Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18604/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1st February 2016
On 7th April 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

mr Olumide Olusola Adeeko
(ANONYMITY DIRECTION not made)

Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms W Bremang (Counsel)
For the Respondent: Mr L Tarlow (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. The appellant's appeal against decisions to refuse to vary his leave and to remove him was dismissed by First-tier Tribunal Judge Kimnell ("the judge") in a decision promulgated on 15th May 2015. In December 2013, he applied for further leave under the partner route in Appendix FM to the Immigration Rules ("the rules"). In making the adverse decisions, the Secretary of State drew attention to inconsistencies which emerged in the accounts given by the appellant and his sponsor, following a marriage interview held on 25th March 2014.

2. The Secretary of State concluded that the appellant had not shown that his relationship with his sponsor was genuine and subsisting and so he did not meet the requirements of paragraph E-LTRP.1.7. of Appendix FM. She went on to find that the appellant had not provided evidence that he had achieved a qualification in English to level A1 of the Common European Framework of reference for languages, although he had in fact provided a life in the UK test certificate.

3. The judge noted that although the Secretary of State had not produced a record of the interview held with the appellant and his sponsor she had, nonetheless, identified eighteen discrepancies in their accounts, leading to the conclusion that the relationship was not genuine. The appellant appeared before the First-tier Tribunal in person and gave oral evidence. The respondent was not represented. The sponsor did not appear, the appellant explaining that she suffered from schizophrenia.

4. The judge observed that the appellant did not dispute the discrepancies identified in the Secretary of State's decision letter. In his evidence, the appellant asserted that some were minor and said that his wife had told the interviewer that she was not good at remembering things. The judge noted that there was no proper diagnosis of the sponsor or medical opinion about how her condition might affect her memory. There was no supporting evidence explaining the sponsor's absence from the hearing, although the appellant submitted a medical certificate showing that she was assessed as unfit for work on 26th November 2013, the period of unfitness lasting until 26th January 2014. The hearing took place on 8th May 2015.

5. The judge summarised some of the discrepancies recorded by the Secretary of State in her decision letter, found that the absence of the sponsor had not been properly explained or justified and concluded that the appellant had failed to show that his marriage was genuine and subsisting. He was satisfied that the language requirements of the rules were met, in the light of a certificate produced by the appellant. He found that Article 8 was not engaged in the light of his adverse finding regarding the marriage but, in any event, there was no obstacle to family life continuing abroad. It was not unreasonable to expect the appellant and his sponsor to continue their family life in Nigeria.

6. Permission to appeal was sought on the basis that the judge erred in law in proceeding to decide the appeal as he had. The appellant's sponsor was unavailable due to illness. The absence of the record of interview was significant and an assessment without it was flawed.

7. Permission to appeal was refused by a First-tier Tribunal Judge but granted, following renewal of the application, by an Upper Tribunal Judge, on the basis that it was arguable that procedural unfairness had occurred in relation to the absence of the sponsor and in the light of Miah [2014] UKUT 00515.

Submissions on Error of Law

8. Ms Bremang said that the judge erred by excluding relevant evidence, in the form of the marriage interview. Taking into account the absence of the sponsor, the transcript of the interview carried more weight. If she were unable to attend, through illness, the genuineness of the marriage could not be properly tested without the full interview record. This would reveal the extent of consistent answers, not merely those assessed by the Secretary of State and the judge as discrepant answers.

9. The judge accepted that some of the discrepancies contained in the decision letter were minor but, without the transcript, the extent of consistent answers was simply not known. Ms Bremang said that the sponsor was still unwell. The evidence before the judge consisted of a medical certificate showing that she had been unable to work.

10. Mr Tarlow relied on the rule 24 response. The judge was entitled to conclude that the appellant had failed to discharge the burden of proof. The medical certificate showing the sponsor's unfitness for work came to an end in January 2014 and the hearing was over a year later. There was nothing further by way of evidence. Paragraph 19 of the decision dealt with the discrepancies. Although it was true that a full interview record was not before the Tribunal, the judge had access to the summary which appeared in the Secretary of State's decision letter. The judge concluded that some discrepancies were minor and some were significant and it was up to him to weigh the evidence before him. There was nothing unreasoned or perverse in the judge's assessment or conclusions.

