Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19636/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
On 13 September 2016
On 22 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

YASIN SALEEM
(No Anonymity Direction Made)
Respondent

Representation:
For the Appellant: Ms M O'Brien, senior Home Office Presenting Officer
For the Respondent: Mr A Devlin (counsel) instructed by Maguire solicitors

DECISION and REASONS
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Secretary of State for the Home Department brings this appeal but in order to avoid confusion the parties are referred to as they were in the First-tier Tribunal. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Cox, promulgated on 7 March 2016, which allowed the Appellant's appeal.
Background
3. The Appellant was born on 22 June 1988 and is a national of Pakistan.
4. On 17 April 2015 the Appellant applied for a residence card as confirmation of a right to reside in the UK as the spouse of [FM], a Portuguese national.
5. On 19 May 2015 the Secretary of State refused the Appellant's application.
The Judge's Decision
6. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Cox ("the Judge") dismissed the appeal against the Respondent's decision.
7. Grounds of appeal were lodged and on 2 August 2016 Judge Saffer gave permission to appeal stating inter alia
"I am satisfied that it is arguable that the judge materially erred in law regarding the evidential burden of establishing whether it was a marriage of convenience. Rosa v SSHD [2016] EWCA Civ 14 and Papajorgii (EEA spouse -marriage of convenience) Greece [2012] UKUT 00038(IAC) state that if the Respondent produced evidence capable of suggesting that the marriage was not genuine, the evidential burden shifted to the applicant, not the burden was on the respondent."
The Hearing
8.(a) For the respondent, Ms O'Brien move the grounds of appeal. She told me that throughout the determination the Judge had failed to resolve conflicts of evidence. She took me to [25], [36] & [39] of the decision where, she told me, the Judge made inadequate findings in relation to cohabitation and failed to resolve conflicts which were evident when the chronology of claimed events was considered
(b) Ms O'Brien told me that the Judge placed undue weight on guidance issued by the EU commission for the conduct of interviews, and does not adequately considered the clear discrepancies between what was said by the appellant at interview and what is contained in the appellant's application form. She told me that a comparison of the information given in the application form and the answers given in an interview is sufficient to establish a suspicion that the appellant had entered into a marriage of convenience; that is enough to establish a prima facie case and to shift the burden of proof.
(c) Ms O'Brien told me that because the Judge had not properly considered the content of the interview, the decision is tainted by material errors of law. Those errors affect the primary findings of fact. She urged me to set the decision aside and to remit this case to the First-tier to be determined de novo.
9.(a) Mr Devlin, counsel for the appellant, reminded me that the definitions provided in the case of Papajorgji (EEA spouse - marriage of convenience) Greece [2012] UKUT 00038(IAC), before telling me that the decision does not contain any errors material or otherwise. He reminded me that the burden of establishing reasonable suspicion that a marriage of convenience has been entered into rests with the respondent and took me to [27] of the decision where, he told me, the Judge correctly directed himself in law before making his findings of fact.
(b) Mr Devlin took me through the Judge's findings of fact, explaining that between [28] and [35] the Judge clearly considers factors which weigh against the appellant before considering the factors which weigh in his favour. He told me that the Judge attached little weight to the interview for reasons which are sustainable in both fact and law, and referred me to both Oghonoghor v SSHD 1995 SLT 733 & Ki v SSHD 2000 SLT 249. He argued that the starting point is the weakness of the evidence produced to give rise to a suspicion that the appellant's marriage to an EEA national is not genuine.
(c) Mr Devlin told me that the decision is a carefully reasoned decision which contains no errors of law. He urged me to dismiss the appeal and let the decision stand.
Analysis
10. In Papajorgji (EEA spouse - marriage of convenience) Greece [2012] UKUT 00038(IAC) the Tribunal held that
"Although neither the Directive nor the Regulations define it, as a matter of ordinary parlance and the past experience of the UK's Immigration Rules and case law, a marriage of convenience in this context is a marriage contracted for the sole or decisive purpose of gaining admission to the host state. A durable marriage with children and co-habitation is quite inconsistent with such a definition."
