Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18997/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Sent
On 14 March 2013
On 03 June 2013

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

PIRZADA PIRZADA
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Not represented
For the Respondent: Ms A. Holmes, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Pakistan, born on 20 March 1984. On 10 March 2012 he applied for a residence card as confirmation of a right of residence as the spouse of an EEA national. That application was refused in a decision dated 1 August 2012. The appellant's appeal against that decision was dismissed by First-tier Tribunal Judge Oakley after a hearing on 16 October 2012. Permission to appeal having been granted, the appeal came before me.
2. The application was refused by the Secretary of State on the basis that the appellant's marriage was one of convenience. The First-tier judge concluded that the marriage was indeed a marriage of convenience and dismissed the appeal under the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations") and under Article 8 ECHR. Neither the appellant's wife nor the witnesses who made statements appeared at the hearing before Judge Oakley.
3. At the hearing before me I asked the appellant if his wife was at the hearing. He said that she was not. He said that he did not know where she was and that they had had some arguments on 19 December 2012 and that she had left his home.
4. Ms Holmes submitted to me that there was no indication that the First-tier judge applied too high a standard of proof. Even if he had, the facts were such that it could have made no difference to the outcome of the appeal. The appellant's spouse did not appear at the hearing and neither did the witnesses. Weak reasons had been given for his wife’s non-attendance.
5. The appellant told me that his wife is no longer with him as a result of arguments which are the fault of the UKBA. In the appeal before the First-tier Tribunal his wife had signed the statement dated 3 September 2012 that he presented. He had told the judge that she had a fever, cough and cold, as well as period pains, although he had no evidence to support this. You would not go to the doctor for a cough and cold. The judge had referred to him as a chemistry researcher rather than a physics researcher which is what he is. He is not sure that the judge looked at his documents correctly.
6. The UKBA had said that they had visited him at their previous home on 15 March but they had left that home on 1 March (2011). They did not visit his next home. On 4 November 2012 his wife invited his parents to the UK and she sent documents to them. When they came here the UKBA stopped them at the airport for the whole night over 8 hours. They said that “he” had TB and he spent £500 on tests but they were still sent back.
7. After that the UKBA contacted his wife over and over again asking embarrassing questions. She asked him why they were asking questions about their living together and if she had sex with him. She was crying. They were living very happily and he did not know why UKBA kept refusing. As a result of this they separated. She blamed him and his parents. He is still trying to speak to her.
8. I asked the appellant why his wife was unable to attend what was an important hearing before the First-tier Tribunal. He said that it was very cold that day. He stopped her from coming and told her that she should stay at home. He does not have knowledge of the law and the hearing was in his name only.
9. Ms Holmes questioned whether the letter dated 3 September 2012 was before Judge Oakley. She again pointed out that his wife did not appear and there was no satisfactory explanation for her failure to do so. The judge was entitled to find as he did. The appellant had not appealed the previous refusals.
10. The appellant replied that he had not previously appealed because he did not have a representative and he thought that there was nothing in his case that could be arranged before a court.
My assessment
11. In this case, in order to qualify for a residence card the appellant must establish that he is the family member of an EEA national exercising Treaty rights. A family member includes a spouse but according to Regulation 2 of the EEA Regulations, a spouse does not include a party to a marriage of convenience. That is what is, and was, in issue in these proceedings.
12. There is no burden of proof on the appellant in the first instance to establish that his is not a marriage of convenience. However, once there is evidence justifying a reasonable suspicion that the marriage is one of convenience, there is an evidential burden on the appellant to address that evidence (see Papajorgi (EEA spouse-marriage of convenience) Greece [2012] UKUT 00038 (IAC)).
13. Judge Oakley accepted at [19] that there are documents which show the appellant and his wife at their then address. It appears from the determination that he also accepted that there was documentary evidence in their names at a previous address (Cecil Road, Plaistow).
14. However, he stated in his determination at [20] and [23] that there is no statement from the appellant's partner. The appellant referred me to a letter dated 3 September 2012 which his wife signed. Ms Holmes wondered whether that letter was before the First-tier Tribunal. I am satisfied that it was. It is on the Tribunal file attached with a staple to two letters from witnesses which the judge referred to at [14]; a Mr Hassan and a Miss Farroukh. The letter of 3 September 2012 appears to be written by the appellant but also bears a signature in the name of Mrs Toma Traupyte. The letter refers to the genuineness of their marriage.
15. I am satisfied that the judge was therefore wrong to state that there was no written statement from the appellant's wife. There was. It was a joint statement.
16. However, the letter dated 25 October 2012 bearing a signature in the name of the appellant's wife post-dates the hearing before the First-tier Tribunal. In the circumstances of this appeal, it could not be said to have been an error of law for the judge to fail to take into account evidence that was not before him.
17. Notwithstanding that the judge was wrong to find that there was no written evidence from the appellant's wife, he was entitled to take into account the fact that she did not attend the hearing. He was similarly entitled to conclude that a satisfactory explanation had not been given for why she did not attend, the appellant having said that she had a cough and cold. This was plainly an important hearing and set against the background of the previous refusals of applications for a residence card, including on the basis that the relationship was not genuine, as was asserted by the Secretary of State in connection with this application, the First-tier judge made no error in taking into account her failure to attend. It is also to be recognised that the appellant is an intelligent, educated individual whom it is reasonable to conclude would have appreciated the significance of his wife attending.
18. Similarly, although there were two letters supporting the suggestion that the marriage was not one of convenience, neither of the authors of the letters attended. Again, this was a matter that the judge was entitled to take into account.
19. It is worth noting that in the letter dated 25 October 2012 supporting the appeal to the Upper Tribunal, the appellant's wife stated that she feels “depression and stress in appearing in courts related matters and can cause serious impacts on my personal life.” She did not mention that she did not attend the first tier hearing for the reasons the appellant gave to Judge Oakley. Before me an additional reason for her non-attendance was given by the appellant, namely that she had period pains.
20. Judge Oakley did not make any explicit reference to the burden or standard of proof. At [21] he stated that “this may well be merely a marriage of convenience.” At [26] he gave a firmer conclusion, stating that he agreed with the respondent that it was a marriage of convenience “without further evidence to the contrary”, and referring to Regulation 2 which he stated “has not been met”.
21. Whilst the judge's exposition of the legal framework in this respect lacks clarity, he sufficiently identifies the fact that once the issue of the marriage being one of convenience is raised by evidence, it is for the appellant to address that evidence. There was evidence in the Secretary of State’s reasons for refusal letter to raise the issue.
22. There is what appears to be an aberration in the determination at [27] where the judge stated that he found that the respondent’s decision is not in accordance with the law “and the applicable immigration rules”. That is plainly an error, resulting no doubt from a less than thorough proof-reading process but it does not affect the overall integrity of the determination.
23. Although the appellant told me that he and his wife are no longer living together, I do not consider that relevant, one way or another, to whether there is any error of law in the decision of the First-tier Tribunal on the marriage of convenience issue, or any that requires the decision to be set aside.
24. I am not satisfied that there is an error of law in the decision of the First-tier Tribunal in relation to the EEA Regulations or in relation to Article 8 ECHR.
Decision
25. The decision of the First-tier Tribunal did not involve the making of an error on a point of law. The decision of the First-tier Tribunal to dismiss the appeal therefore stands.

Upper Tribunal Judge Kopieczek
30/05/13