Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18430/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 February 2017
On 9 March 2017

Before

UPPER TRIBUNAL JUDGE PITT

Between

muhammad munir bhatti
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Corben, instructed by Law Lane Solicitors
For the Respondent: Ms Z Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against the decision promulgated on 20 July 2016 of First-tier Tribunal Judge Lucas which refused the appellant’s application for a residence card as the spouse of an EEA national exercising Treaty rights in the UK.
2. The background to this matter is as follows. Mr Bhatti is a citizen of Pakistan, born on 29 July 1956. He does not dispute that he entered the UK illegally with the assistance of an agent. He maintains that this was in 2001. On 4 September 2009, he applied for a certificate of approval to marry a Czech national, Ms Ferencova. That application was refused on 13 May 2010. The appellant then applied for leave to remain outside the Immigration Rules on 10 February 2011. The respondent refused that application on 18 July 2011. On 20 July 2011, he was informed of his status as someone who had entered the country illegally. Mr Bhatti then made an application under Article 8 ECHR on 9 November 2011 which was unsuccessful. He then claimed asylum on 17 August 2012 but this was later withdrawn. The appellant then applied on 10 March 2014 for an EEA residence card on the basis of a relationship with Ms Niculae, a Romanian national. The application was refused and the appellant appealed. Prior to the appeal the respondent withdrew the decision and on 20 March 2015 interviewed the appellant and his wife. The application for an EEA residence card was again refused on 5 May 2015.
3. In the refusal decision dated 5 May 2015 the respondent found that the appellant and his spouse gave inconsistent evidence in their interviews on matters on which they could be expected to be consistent. The respondent concluded that the marriage to Ms Niculae was not genuine and that it was one of convenience “contracted purely to circumvent the United Kingdom Immigration Rules” and refused the application, with reference to Regulation 21B of the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”).
4. Judge Lucas also found that the marriage was one of convenience on the basis of the appellant’s immigration history ([34]-[37]), the couple’s respective language skills ([37]), the statements made in the interviews ([39]), a note of a visit by a fraud team ([40] and [42]), absence of supporting witnesses ([41] and [46]), the documentation of cohabitation attracting little weight ([43]-[44]) and little or no weight being placed on the evidence of a witness, Mr Farooq ([45]).
5. At the hearing before me, Mr Corben put forward three main grounds challenging the decision of First-tier Tribunal Judge Lucas. Firstly, it was maintained that the First-tier Tribunal applied an incorrect burden of proof in the decision and failed to follow the correct legal approach where there is an allegation of a marriage of convenience.
6. This submission focussed on what was said by First-tier Tribunal Judge Lucas at [32] and [33] of the decision, as follows:
“32. The burden of proof is upon the Appellant and the standard of proof is of the balance of probabilities. In relation to Human Rights, it is of a real risk of the relevant violation.
33. The Tribunal has carefully considered all that it had heard and read from and on behalf of the Appellant and concludes that he has failed to discharge the appropriate burden of proof upon any grounds. It concludes that this marriage is one of convenience entered into in order to circumvent or frustrate the Immigration Rules.”
7. These paragraphs would certainly appear to be a misdirection on the correct approach to an assessment of an allegation of a marriage of convenience. This is somewhat puzzling where the First-tier Tribunal judge had already referred to the case providing guidance on the correct approach at [2], that case being Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038(IAC).
8. In the context of this case, however, it was not clear to me that this point alone amounted to a material error. The ratio of Papajorgji is that there is no initial burden on an applicant to adduce evidence showing that a marriage is not one of convenience if the respondent brings nothing indicating to the contrary. The guidance in Papajorgji came about because in that case there was no adverse evidence about the marriage but the application was still refused for want of evidence positively showing that the marriage was genuine.
9. The circumstances of this appeal are different. Here, after interviewing the appellant and his partner, the respondent provided specific evidence in the refusal letter in support of her position that this was a marriage of convenience. It is unarguable that the respondent had grounds for her position and the appellant knew what those grounds were and that he had to respond to them. No reasonable decision maker could have concluded that there was no case to answer so material error arises from Judge Lucas failing to conduct that part of the assessment.
10. The next question that had to be asked is set out at [39] of Papajorgji:
“39. In summary, 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 this is a marriage of convenience’?”.
11. It is not clear to me that the substantive assessment conducted by Judge Lucas at [34]-[47] materially offended that approach even where the self-direction on the burden being on the appellant was in error.
12. However, the decision also discloses other errors as argued by which are material and which must lead to the decision being set aside and re-made. There is no dispute that the appellant applied only for a certificate of approval to marry Ms Ferencova in 2009 and did not apply for an EEA residence card or leave on the basis of his relationship with her. However, at [35], the First-tier Tribunal stated:
“It appears that he became involved in an arranged marriage application in 2009 to a Czech national. This resulted in an unsuccessful application to the Respondent in 2009. No Residence Card was granted at that time and the relied upon relationship simply disintegrated because “if the Home Office won’t give permission what is the point of staying together?” (as the Appellant stated in evidence before this Tribunal). A more clear example of a relationship designed to attempt to circumvent the Immigration Rules is difficult to envisage. The fact that the Appellant was prepared to adopt such an approach to his immigration status within the UK and with the background that he is here illegally is hardly a satisfactory basis for consideration of the credibility of the present claim. (my emphasis)”
13. The decision goes on at [37]:
“Given the background circumstances of the Appellant’s immigration history and his application in 2009, it is simply not regarded as credible that he was genuinely able to nurture and develop a meaningful relationship with the sponsor in this case.
14. These significant adverse credibility findings are founded on a mistake of fact as to the appellant having applied for status on the basis of “an arranged marriage” to Ms Ferencova and that application having been unsuccessful. As argued by Mr Corben, it is difficult to disentangle this mistaken adverse view of the appellant’s past actions from what is a holistic assessment of the genuineness of the current relationship.
15. Further, the First-tier Tribunal said this at [45] of the evidence of a witness, Mr Farooq, who attended the hearing:
“The Tribunal places little or no weight to corrected Witness Statements (sic) of Mr Farooq, though he has clearly done his best to assist the Appellant.”
16. Mr Farooq’s witness statement (at page 213 of the appellant’s bundle) stated that he had known the appellant for eight years, that he had attended the wedding and that the couple had been living together since then. His view was that the marriage was genuine and subsisting. At [27], the decision records that Mr Farooq’s evidence was adopted at the hearing and not subjected to challenge by the respondent. The oral and written evidence of Mr Farooq was potentially material. There is no reasoning at all, however, from the First-tier Tribunal as to why “little or no weight” was given to it.
17. There are clearly matters here that the appellant must address if he is to show that his marriage is genuine. It remains the case that this decision of the First-tier Tribunal erred in law and did so materially to the extent that the central finding that a marriage of convenience occurred must be set aside to be re-made. Where none of the findings stand, it is appropriate here for the matter to be remitted to the First-tier Tribunal for the assessment to be re-made de novo.
Notice of Decision
18. The decision of the First-tier Tribunal discloses an error on a point of law and is set aside to be remade.
19. The appeal is remitted to the First-tier Tribunal to be re-made de novo.

Signed Date 7 March 2017
Upper Tribunal Judge Pitt