Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19853/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 January 2017
On 21 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

RAFIK OUTROUNE
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr. F. Khan, of Counsel, instructed by NWL Solicitors
For the Respondent: Ms. J. Isherwood, Home Office Presenting Officer

REMITTAL AND REASONS
Introduction and Background
1. The Appellant appeals against a decision of Judge of the First-tier Tribunal Wyman promulgated on 8 September 2016.
2. The Appellant is a citizen of Algeria born 3 April 1975 who applied on 2 October 2014 for a residence card as the spouse of an EEA national.
3. The application was made on the basis that the Appellant was married to, Fernanda Custodio, a Portuguese national. It was contended that the Appellant's spouse, to whom I shall refer as "the Sponsor", was exercising Treaty rights in the UK.
4. The application was refused on the 12 May 2015 essentially because the marriage was considered to be one of convenience contrary regulation 2 of The Immigration (European Economic Area) Regulations 2006 (hereafter "the 2006 Regulations").
5. The Appellant appealed to the First-tier Tribunal (IAC).
6. Judge Wyman decided the appeal following an oral hearing having heard evidence from the Appellant and Sponsor.
7. The Judge correctly identified the test and referred in particular to Agho v SSHD [2015] EWCA Civ 1198 and Papajorgi [2012] UKUT 00038. The Judge found a reasonable explanation had been put forth by the couple explaining why there were access problems to their property and for their absence when called upon by Immigration Officers on three occasions. There was satisfactory evidence before the Judge that the bell to the property was not working and that the Appellant and Sponsor were in any event at work on each occasion.
8. Nevertheless, the Judge noted that there was very little evidence of cohabitation. The Judge was surprised by the lack of documents either in joint names or in the Appellant's sole name. She noted the council tax bill was in the name of another and not the Appellant or his wife, and that the only documentary evidence confirming residence was a Thames Water bill in the name of the Sponsor identifying the Appellant only as an additional account holder. The Judge noted the absence of documents from various organisations and further noted the absence of a tenancy agreement for the previous property. The current tenancy agreement was in the name of another couple.
9. In respect of the oral evidence the Judge noted inconsistencies and this coupled with the lack of documentary evidence of their residence led her to conclude that this was a marriage of convenience.
10. The Appellant applied for permission to appeal to the Upper Tribunal. In summary, the grounds of application essentially argued that it was not open to the Judge to find that the Respondent had discharged the legal burden; disregarded material evidence and that her decision was inadequately reasoned.
11. Permission to appeal was granted by Designated First-tier Tribunal Judge Macdonald on 5 January 2017 who found it arguable that the Judge had erred in law for the reasons given in the grounds.
12. Directions were issued that there should be a hearing before the Upper Tribunal to ascertain whether the First-tier Tribunal had erred in law such that the decision should be set aside.
Decision on Error of Law
13. At the hearing both representatives made brief submissions at the end of which I reserved my decision which I now give with reasons.
14. In amplifying the Grounds of Appeal Mr Khan contended that in view of the Judge's acceptance that a reasonable explanation had been provided explaining the couple's absence and as to why Immigration Officers were unable to gain access to their property, the Respondent had failed to establish a prima facie case of reasonable suspicion indicating that the marriage was one of convenience and the Judge should have found so. There is no merit in that submission. As rightly pointed out by Ms Isherwood the Respondent's cause for suspicion was in addition based on the limited evidence of cohabitation provided with the application, which does not appear to have been disputed. The Judge was thus entitled to consider the evidence of cohabitation and her decision is not flawed as a consequence.
15. There are difficulties however with the Judge's approach to the evidence. There is no clear rejection of the evidence of the Appellant and Sponsor. The Judge impliedly rejects the entirety of their accounts noting inconsistencies in the evidence which are not spelt out in any detail. There is thus an absence of clear factual findings which should be prevalent particularly in a case of this kind.
16. There are particular difficulties with the Judge's consideration of the documentary evidence. While the Judge refers to the Thames Water bill as the only documentary evidence of the Appellant's residence at 346 Harrow Road [47], and the absence of an explanation as to why the tenancy agreement is in the name of Mr and Mrs Ramos; these conclusions are not factually correct. The Thames Water bill is for Flat E 346 Harrow Road. That address is confirmed in the letters of the respective employers of the Appellant and Sponsor and that evidence was accepted by the Judge at [45]. There is also a letter from Mr Ramos explaining in effect that he is the registered tenant of Flat E which he shares with the Appellant and Sponsor. The Judge's decision suggests that this documentary evidence has not been taken into account or, if it has, the Judge has not demonstrated that she has considered it and provided reasons as to why the evidence is to be rejected.
17. While I do not say that the decision ultimately reached by the Judge is wrong, the manner and process by which she reached her decision is materially flawed and cannot stand.
Decision
The decision of the First-tier Tribunal is set aside. No findings are to stand save for those at [37] to [45] of the Decision. Under section 12(2)(b)(i) of the 2007 Act and Practice Statement 7.2, the nature and extent of judicial fact finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal to be heard by a judge other than Judge Wyman.
Anonymity
No anonymity direction was made by the First-tier Tribunal. There has been no request for anonymity to the Upper Tribunal and I see no need to make an order.

Signed Date

Deputy Upper Tribunal Judge Bagral