertook and why it was necessary for her to live in a different place. There were also other documents before the judge including bank statements, email exchanges, cards and photographs. As I have already said there were other documents but they did not appear before the judge because they had not been exhibited in the Respondent’s bundle although they had been sent to the Respondent which included further photographs and also the passport showing a trip to Dublin in 2012. In the reasons which were given at paragraphs 32 to 41 the judge properly identified the correct burden and standard of proof relating to the issue of marriage of convenience setting out the decision of Papajorgji (EEA spouse – marriage of convenience) [2012] UKUT 38 and also Rosa [2016] EWCA Civ paragraphs 24 to 27.
6. As the grounds of challenge submit there were two legal errors; first of all that the judge referred to the requirement under the EEA Regulations that there was a genuine marriage to last three years and that the couple had spent one year together [paragraph 8]. However as Mr Tufan accepts that was not a correct interpretation of Regulation 10(5)(d)(i) and that there is no lawful requirement to the parties to spend one year together. The grounds also make reference to the evidence of the parties’ different addresses and concluded that this was not a genuine marriage predominantly because the couple did not share a family home. The grounds make reference to a decision of the Upper Tribunal in PM (EEA – spouse – “residing with”) Turkey [2011] UKUT 89 (IAC).
7. Permission to appeal was granted by First-tier Tribunal Judge Hollingworth. He stated as follows:
“1. An arguable error of law has arisen in relation to the extent of the explanation by the judge as to where the burden of proof lies in relation to the scope of paragraph 31 of the decision. Any arguable error of law has arisen in relation to the judge’s interpretation of the requirements pursuant to Regulation 10.
2. At paragraph 8 of the decision the judge has referred to the Appellant needing to establish under Regulation 10 that after the marriage on 28th November 2011 (should be April 2011) there was a genuine marriage which lasted three years and that the couple had spent one year together.
3. At paragraph 41 of the decision the judge has referred to the substantial cumulative weight to the proceeding negative features calling into question whether there was ever a genuine long term relationship.
4. An arguable error of law has arisen in relation to the framework within which the judge has considered the matrix of factors leading to that conclusion. The judge has found on the totality of the evidence that it was more probable than not that it was a marriage of convenience entered into so as to facilitate the entry into and continue presence of the Appellant in the UK under the cover of a residence card as a spouse of an EEA national.
5. It is arguable that the judge considered whether reasonable suspicion having been raised and the evidential burden having switched, whether that evidential burden had been discharged by the Appellant. It is arguable that the judge should have provided a fuller analysis of the degree of weight to be attached to the basis of the grant of a residence permit in 2011.
6. Whilst the judge has stated at paragraph 32 that the legal burden of proof in relation to marriage may lay on the Respondent but if there is adduced evidence capable of pointing to the conclusion that the marriage is one convenience, the evidential burden shifts to the Applicant, it is arguable that the conclusions set out by the judge at paragraph 41 of the decision following the analysis set out, does not reflect that approach.”
8. I have had the opportunity of hearing the submissions of the parties. Mr Tufan for the Secretary of State at the outset of the case did not have copies of the grounds nor the grant of permission and therefore those documents were provided to him and time was given for him to digest them. I therefore had the benefit of each party’s submissions which are set in my Record of Proceedings and I shall refer to them when giving my decision on the error. In essence, Mr Colman, who appeared for the Appellant before the First-tier Tribunal relied upon the grounds to which I have just referred and the grant of permission by Judge Hollingworth. His submissions made reference to the legal errors and in particular that over-emphasis upon the failure of the couple to show a consistent address. In this regard, whilst he observed that the judge had made reference to the decision of PM, he invited the Tribunal to consider that determination and in particular what was set out at paragraph [36] which makes reference to the definition of a “marriage of convenience” but in particular that an inference of marriage of convenience cannot arise solely because a married couple are not living in the same household. He pointed the Tribunal to a number of pieces of evidence which he submitted demonstrated that the judge had improperly drawn inferences from and had led to his misdirection in law relating to the case of PM. In particular the email exchanges which he submitted were consistent with a marriage that simply did not work rather than a marriage of convenience and also the findings at paragraph [34] and [35] relating to the location of East London and the credibility finding made there which had no evidential foundation. He made reference to the joint bank account evidence and also, the cards and photographs that had been provided. In his submissions he made reference to the evidence relating to the Applicant’s passport and it was at this juncture that it became abundantly clear that not all the evidence had been placed before the judge that was relevant because that included evidence showing a visit made by he and his wife to Dublin in 2012 which was a relevant consideration when assessing the issue of the genuineness of the marriage.
9. Mr Tufan by way of response made reference to the documents being provided by the Appellant and that subsequent to that he had been invited on two occasions to attend an interview but he had chosen not to. He therefore submitted that the burden had switched to the Appellant and that it was open to the judge to make those findings of fact. He submitted that paragraph [31] did appear to look like a misdirection but when read with paragraph [32] there was no error of law and that he had not said the burden of proof was on the Appellant. He similarly invited me to look at the evidence and that there was a reasonable inference that could be drawn and that the evidence was such to support the decision made by the First-tier Tribunal Judge.
