Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18558/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 November 2016
On 7 December 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

Chinwe Uzoka
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr E Waheed of Counsel, instructed by Greenland Lawyers LLP (London)
For the Respondent: Mr S Whitwell, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Nigeria born on 13 December 1972. She appeals a decision of the Secretary of State on 30 April 2015 refusing to issue her with a residence card under Regulation 17 of the Immigration (European Economic Area) Regulations 2006. The appellant had arrived in this country on 15 March 2013 and had married an Irish national, Mr James Martin, on 14 June 2013. There were two applications for residence cards, on 26 June and 18 November 2013. Both were unsuccessful. The application giving rise to the appeal proceedings herein was made on 31 December 2014.

2. The respondent refused the application on 30 April 2015. The respondent found that the appellant's marriage was one of convenience and declined to issue a residence card. The appellant had entered the UK illegally and had married her sponsor within three months of arrival. No evidence of cohabitation had been provided. There were no photographs.

3. The respondent also concluded that the appellant's spouse was not a qualified person. Although registered blind and no longer employed it was not the case that blind people as a rule were incapable of any type of employment. A consultant's letter should have been provided.

4. The appellant appealed and her appeal came before a First-tier Judge on 9 May 2016. The appellant was then represented by Mr D Balroop, of Counsel.

5. The judge correctly addressed himself to the burden and standard of proof where allegations that a marriage was one of convenience were made by the Secretary of State. In submissions the respondent's representative submitted that the appellant had entered the United Kingdom illegally and there was no evidence of lawful entry and no passport in evidence.

6. It was the appellant's case that she had met Mr Martin while visiting the UK in 2012.

7. The judge started his consideration of the evidence by noting the respondent's position about the appellant's entry to the United Kingdom:

"23. I find that the respondent has no record of lawful entry. The appellant has produced no passport, expired or current. No passport number of [sic] stated in the application form, and no details have been forthcoming from her as to the issuance of any visa or the whereabouts of any passport. The mere fact that previous EEA applications have been made does not in and of itself show that a valid passport was submitted indicating lawful entry. In the light of the foregoing, I do not accept the appellant's oral evidence that she entered on a multi-entry visit visa.

24. I find that in light of the evidence, the respondent has shown that the appellant did not enter the United Kingdom lawfully.

25. In turn, I find that the respondent is able to rely on this as undermining the overall credibility of the appellant's intentions in coming to this country. She did not have leave to enter or remain, or any other basis of remaining in the United Kingdom. She was in need of obtaining some form of status in this country."

8. While accepting that the appellant had married Mr Martin on 14 June 2013 the judge observes "the marriage occurred very shortly after the appellant's arrival".

9. The judge then notes the absence of cohabitation and the absence of supportive evidence of communications between the parties prior to the appellant's arrival in March 2013. This was an obvious matter of concern "given the speed of the marriage following what appeared to have been a short relationship." The judge then reviewed the evidence of cohabitation and agreed with the position taken by the Secretary of State and identified inconsistencies and clear discrepancies in the evidence about a claimed reconciliation. The judge did not accept that the appellant had been staying with Mr Martin at weekends. He found it established that the marriage was one of convenience. The judge concluded that he was of the view that the appellant was the party who drove through events "with the sole or decisive motivation to obtain status in the United Kingdom. Mr Martin's evidence has in material aspects been unreliable. However, that does not mean he has been wholly dishonest throughout." He did not accept that the parties were in a durable relationship but he did conclude that he accepted that Mr Martin had ceased activity as a worker because of permanent incapacity. He sets out his reasons in paragraphs 49 to 53 of the decision although he observes that the finding made no difference to the outcome of the appellant's appeal. He dismissed the appeal.

10. Grounds of appeal were settled by Counsel (Mr Balroop). Counsel referred to Agho v Secretary of State [2015] EWCA Civ 1198. He cited an extract from paragraph 13 of that decision:

"What it comes down to is that as a matter of principle a spouse establishes a prima facie case that he or she is a family member of an EEA national by providing the marriage certificate and the spouse's passport; that the legal burden is on the Secretary of State to show that any marriage thus proved is a marriage of convenience; and that that burden is not discharged merely by showing 'reasonable suspicion'. Of course in the usual way the evidential burden may shift to the applicant by proof of facts which justify the inference that the marriage is not genuine, and the facts giving rise to the inference may include a failure to answer a request for documentary proof of the genuineness of the marriage where grounds for suspicion have been raised. Although, as I say, the point was not argued before us, that approach seems to me to be correct..."

