Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18762/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 January 2017
On 28 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

mr awais nadeem
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Maqsood, Counsel (Instructed on a Public Access Basis)
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant appeals with permission against the decision of First-tier Tribunal Judge James following a hearing at Hatton Cross on 13th July 2016. The original hearing had concerned an appeal against the Respondent’s refusal to issue a residence card as a dependent family member of a European Economic Area national exercising her treaty rights under the Immigration EEA Regulations 2006. When permission to appeal was granted by First-tier Tribunal Judge Hollingworth he set out in some detail why he was of the view that it was appropriate to grant permission. Indeed, a copy of that decision should be attached to this decision because it comprehensively sets out the various factors and matters.

2. There has been a detailed hearing before me today. Mr Maqsood did not appear at the First-tier Tribunal, one Mr Talacchi a legal representative did. The legal representatives assisting the Appellant at that time were “New Era Immigration Services” Ltd of 151 Upper Tooting Road. When Mr Talacchi filled out his Section 84 Notice and provided it to the Tribunal he did not tick a box as to the nature of his qualification to appear before the Tribunal namely where he was counsel, a solicitor or otherwise. Similarly, the reverse of the Section 84 Notice was not complete although he stated he was in another court. He was also asked on that form how many witnesses there were to be in addition to the Appellant. That was not completed. That is regrettable because the issue of witnesses is a very important part of the grounds of appeal before me today.

3. In summary, the judge did not believe the Appellant or his claimed wife that they really were in a genuine and subsisting marriage or relationship. The judge set out in some detail that he thought that to use the colloquial “the wool was being pulled over the eyes” of the Secretary of State and indeed of the Tribunal.

4. The judge was astounded that the Appellant and his claimed wife were not even able to get right what they were doing the day before that hearing. Did they go out to the cinema in the evening to watch a crime film at around 8pm or did they go and watch a comedy after 11.30pm? Did they know where they got married and what happened at that marriage? How many people were living with them in their particular accommodation? I have to say it leaves a lot to be desired in terms of the way in which the Appellant’s case was presented.

5. That being said, via detailed submissions today it is said that there are aspects of the judge’s findings which do not stand up to scrutiny. I shall return to those. The aspect of the grounds of appeal which deal with the witness relates to one Mr Umair. In relation to him it is said in the grounds of appeal at Ground 4,

“The First-tier Tribunal Judge did not call the other witness Mr Arshad Umair who was presented in the Tribunal and was waiting outside of the court to be called in for oral witness, in the decision the judge in paragraph 19 stated as the witness failed to attend the court to adopt his statement his gave little weight to his witness statement” [sic].

6. The presentation of what happened with Mr Umair leaves a lot to be desired and I have every sympathy for what Ms Isherwood has been submitting today. She says that there is no statement from the legal representative who appeared on behalf of the Appellant at the hearing to confirm what is claimed in the grounds. Nor was there a witness statement from the instructing solicitor. Indeed, there is no witness statement from Mr Umair himself to confirm he was at court and nor is there a witness statement from the Appellant to say that Mr Umair was outside the court. But in any event what he said is even if the witness had been at court, it was not for the judge to call witnesses. It was up to the Appellant through his legal representatives to present his case. As I say that, is an impeccable submission by Ms Isherwood.

7. When Judge Hollingworth granted permission he specifically said at paragraph 1

“The comprehensive Record of Proceedings made by the judge does not refer to there being no further witnesses. An arguable error of law has arisen on the footing that a witness has not been called ...”.

8. I have searched through the Tribunal’s file today and unfortunately the Record of Proceedings is not available and I am not able to check that point for myself. It appears that Judge Hollingworth did see that report of proceedings. I am not assisted much by the Appellant’s side today because they have not been able to set out what transpired during that hearing by way of witness statements. Ms Isherwood very helpfully has obtained a minute of the hearing from the Presenting Officer with a surname “Mogbeyi” and it is recorded there, “... App present plus EEA spouse and extra witness”. The point being that it was not the further fourth witness who was to be called. It was just the Appellant, his claimed spouse, the witness who did give evidence and nobody else. Again, I have to say as I indicated during the discussion today, it makes me very suspicious in terms of the Appellant’s case.