10. Having heard the parties, I am satisfied that the grounds advanced by Mr Colman and set out in the papers are made out. I shall give my reasons for reaching that conclusion. The EEA Regulations preclude those who are a party to a marriage of convenience from being a spouse and therefore a family member under Regulation 7. As Recital 28 of the Citizens Directive makes clear “a marriage of convenience is an abuse of rights but it is a term strictly limited to relationships contracted for the sole purpose of enjoying free movement rights and with no effective social nexus between the parties”. An inference of a marriage of convenience cannot arise solely because a married couple are not living in the same household. As (see PM as cited) at [36]. As the decision of the Court of Appeal in Rosa (as previously cited) makes plain at paragraph [41], the focus in relation to a marriage of convenience should be on the intention of the parties at the time the marriage was entered into whereas the question of whether a marriage is subsisting looks to whether the marital relationship is a continuing one.
11. In considering this issue I am satisfied that the judge failed to take into account a number of relevant factors and considerations from the evidence as submitted by Mr Colman. The parties had married in Ghana on 28th April 2011 (not November 2011 as set out at paragraph [8]), and had entered the UK in 2011. They must have applied for a family permit and furnished the Respondent with documentary evidence to enable the grant of a residence card for five years. Therefore the Secretary of State must have been satisfied as to the marriage from its inception. This was not a case where the Applicant had provided a valid marriage certificate but an issue had arisen or was taken with the marriage itself. As the grant of permission recognises there was no analysis of the degree of weight to be attached to the basis of the grant of the residence permit in 2011 when considering whether the evidential burden had been discharged by the Appellant.
12. Whilst the judge placed weight at paragraph [33] on the fact that the parties had different addresses and it was this which shifted the evidential burden, however, as Mr Colman submits an inference of a marriage of convenience cannot arise solely because a married couple are not living in the same household (see PM at [36]). I accept the submission made by Mr Colman that the focus throughout the findings of fact centred upon the different addresses and it was this which led to the over-focus on the issue which again led the judge to fail to place in the balance and attach weight to evidence which demonstrated that this was not a marriage of convenience but one that had simply broken down. For example, there was evidence before the judge but made reference to the parties having had an intimate and loving relationship and such relationship had led to a pregnancy (see the email exchanges). I observe that the judge did acknowledge this evidence at [37] but appear to place no weight upon it in his analysis.
13. The email evidence was also of relevance. The tone of the emails are consistent with a normal relationship exhibiting its problems and that they had attempted to set up home at an address together as evidence in those emails and in conjunction with a tenancy agreement. However the judge describes the emails at [37] and refers to the “deep obscurities surrounding their shared life” and that the move was merely a “cosmetic development” so as to provide support for the present application rather than a need for the parties to live together. The email however is dated May 2013 and the parties did not divorce until 2014 and that the second part of paragraph 37 does not sit well with that evidence or with those earlier findings.
14. There was other evidence available such as cards received by the Appellant from his wife described at paragraph [26] and there were also photographs. The judge did not make a finding about those documents. He stated that if the cards were genuine they may well suggest that the relationship had some authenticity but then at [39] went on to make reference to the parties not setting up home together and that it was this which “raised a question mark as the marriage having been extended much beyond to helping the Appellant enter the UK”.
15. I accept the submission made by Mr Colman that the evidence and in particular the email evidence does not justify a finding that the parties had in essence conspired together as to help the Appellant enter the United Kingdom. The content of the cards demonstrate declarations of love (the parties were apart at that time) similarly the birthday card equally containing sentiments of a romantic nature relevant to them. I would accept that there were only a few photographs before the judge. However it appears in fact that there were more that had not been exhibited in the Respondent’s bundle. That there was evidence which if taken together and properly weighed in the balance may have led to a different decision that this was a genuine marriage. It had been submitted on behalf of the Respondent that there was no evidence that the couple ever spent time in Dublin together (see paragraph [29]). However as I have set out there was evidence that had been served upon the Respondent supported by a copy passport that the Applicant had gone to Dublin where his former wife’s parents resided and that then he had been there in or about December 2012. That enclosure and others were not exhibited in the Respondent’s bundle. Nor was it in the Appellant’s bundle. But it was clear that that had been served and there were additional evidence that had not been placed before the judge. There were also bank statements and I accept the submission made by Mr Colman that the credibility findings made at paragraphs [34] and [35] were unsafe. There was no evidence before the judge to demonstrate the locality of the different addresses referred to. The fact that they shared an East London location did not by itself support the finding. Consequently there was no evidential foundation for those findings.
16. Consequently I find that the judge was in error in his analysis of whether this was a marriage of convenience having not taken into account all the evidence when applying the appropriate test. Whilst Mr Coleman submitted that there were no grounds for reaching such an inference by reference to Regulation 20B, it seems to me that there were grounds to ask for further information and/or an interview as set out in the decision letter. However, as the Regulations demonstrate, the Secretary of State must not decide that the Appellant does not have or ceases to have a right to reside on the sole basis that he failed to comply with the request (see paragraph 20B(6)).
17. Therefore I have reached the conclusion that the decision should be set aside. As to the remaking of the decision, Mr Colman invited me to remit the appeal to the First-tier Tribunal for a fresh hearing which would consider the issues and also whether he could satisfy the EEA Regulations for a retained right of residence. At this hearing the parties should ensure that all the documentary evidence that was put before the Secretary of State is available for the next hearing along with any further evidence that the parties seek to rely upon.

DECISION:
18. The decision of the First-tier Tribunal is set aside; the decision is remitted to the First-tier Tribunal for a further hearing in accordance with the Practice Direction.

No anonymity direction is made.

Signed Date

Upper Tribunal Judge Reeds