Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18690/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 April 2017
On 24 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

UVAISUL GARNI POOVANMADATHIL
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Al-Arayn of Counsel instructed by Farani-Javid-Taylor Solicitors LLP
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of India born on 25 May 1985. He arrived in the United Kingdom on 29 October 2009 with entry clearance as a Tier 4 Student which was thereafter extended until it was curtailed with no right of appeal on 22 March 2012. The Appellant then made a number of applications for an EEA residence card as the spouse of an EEA national exercising treaty rights in the United Kingdom. The most recent application was made on 24 July 2014 but this application was refused on 11 May 2015. The appeal against this decision came before Judge of the First-tier Tribunal Chowdhury for hearing on 1 August 2016. In a decision and reasons promulgated on 19 October 2016 the judge dismissed the appeal.
2. The grounds in support of the application for permission to appeal to the Upper Tribunal provide firstly, that the judge erred materially in law in placing the burden of proving that the Appellant’s marriage was not a sham one upon the Appellant rather than upon the Respondent, in accordance with the principles set out in the case of Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 38 (IAC) at [12] of the determination.
3. The second ground asserted that the judge had erred at [14] of her decision in finding that the Appellant’s wife and Sponsor was not exercising treaty rights in the United Kingdom in that the judge failed to take account of material evidence: firstly, in the Respondent’s bundle at E1 to E4 which constituted evidence from his wife’s employer and payslips, the employer at that time being Taize Management Limited, who wrote on 18 June 2014 confirming that she was employed in the “17 Restaurant and Bar” in Notting Hill; secondly, in the Appellant’s bundle prepared for the appeal hearing, there was a letter from the Sponsor’s new employer at page 11, that is Staffline Group PLC, dated 28 July 2016 confirming that the Sponsor had begun employment at a Sainsburys distribution centre on 11 October 2015 and that she has an ongoing contract.
4. At the hearing before me, I heard submissions from Mr Al-Arayn on behalf of the Appellant and Mr Tarlow on behalf of the Respondent. Mr Tarlow sought to rely on the Rule 24 response dated 8 March 2017, however this does not address the first ground of appeal, namely whether the judge has misdirected herself in terms of the principles set out in Papajorgji (op cit). Mr Tarlow indicated, however, that he opposed this ground of appeal.
Decision
5. I find that the First-tier Tribunal Judge made material errors of law for the reasons set out in the grounds of appeal. At [9] of her decision under the heading ‘The burden and standard of proof’ the judge states “It is for the Appellant to establish that all relevant requirements of the Regulations can be met on a balance of probabilities, that is more likely than not.” At [12] under the heading ‘Findings and conclusions’ the judge states, “The suggested relevant factors for the assessment of sham marriages are set out in Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 38 (IAC)”. At [17] the judge stated:
“As per Papajorgji and the set of indicative criteria suggesting the possible intention to abuse the rights conferred by the Directive for the sole purpose of contravening national immigration laws, I take into account the fact that this couple are inconsistent about their respective personal details and important personal information concerning them.”
6. However, it is far from clear that despite referring to the decision of the Upper Tribunal in Papajorgji (op cit) a copy of which was handed up to the judge and is on the file, that she applied the principles set out therein i.e. that the burden of showing that the marriage was a sham marriage is upon the Respondent at the outset. In fact, it would appear from the judge’s reasoning that at all times she considered the burden of proof to be upon the Appellant. In particular, at [18] she found against the Appellant and his wife on the basis that their evidence as to when the Sponsor met the Appellant’s father varied and at [19] in relation to a visit by the Immigration Service to their home address she states:
“Why a self-contained flat would prevent other tenants seeing the couple at all coming and going from the flat is not immediately apparent. However it would have been a small matter for the appellant to have produced photographs of the said property in order to substantiate his claims”.
7. It is clear from this extract that the judge is placing the burden of proving that his marriage is not a sham marriage upon the Appellant, in requiring him to produce evidence to discharge that burden. Mr Al-Arayn drew my attention to the evidence submitted at the hearing by the Respondent, in particular an IS126 in relation to the visit by the Immigration Service to the home address on 6 March 2014, noting firstly, that it is clear from that document that this was a three minute visit, secondly, that it was not signed and thirdly, one of the occupants to whom the Immigration Service spoke confirmed that the Appellant does reside at the address with his wife but they only visited every three weeks because they have another property. It was submitted that this was insufficient for the Respondent to discharge the burden of proof and that in any event was not addressed at all by the judge in reaching her conclusion on this matter.
8. In relation to the second ground the judge at [14] states:
“I note that the EEA national has not provided payslips for her employment as at the date of hearing however did present bank statements showing regular payments from ‘T2’ which she states is one of her employers, 17 Restaurant. However I was not presented with any documentary evidence demonstrating the same. I do not find on the balance of probabilities that Ms Radu is in fact exercising her Treaty Rights in the UK by being in employment.”
9. As the second ground of appeal makes clear there was evidence before the judge in the form of letters from the Appellant’s current and former employers and payslips, to which I have made reference at [3] above, these were sufficient to discharge on the balance of probabilities that the Sponsor was exercising treaty rights.
10. It is the case that the judge found inconsistencies between the Appellant and his Sponsor and that there are issues of credibility in the case. However, for the reasons set out above, the correct application of the principles set out in Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 38 (IAC) and the failure to take account of material evidence in relation to the exercise of treaty rights by the Appellant’s EEA national spouse mean that the decision cannot stand.
11. I find material errors of law in the decision of First-tier Tribunal Judge Chowdhury. The appeal is remitted for a hearing de novo before a different First-tier Tribunal Judge.
12. No anonymity order is made.

Signed Rebecca Chapman Date 21st April 2017

Deputy Upper Tribunal Judge Chapman