9. Ultimately, however and having taken Mr Maqsood to task in relation to his submissions I am concerned about the findings which the judge has made. In my judgment although the judge clearly spent a considerable amount of time going through the various discrepancies and the various issues and even though there are perhaps just a handful of matters which can be challenged forensically by the Appellant they are matters which are of some significance. By way of example the judge said under the sub-heading of “religion” at page 7 of his decision “The Appellant who is a Muslim claimed that his wife was a Christian and that she did not practise, whereas the wife said she was a lapsed Catholic”. I have to say I agree with Mr Maqsood that this is not a discrepancy whereas the judge prefaced his decision at paragraph 15 by saying that he was going to set out the discrepancies. The Judge took this into account as being one of the discrepancies which led to a dismissal of the appeal. In my judgment there is no discernible difference between a Christian who did not practise and a lapsed Catholic. Of course this was evidence given through interpreters. It adds to the Appellant’s argument that it was wrong to make an adverse finding.

10. There then followed reference at paragraph 23 to the various working hours and working locations of the Appellant’s wife. I have to say at first blush I did not really see the difference between whether or not the Appellant’s wife worked at “Pizza Hut” or “Napoli Pizza” but the point being the judge’s view was that there was a difference in terms of the evidence which had been provided but forensic careful analysis shows that in fact there was not. It is said in addition that insofar as issues in respect of children is concerned that on the one hand the judge had said at paragraph 18 that there were contradictory views in relation to children but the fact that the Appellant’s wife had had an abortion on 6th January did not affect the credibility of the Appellant. In essence, it was submitted on behalf of the Appellant that the tenor of their evidence was consistent namely that the couple did not want children at this stage in their lives. Again on its own that would not be a significant issue.

11. I return then to Mr Umair and whether he may or may not have been at court. I have hesitated long about him but in the end noting what was said by Judge Hollingworth and noting what Mr Maqsood as a member of the Bar assures me, namely that his clear and strict instructions from his lay client are that Mr Umair was present at the hearing and noting the basis upon which permission was granted, I am just prepared to accept that it is likely that Mr Umair was present at the hearing. Therefore, a procedural error arises by the findings which were made by the judge within his determination which dealt with Mr Umair and which criticise him for failing to attend the hearing. This was particularly at paragraphs 19 and 20 of the decision. As I say there is a real possibility in my mind that the failure to call Mr Umair was that of the Appellant’s legal representatives alone but in the circumstances I am prepared to give the benefit of the doubt to the Appellant.

12. Where does it leave the judge’s decision? In my judgment against my first thoughts, I conclude that the errors which have been shown to have been made are significant. They are errors of fact and there is the procedural error in respect of the fourth witness. There is a real likelihood that there would an injustice if the matter was left without a re-hearing.

13. Accordingly, I conclude for the purposes of the Court of Appeal’s decision in R (Iran) that there is a sufficient basis in this case to enable me to conclude that there is a material error of law.

14. I make it clear that whichever judge re-hears this matter that he or she should have before them the witness statements as they currently stand from the Appellant and his claimed wife namely the statement of the Appellant which appears in the current bundle at pages 1 to 4 dated 30th June 2016 and the witness statement at pages 5 to 10 of the current bundle from the Appellant’s claimed wife also dated 30th June 2016. As to the location of the further hearing, in my judgment the appropriate place for that is at the First-tier Tribunal. The only direction I give is in respect of interpreters. There was a Polish interpreter and so one will be required for the re-hearng.

15. In the circumstances, I find that there is a material error of law.

DECISION

The decision of the First-tier Tribunal Judge is set aside in its entirety. The case will be re-heard as a de novo hearing at the First-tier Tribunal at Hatton Cross by any First-tier Tribunal Judge other than First-tier Tribunal Judge James.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Mahmood