11. Counsel points out that the First-tier Judge failed to make findings on the appellant's oral evidence corroborated by the sponsor to the effect that she had visited the UK in 2012 for six months and had met and started the relationship with Mr Martin during that time. She had returned to Nigeria in December 2012 before her leave expired and returned to the United Kingdom on the visit visa in March 2013. Mr Martin had proposed because he did not want to return to Nigeria and the parties had married in June 2013. Counsel points out that the appellant was adamant that her visas and entry stamps were in her passport, which was in the possession of the Secretary of State. The passport was not in the Presenting Officer's file at court. The Secretary of State and the Tribunal had focused on the issue of illegal entry and marriage within three months. It was unfair to make findings against the appellant in the absence of evidence that was held by the Secretary of State. If the passport confirmed the visit in 2012 and the entry in 2013 the respondent would not have discharged the evidential burden and there would be no basis to assert that the marriage was one of convenience. The sponsor's letters to the Secretary of State confirmed that there had been a marriage with problems rather than a sham marriage or marriage of convenience. Further points were taken with the judge's approach to the evidence.

12. On 3 November 2016 a Rule 24 response was filed. This makes no mention of the passport issue.

13. Before me it was accepted by Mr Whitwell that the Home Office did have the appellant's passport in safe storage. I was given a photocopy of the first page of the appellant's expired passport issued in February 2011 and expiring in February 2016.

14. He said that the appellant's representatives had made a subject access request. The appellant had been granted a multi-entry visit visa on 2 July 2008 for five years which would cover the period when she entered the UK on 15 March 2013. Mr Waheed helpfully provided the bundle that had been produced which includes the copy of the appellant's visa covering that period. On that visa the appellant's previous passport number was given and I was also provided with a photocopy of that.

15. Mr Whitwell submitted that a point had been taken that there had been no record of the appellant's arrival and this had not featured as a discrete ground of appeal. It did not appear that the witness statements had addressed the issue. It was only oral evidence. He did accept that if it was correct that there was a visit visa it would be unusual for a person to enter illegally. Mr Whitwell pointed to the wealth of evidence before the judge to support the judge's findings that the marriage was one of convenience.

16. Mr Waheed relied on the grounds of appeal and the evidence that he had put in.

17. The respondent's decision focused on the allegation that the appellant had entered the UK illegally and had married Mr Martin three months after entry.

18. As appears from the paragraphs of the determination that I have made reference to above, this was a point which also was given emphasis by the First-tier Judge. He did not accept the appellant's evidence that she had entered on a multi-entry visit visa. Further the respondent was able to rely on this matter "as undermining the overall credibility of the appellant's intentions in coming to this country."

19. Mr Whitwell sought to argue that the remaining points taken by the judge were more than sufficient in the circumstances to vindicate his conclusions, putting aside the question of the passport and multi-entry visit visa.

20. As I said at the hearing, I do not accept that the determination can safely be upheld as the findings about the passport were very much at the forefront and affected the overall credibility assessment.

21. In granting permission to appeal the First-tier Tribunal had noted that the judge had placed great weight on the fact that the respondent had no record of lawful entry and the failure of the appellant to produce her passport. In granting permission the judge observed that it did not appear that any records available to the Presenting Officer were checked either. Despite Mr Whitwell's reliance on the remaining findings made by the judge I am not of the view that the central point relied on by the judge was fairly arrived at given that it is now accepted that the Secretary of State had the appellant's passport all the time and that there was in fact a multi-entry visit visa covering the period when the appellant arrived.

22. A further point is that this multi-entry visa would have covered the period in 2012 when the appellant says she came to the United Kingdom and met Mr Martin and the relationship commenced.

23. The judge appears to have made no direct findings on this evidence.

24. Unfortunately the passport itself is still not available. An examination of that document may or not assist the appellant. However, if she did indeed visit the United Kingdom in 2012 as claimed there may be stamps on the passport to confirm that. In any event it would appear that during that period she had a valid visa.

25. I note that the respondent's response did not deal with the question of the passport. Despite Mr Whitwell's submissions I am not of the view that the judge's findings can safely be upheld. It is clear that a fresh hearing on the facts is required. The matter must be remitted to the First-tier Tribunal in the light of the fact that I have identified a material error of law in the factual assessment. The respondent must undertake to equip the Tribunal at the fresh hearing with the appellant's passport.

26. The judge did go briefly into the issue of Mr Martin's status for the sake of completeness although it was not material to his decision given his findings on the marriage of convenience issue. As it was clear that the appeal was to be remitted Mr Waheed did not seek to make submissions on this matter. It was submitted in the response that the assessment was not sufficiently reasoned and had not dealt with the issues raised in the refusal letter and it was not clear how Mr Martin had acquired permanent residence.

27. It may be that the First-tier Judge put his conclusions on this matter in a short compass because this aspect of his determination made no difference to the outcome of the appeal.

28. For the reasons I have given the determination of the First-tier Judge was affected by a material error of law and the appropriate course in this case is to direct a fresh hearing on all issues (including the issue of Mr Martin's status) before the First-tier Tribunal by a different First-tier Judge.

Appeal allowed and remitted for a fresh hearing

ANONYMITY ORDER

Anonymity order not made.

TO THE RESPONDENT
FEE AWARD

The First-tier Judge made no fee award. It would be premature to make one at this stage in all the circumstances.

Signed Date

G Warr, Judge of the Upper Tribunal 7 December 2016