11. In a brief discussion, Ms Bremang said that the First-tier Tribunal would be the appropriate venue for remaking the decision, if an error were found, so that the full evidence could be weighed by a First-tier Tribunal Judge. Mr Tarlow inclined to the view that the Upper Tribunal should retain the case.

Conclusion on Error of Law

12. The decision has been prepared by a very experienced judge and it bears all the hallmarks of concision, fluency and a common sense, pragmatic approach. The judge drew attention to 18 points which led the Secretary of State to conclude that the marriage was not genuine, listed in the decision letter.

13. In that letter, the discrepancies are described as arising from the marriage interview. Mr Tarlow accepted that the record of the interview itself was not before the Tribunal.

14. The President of the Upper Tribunal gave guidance in September 2014 in Miah (interviewer's comments: disclosure: fairness) [2014] UKUT 00515. The Upper Tribunal held that the Secretary of State's decision making process includes a process whereby comments, or opinions, of an interviewing officer are conveyed to the decision maker. In the generality of cases, this practice does not contaminate the fairness of the decision making process. However, the document enshrining the interviewer's comments, form ICV.4605, must be disclosed as a matter of course. An appellant's right to a fair hearing dictates this course.

15. The Secretary of State's decision letter, dated 9th April 2014, appears on a different template, ICD.3050. The document containing the interviewer's comments was not before the Tribunal. At paragraph 13 of the Upper Tribunal decision in Miah, the President drew attention to the need to ensure that the essential elements of the case against an appellant are put to him.

16. In the present appeal, the Secretary of State's decision letter contained a list of discrepancies but without the interview record itself or a full summary, it is impossible to put those discrepancies into context. Unknown at present is the total number of questions and the nature of any consistent answers given. Importantly, the judge noted the appellant's oral evidence that his sponsor explained at her interview that she was not good at remembering things and receives treatment in the form of tablets. The decision letter bears on this aspect of the case. In the list of bullet points on the second page of the letter, the decision maker has recorded that the sponsor claimed to suffer from schizophrenia and said she was on medication and had a key worker. That reflects in part what the appellant told the judge in evidence but not completely so. The interview transcript would have enabled the judge to test his claim that the sponsor expressly said that she was not good at remembering things. If the transcript does indeed support this claim, that might bear on the assessment of the discrepancies which emerged.

17. The reasoning of the judge shows that he gave substantial weight to the discrepancies, other than those which were minor. He was entitled to draw attention to the absence of medical evidence regarding the diagnosis of schizophrenia and any effect on the sponsor's memory. Nonetheless, without the interview record or at least a full summary of it, part of the essential factual context was missing.

18. The Secretary of State failed to provide a representative but the Tribunal had available broad case management powers, in rule 4 of the 2014 Procedure Rules, to adjourn the hearing for a short while, require production of the interview record and give the appellant, acting in person at the time, a further opportunity to obtain relevant medical evidence.

19. For these reasons, and largely in the light of guidance given in Miah, I conclude that there has been procedural unfairness and that the First-tier Tribunal's assessment was made without all the relevant evidence being before it. The decision of the First-tier Tribunal is set aside and must be remade.

20. So far as venue is concerned, there will need to be extensive fact-finding in the light of the interview record and, perhaps, medical evidence. The appropriate venue is the First-tier Tribunal.

Notice of Decision

21. The decision of the First-tier Tribunal, containing a material error of law, is set aside. It will be remade in the First-tier Tribunal, at Hatton Cross, before a judge other than First-tier Tribunal Judge Kimnell.

Signed Date

Deputy Upper Tribunal Judge R C Campbell

ANONYMITY

There has been no application for anonymity and I make no direction on this occasion.

Signed Date

Deputy Upper Tribunal Judge R C Campbell