Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17748/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 December 2016
On 6 December 2016

Before

UPPER TRIBUNAL JUDGE PITT

Between

Shafi [A]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

Secretary of State FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Unigwe, Counsel instructed by Primarc Solicitors
For the Respondent: Ms A Fijiwala, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against the decision promulgated on 18 July 2016 of First-tier Tribunal Judge Sweet which refused an appeal for leave to remain as a partner under Appendix FM of the Immigration Rules.
2. The ground put forward for the appellant was relatively narrow. In the refusal letter dated 27 April 2015 the respondent found that a number of answers given in the marriage interviews conducted on 2 April 2015 did not "demonstrate the level of familiarity of mutual awareness that we would expect from a genuinely married couple."
3. That was the respondent's case before the First-tier Tribunal at the hearing on 18 July 2016 and so the case which the appellant came prepared to argue. He maintained in his grounds that the respondent's conclusion was incorrect and provided statements from himself and his partner, cohabitation documents and other documents in support of his case; see [4] and [8].
4. The appellant attended the hearing but his partner did not. As the determination shows at [9] he explained that she was taking her three children to school. When asked in cross-examination about the partner not attending he had not thought it was important for her to attend and school was important; see [11]. Counsel for the appellant indicated as part of his submission that it was not a requirement for the wife to attend; see [16].
5. The First-tier Tribunal judge did not accept the respondent's view of the responses provided in the marriage interivew, finding at [19] that:
"I accept the submissions put forward on behalf of the appellant that the alleged discrepancies referred to in the refusal letter are not material discrepancies. For example, it is understandable that the appellant would not know the mortgage payments that his spouse is paying (question 20), nor do I consider that the replies as to how the engagement took place (question 4) and who were present at the wedding (question 6) show any significant discrepancies. As the respondent did not provide the full interview record, which the appellant estimated lasted for about two hours, it is possible that the seven questions to which the respondent referred are small in number compared to the overall number of questions put at interivew. I do not think that the replies listed by the respondent show that there were discrepancies which would go to the genuineness of the relationship."
6. The respondent's prima facie case was rejected, therefore. As above, the First-tier Tribunal judge had other evidence before him by way of the written statements attesting to the genuine nature of the relationship, oral evidence of the appellant and documents showing the couple living at the same address from 2014 onwards and having joint names on utility bills. No adverse findings were made on those documents. The First-tier Tribunal therefore appeared to find the marriage interviews supported the appellant's case of being in a genuine relationship and does not indicate that anything in the documentary evidence indicated otherwise.
7. However, at [19], the non-appearance of the spouse was found to be a sole and sufficient to show the relationship was not genuine. That finding does not indicate that the weight to be attributed to the non-appearance was assessed against the otherwise entirely positive evidence on the relationship. It does not indicate what the First-tier Tribunal made of the reason given for the partner not appearing, taking the children to school. It does not indicate what the judge made of the appellant stating that he did not think it was important and his representative stating that her appearance was not a requirement. It does not appear that any consideration was given to adjourning until later in the day or another day for the partner to attend where the judge found that this issue arising only on the day of the hearing was a matter such materiality that it was capable of outweighing the otherwise positive evidence.
8. In my judgement, the approach taken to issue of the partner's non-attendance was not correct. The finding was reached without any assessment against the otherwise entirely positive evidence which undermines its rationality. Also, the First-tier Tribunal could have indicated prior to reserving the decision that this was potentially a sole and sufficient reason for finding the relationship not genuine even though the interview and other evidence supported the appellant's case thus affording the appellant's representative the opportunity to consider whether to apply for an adjournment for the partner to attend. For what it is worth, the partner attended the hearing before me.
9. For those reasons I found that the decision of the First-tier Tribunal disclosed an error on a point of law and that the decision should be set aside to be re-made.
10. It was also my conclusion that this error required the appeal to be remitted to the First-tier Tribunal. The positive findings on the marriage interviews could not be sustained where the partner's evidence might have allowed for a different outcome and so there were no findings that could be preserved. I therefore concluded that the re-making should take place in the First-tier Tribunal in line with paragraph 7 of Part 3 of the Senior President's Practice Statement dated 25 September 2012

Notice of Decision
The decision of the First-tier Tribunal discloses an error on a point of law and is set aside.
The appeal will be re-made de novo in the First-tier Tribunal.

Signed Date: 5 December 2016
Upper Tribunal Judge Pitt