Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18829/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 13 June 2013
On 18 June 2013

Before

UPPER TRIBUNAL JUDGE MOULDEN

Between

MR BOLAJI LUKEMAN AJIBOWO
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Ofei Kwatia of counsel instructed by Harrison Morgan solicitors
For the Respondent: Ms J Isherwood a Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Nigeria who was born on 17 July 1972. He claims that his wife and sponsor is a citizen of the Netherlands. He has been given permission to appeal the determination of First-Tier Tribunal Judge T R P Hollingworth who dismissed his appeal against the respondent's decision of 7 August 2012 to refuse to issue him with a residence card confirming his right of residence as the spouse of an EEA national exercising treaty rights in the United Kingdom pursuant to the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations").

2. The respondent refused the application made on 8 March 2012. In summary the respondent did not accept that the claimant's marriage was valid or subsisting. The marriage certificate was not a reliable document. The appellant's and the sponsor's claimed proxy marriage did not satisfy Ghanaian law. The appellant was Nigerian and his claimed spouse Dutch. They had failed to establish how any of their parents were of Ghanaian descent. Registration of the marriage had not been completed in time.

3. The appellant submitted an appeal to the First-Tier Tribunal accompanied by grounds of appeal couched in the broadest of terms. These also raised Article 8 human rights grounds. Inexplicably, the appellant asked for the appeal to be decided on the papers. This is what the judge did, on 19 October 2012. He found that the appellant had not entered into a valid customary marriage in accordance with Ghanaian law and had not established that he was in a genuine or subsisting marriage with his sponsor. He concluded that the appellant's application did not meet the requirements of the 2006 Regulations and that it was hard to see how the appellant could succeed on Article 8 human rights grounds in the light of the conclusion that he was not in a genuine and subsisting marriage. On the way to reaching these conclusions the judge found that the appellant had been in the UK for approximately 10 years unlawfully and had no valid basis for remaining, there was no evidence that the appellant and the sponsor had children, no evidence that they had been cohabiting, had visited each other's countries of nationality, that the sponsor had met the appellant's family or what arrangements had been made in relation to the marriage ceremony. The marriage certificate was flawed by obvious inexplicable factors.

4. In paragraph 17 of the determination the judge said; "There are a large number of questions I would have wanted to have put, not only to the appellant, but his sponsor also in the event that an oral hearing had been requested. Settlement applications such as these are almost always best disposed of by oral hearing." I agree. However, this was the appellant's choice.

5. The judge dismissed the appeal under the 2006 Regulations and on human rights grounds. The appellant sought permission to appeal, which was refused by a judge in the First-Tier Tribunal. On renewal to the Upper Tribunal permission was granted without any reference to any arguable error of law on the basis that "the Tribunal is about to hear cases involving customary marriage by proxy, the formalities which have to be complied with, their subsequent registration and their validity in the United Kingdom." I am aware, as were the representatives, that such cases are part heard. It is not clear when the determination and guidance will be available. I was not asked to adjourn this appeal pending such a determination and I see no need to do so.

6. The appellant attended the hearing before me accompanied by a woman who, I am told, is his wife and sponsor. On 7 June 2013 the appellant's solicitors submitted a bundle of documents running to 57 pages. I am told that most of this is new material which was not before the judge. I am also told that the judge had a 22 page bundle. These accords with what the judge said in paragraph 9. I have this bundle which was on the Tribunal file. I was also provided with the determination in NA (customary marriage and divorce – evidence) Ghana [2009] UKAIT 00009 and the UKBA paper "customary marriages and divorce/proxy marriages contracted in Ghana" dated 17 January 2012 which I will refer to as the Ralon report. Both representatives accepted that neither NA nor the Ralon report were before the judge, although the Ralon report is referred to in the reasons for refusal letter. Counsel also tendered a document which she said was part of the Immigration Directorate Instructions (IDIs). However there was nothing on the face of this to indicate what it was, when it was dated, where it came from, when any provisions came into force or whether they were still in force. I decline to accept such an unclear document which, in any event, was not before the judge.

7. I am unable to accept counsel's submission that the judge strayed outside the ambit of the reasons for refusal. Whilst the main thrust of the refusal letter dated 17 July 1972 was directed to the validity of the Ghanaian marriage the respondent also called into question the existence of the marriage or any relationship between the appellant and the sponsor. The respondent also brought into question the appellant’s immigration status by the reference to his having "no alternative basis of stay in the United Kingdom".

8. It is common ground that the judge was not provided with the Ralon report. In the circumstances and in the absence of any submissions to the contrary, he was entitled to accept that its content and effect was as the respondent claimed.

9. It is easy with hindsight and in the light of the material now submitted which was not before the judge to say that he should have adjourned of his own motion in order to obtain further evidence or information. I find that in the light of what was before him and the appellant's decision to ask for the appeal to be determined on the papers there was no good reason to him to do so.

10. I can find no-fault with the judge's reference to regulation 2 of the 2006 Regulations. Regulation 2 provides the definitions referred to in regulation 7 and they need to be read together. Whilst the judge should have referred to a marriage of convenience rather than a genuine and subsisting marital relationship in the context of this appeal this is not a material error of law. The judge's primary conclusion was that the appellant and the sponsor had not established that they were married. Furthermore he did not accept that they had established the existence any relationship between them.

11. I find that on the evidence before him the judge was entitled to reach his conclusions and there is no error of law. I uphold the determination.

………………………………………
Signed Date 14 June 2013
Upper Tribunal Judge Moulden