(Immigration and Asylum Chamber) Appeal Number: IA/16713/2015
THE IMMIGRATION ACTS
Heard at Bradford
Decision & Reasons Promulgated
On 27th July 2016
On 8th August 2016
DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR
saleem ur rehman
(ANONYMITY DIRECTION NOT MADE)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: no appearance
For the Respondent: Mrs R Petterson, Home Office Presenting Officer
DECISION AND REASONS
1. This is the appellant's appeal against the decision of Judge Saffer made following a hearing at Bradford on 16th October 2015.
2. The appellant is a national of Pakistan. He appealed against the respondent's decision of 10th April 2015 to refuse to issue him an EEA residence card as the spouse of a Slovakian EEA national exercising treaty rights here. The respondent believed both that this was a marriage of convenience and that the EEA national spouse was not exercising treaty rights. The judge was satisfied that Zuzana Kostenikova was a qualified person but he dismissed the appeal because he was satisfied that this was indeed a marriage of convenience.
3. Mrs Petterson, for the respondent, accepted that the judge had erred in his decision.
Findings and Conclusions
4. The judge placed weight on the fact that the appellant had not been truthful in relation to his studies. There were three previous decisions, that this was a marriage of convenience, made on 1st October 2012, 27th November 2012 and 18th March 2013 and he said that they should not be displaced by the fact that the couple now had a child "given his continued dishonesty".
5. The decision is set aside.
6. The judge said at paragraph 4
"IS (marriages of convenience) Serbia  UKAIT 31 establishes only that there is an evidential burden on the claimant to address evidence justifying reasonable suspicion that the marriage is entered into for the predominant purpose of securing residence rights."
7. It appears that the judge did not apply the correct test. In Papajorgji (EEA spouse - marriage of convenience) Greece  UKUT 00038 (IAC) the then President of the Tribunal set out the law to be applied and, at paragraph 14, wrote as follows
"The United Kingdom has taken measures to prevent parties to a marriage of convenience from taking advantage of the Citizens' Directive by providing in the Immigration (EEA) Regulations 2006 Regulation 21 that 'spouse does not include a party to a marriage of convenience.' No definition is given of marriage of convenience but that phrase has been construed in the context of the Immigration Rules as a marriage entered into without the intention of matrimonial cohabitation and for the primary reason of securing admission to the country. The minister appears to have applied this approach when introducing the Immigration (EEA) Order 1994 that preceded the 2006 Regulations (see Macdonald's Immigration Law and Practice 8th Edition 2010 at 7.100). Even on this approach intent to cohabit as man and wife is inconsistent with a marriage of convenience."
8. In simply citting the second part of the definition i.e. the primary reason of securing admission to the country and not the first, without the intention of matrimonial cohabitation, the judge misapplied the law.
9. In this case there was clear evidence that the couple had cohabited in that they have a child.
10. Furthermore the judge tested the appellant's claim to have learned a little Slovakian by asking him at random a number of different words which he appears to have answered correctly. The appellant could not possibly have rehearsed the answers. The clear inference is that he has significant verbal contact with his wife.
11. Finally, as Mrs Petterson readily acknowledged, the appellant has consistently claimed that his was a genuine marriage which appears to have stood the test of time. She was happy for me to reverse the decision.
Notice of Decision
The original judge erred in law and his decision is set aside. The following decision is substituted. The appellant's appeal is allowed.
No anonymity direction is made.
Signed Date 7 August 2016
Upper Tribunal Judge Taylor