Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19745/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 January 2017
On 08 March 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

MEHMOOD ASIF
(anonymity direction not made)
Respondent
Representation:
For the Appellant: Ms A Fijiwala, Home Office Presenting Officer
For the Respondent: No appearance
DECISION AND REASONS
1. There was no appearance by the respondent today. He has been given proper notice at the address most recently notified to the Tribunal. It was convenient to call on the case at very approximately half past twelve. There had been plenty of time for him to have offered an explanation if there was some good reason why he could not attend this hearing, such as a travel problem, and I decided it was right to go ahead in his absence.
2. This is an appeal by the Secretary of State against the decision of the First-tier Tribunal allowing the appeal of the Respondent, hereinafter “the claimant”, against the decision of the Secretary of State on 27 April 2015 to revoke his residence card. The reasons for revoking the residence card are quite straightforward. Essentially, the Secretary of State was satisfied that the marriage the claimant relied upon, being a marriage to an EEA national, was a sham marriage.
3. The case has an unfortunate history which I do not think it helpful to explain in any great detail. There was a decision by the First-tier Tribunal to the effect that the decision was not in accordance with the law and the decision was remade. It was the remaking of that decision that led to the decision of 25th April 2015 that is the decision of the Secretary of State that is in dispute.
4. The case was then tried before the First-tier Tribunal and again, apparently, allowed and the Secretary of State appealed successfully and there was a rehearing although I do not have before me any decision of the Upper Tribunal giving the reasons for that decision or indeed confirming that that is what happened. I can only describe this as an irritating omission.
5. However I do have the decision of the First-tier Tribunal in August 2016 which is the decision that is criticised. I have to say I find the judge’s decision rather surprising.
6. The essential allegation made by the Secretary of State is that the claimant relied on his marriage to a person identified as Monika Sztojka and supported the application with a copy of that person’s identity card. It came to the attention of the authorities that there were photographs of the claimant’s wedding and the person who is identified as the claimant’s wife in the wedding photographs is not the person who appears on the identity card. This was explained in a report by a Detective Constable Bolger and apparently seems to have been accepted by the First-tier Tribunal Judge. The judge said at paragraph 22:
“Having read the report of DC Bolger I find that this is not a case of a marriage of convenience but a sham marriage perpetrated on a large scale. I find, from the report of DC Bolger that this is part of a commercial enterprise and the non-EEA party to the marriage would have, no doubt, been paid a significant amount of money to participate in the marriage.”
7. I am a little puzzled to work out how the judge moved from there to allow the appeal. There is a hint at paragraph 23 where the judge agreed with an earlier finding of the Tribunal that the statement of DC Bolger was lacking in detail and does not show how he reached the conclusions. I do not see why that troubled the judge when he was asking himself if there was a prima facie case. It has been accepted throughout that the burden is on the Secretary of State because she has made an allegation that the claimant acted dishonestly and thereby justified her decision to revoke. There is perfectly clear evidence of a kind the police officer is likely to be able to write, about namely that the person on the identity card does not look like the person in the wedding photographs, and there really is no reason to go behind that decision unless, extraordinarily, some good reason is advanced by the appellant. If any such reason was advanced it is not considered in the judge’s decision.
8. It follows that I simply do not understand why the judge allowed the appeal and I set aside the decision because the finding is perverse because it is either so badly explained or, as I suspect is the case, because it is incapable of proper explanation.
9. I then have to decide what next to do.
10. Ms Fijiwala applied to serve further evidence. She made reference to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and these are Rules permitting the Upper Tribunal to make an order prohibiting the disclosure or publication of certain documents or the identity of a person who should not be identified. These Rules particularly provide under Rule 14(3)(b) that the Upper Tribunal may decide whether the document should be disclosed to the second party or should be the subject of a direction under paragraph 2 to the effect that disclosure should be prohibited. I have to be satisfied before making such an order that it would be likely to cause serious harm if I did not make the order.
11. It is perfectly plain from what has been disclosed by DC Bolger there is a concern that there is an element of trafficking in this case and I take judicial note that people involved in trafficking can be very dangerous criminals. All I intend to say is that I have been shown documents which support completely the summary position given by DC Bolger. It follows therefore that I have no hesitation in saying that the prima facie case is well and truly established.
12. I have read the statement provided by the appellant and find it unsatisfactory. All he can do is say that he and his alleged wife spent some time living together and he gives some documents that give some weight to that claim but the time of the cohabitation covered by those documents is only in the order of two months and does not begin to address the core problem in the case, namely that the person in the wedding photographs is not the person in the identity document relied upon in support of his case. Whether the claimant would have done any better if he had attended and been cross-examined I do not know but the evidence as far as it goes does nothing to dislodge the highly damaging effect of the Secretary of State’s evidence.
13. It follows therefore that having set aside the decision of the First-tier Tribunal I reminded myself that it is common ground the burden is on the Secretary of State. I am quite satisfied that this is a case where the Secretary of State has proved on the balance of probability (and in fact to a rather higher standard although that is not necessary) that the marriage relied on was not a genuine marriage and that that was a proper reason for revoking the residence card and I dismiss the claimant’s appeal against the decision of the Secretary of State.
Notice of Decision
The Secretary of State’s appeal is allowed. I set aside the decision of the First-tier Tribunal and I substitute a decision dismissing the claimant’s appeal against the Secretary of State’s decision.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 7 March 2017