11. In Rosa v SSHD [2016] 1 WLR 1206 it was held that the focus in relation to a marriage of convenience ought to be on the intention of the parties at the time the marriage was entered into, whereas the question of whether a marriage was subsisting looked to whether the marital relationship was a continuing one. Nonetheless, the First-Tier Tribunal was correct to look at the evidence concerning the relationship between the Claimant and the Sponsor after the marriage itself, since that was capable of casting light on their intention at the time of marriage.
12. The European Commission has produced a Handbook which defines a marriage of convenience as a marriage contracted for the predominant purpose of conferring a right of free movement and residence under EU law to a person who would otherwise not have such a right and explains that as 'sole purpose' is an autonomous EU law concept it is not to be interpreted literally as being the unique or exclusive purpose. There is no definition of' predominant' but the handbook indicates that the phrase is used because someone may have more than one abusive purpose (such as a tax advantage). The key is whether there is abuse.
13. Although not specific to EU law, section 55 of the Immigration Act 2014 states that there is a sham marriage if either, or both, of the parties is not a British citizen, a Swiss national or a national of an EU state; there is no genuine relationship between the parties to the marriage; and either or both of them enter in to the marriage for one or more of the following purposes (a) avoiding the effect of one or more provisions of the UK immigration law or rules (b) enabling a party to the marriage to obtain a right conferred by that law or rules to reside in the UK .
14. The grounds of appeal are set out in 13 numbered paragraphs. Paragraph 1 is a statement of the background to this appeal. Paragraphs 2 to 8 and really little more than an attempt to re-litigate what was before the First-tier. Rather than raising a point of law, those paragraphs are really a strident objection to the findings of facts of the Judge, and a declaration of an inability to accept that the Judge made those findings on the basis of the evidence placed before him.
15. Between [17] and [26] of the decision, the Judge sets out the background to the case and the appellant's immigration history. At [26] he records that the appellant and the EEA national have separated, but the appellant still hopes for reconciliation. The Judge's findings of fact are between [28], & [49] of the decision
16. The Judge does not unquestioningly accept what is said by the appellant. Instead, between [28] and [35] of the decision he discusses the aspects of the evidence which weigh against the appellant, before declaring at [35]
"I have treated the appellant's account of the relationship with caution."
17. It is then (with caution) that the Judge continues to consider the evidence placed before him, and for carefully considered reasons, decides that the interview record is not reliable evidence. Without a reliable record of interview, the Judge finds that the appellant cannot establish a reasonable suspicion that the appellant's marriage is not a genuine marriage.
18. Before embarking on that exercise, at [27] the Judge sets out a flawless self-direction taking guidance from the cases of Rosa V SSHD and Papajorgji (EEA spouse - marriage of convenience) Greece.
19. There is no error of law. The Judge has directed himself correctly. His fact-finding exercise cannot be criticized, notwithstanding what is said by the respondent in the grounds of appeal. In reality, the grounds of appeal are just a refusal to accept the conclusions to which the Judge came. Perhaps the author of the grounds of appeal would like the Judge to reach different conclusions on the same evidence, but that does not amount to a material error of law.
20. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that (i) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge; (ii) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.
21. There is nothing wrong with the Judge's fact finding exercise. In reality the grounds of appeal amount to little more than a disagreement with the way the Judge has applied the facts as he found them to be. The respondent might not like the conclusion that the Judge has come to, but that conclusion is the result of the correctly applied legal equation. The decision does not contain a material error of law.
22. The Judge's decision, when read as a whole, sets out findings that are sustainable and sufficiently detailed and based on cogent reasoning.
CONCLUSION
23. No errors of law have been established. The Judge's decision stands.
DECISION
24. The appeal is dismissed. The decision of the First-tier Tribunal stands.

Signed Date 20 September 2016

Deputy Upper Tribunal Judge Doyle