Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/19889/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14th March 2017
On 11th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Mr IBRAHIM OLAKUNLE SHITTA-BEY
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Yeo (Counsel)
For the Respondent: Ms A Figiwala (HOPO)

DECISION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Metzer, promulgated on 1st August 2016, following a hearing at Taylor House on 19th July 2016. In the determination, the judge allowed the appeal of the Appellant, whereupon the Respondent Secretary of State, subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

The Appellant
2. The Appellant is a male, a citizen of Nigeria, who was born on 2nd August 1983. He appealed against the decision of the Respondent to refuse to grant him a residence card on the basis that it was claimed that his marriage was one of convenience under Regulation 20 and the card was revoked under Regulation 20(2) with reference to Regulation 2 of the Immigration (EEA) Regulations 2006. As the determination makes clear, the refusal related to Regulation 10(5) of the 2006 Regulations.
The Appellant’s Claim
3. The Appellant’s claim is that he arrived in the UK on 26th March 2005 after being granted a student visa to study a business management course at London Metropolitan University on 6th December 2004. He was then granted further extensions of stay. He then sponsored a visa application for his former wife Arinola, and they married on 2nd April 2008 in Lagos, Nigeria. She then joined him in the UK as a dependant and was granted leave to remain until 2009. The marriage ran into difficulties at a time when the Appellant had met a Joanna De Jesus Afonso, a citizen of Portugal, and as their relationship developed, the Appellant divorced Arinola on 4th March 2010. The Appellant married Ms Afonso on 8th December 2010, and by that stage he had been seeing Ms Afonso for about a year, and he then applied for a residence card shortly after his marriage.
The Judge’s Findings
4. The judge considered how there were a number of concerns in relation to the Appellant’s background which the Respondent Secretary of State had been concerned about in the refusal letter. For example, as the judge himself explained, the Appellant had an inadequate explanation for a passport found in his luggage for which he was convicted, and the judge considered this as something that may affect his credibility. The judge also had regard to an allegation that he committed a fraud regarding financial documents in 2009, but held that this “was not established and no evidence was present in the present proceedings”. Equally, the fact that there was an issue about his attendance at the former college did not have “any direct relevance and accept the Appellant’s assertion that he attended at the college and performed well”. It was also being suggested that there was an issue “concerning the alleged behaviour of his former wife at the airport on 26th February 2013”, but the judge held that “she did in fact attend the airport to collect the Appellant”.
5. Aside from this,
“Issues concerning the apparent visit to the Appellant’s address did not appear to be of direct relevance and it would appear that the police officers may well have attended the wrong address or were provided with the wrong information to a known individual”.
6. He finally accepted that there was inadequate explanation “as to why there are payments between his former second wife and former first wife given that he pays for child maintenance for his daughter” (see paragraph 17).
7. The judge went on to allow the appeal on the basis that there was no evidence provided by the Respondent Secretary of State that the Appellant’s marriage to Ms Afonso was a sham marriage although, “unfortunately it did break down but I find that it was a genuine marriage for a number of years” (paragraph 18). He also held that the parties had resided for at least one year during the duration of the marriage in the UK and the marriage had lasted for at least three years (see paragraph 19).
Grounds of Application
8. The grounds of application state that the judge misdirected himself in allowing the appeal because he did not deal with where the EEA national was at the date of the termination and prior to the termination of the marriage. He did not deal with whether the EEA national resided in the UK for one year of the marriage. He also did not deal with whether the EEA national was a qualified person, particularly at the date of divorce, for the Appellant to retain a right to residence.
9. A Rule 24 response was entered by the Appellant’s representative, Mr C Yeo, dated 9th March 2017, where it is said that,
“The reasons given in the determination are clear and coherent and the Appellant does understand why the outcome was reached: because the burden of proof lay on the Appellant and she failed to prove the assertions in her reasons for refusal letter. The Appellant did not send a representative to attend the hearing and there was therefore no cross-examination of the Respondent and no further evidence than that served in the Appellant’s bundle was presented” (see paragraph 3).
The Hearing
10. At the hearing before me on 13th March 2017, Ms Figiwala, appearing on behalf of the Respondent, stated that the judge was wrong to say that the Appellant’s wife had attended upon the Appellant at the airport to collect him and that the Appellant’s witness statement itself (at paragraph 14) confirms this. At this stage Mr Yeo interrupted to say that this was simply not correct because if one looks at paragraph 14 (at page 6) it is clear that the Appellant states that, “the next day however I was taken to hospital with chest pains and she came to the Immigration Service at Heathrow”.
11. Second, Ms Figiwala submitted that the judge was wrong to state that apart from the alleged passport fraud there were no other issues because the refusal letter shows there to be a whole host of issues (at page 3 of 6), and whilst it was accepted that there was no Home Office Presenting Officer in attendance, the judge should have grappled with these issues quite simply because they were set out in the refusal letter. To this, Mr Yeo immediately replied that the judge did deal with these other issues at paragraph 17 of his determination but concluded, as it was open to him to conclude, that they “did not appear to be of direct relevance” to the issue of sham marriage that was being alleged by the Respondent Secretary of State.
12. Third, the refusal letter had referred to the fact that the Appellant’s Nigerian wife was found to be living at his address, and forged documents were used for admission to the college, and he was encountered at Heathrow Airport, and yet none of these issues were grappled with by the judge. Moreover, she gave biodata (see page 2 of 6 at the fifth paragraph) where it is said that, “further enquiries were made with your wife to confirm her identity and she gave the details given on the biodata of your claimed Sponsor”. Mr Yeo interrupted to say that this was quite irrelevant to the issue of sham marriages that was being considered here.
13. Finally, Ms Figiwala submitted that the judge did not consider the approach in Papajorgji, which she was required to do in cases of this kind.
14. For his part, Mr Yeo submitted that it was a matter of concern to him that this appeared to be a case where the person drafting the grounds of application did not have access to the file below of the judge, such as to be able to take a proper note of the proceedings there. There were a number of allegations being made now in the grounds of application that were completely unsustainable, and which would not have been taken as a proper point to take, had access been had to the file of the proceedings. Ms Figiwala openly admitted that she would have to concede that it was she who had drafted the grounds of application and did not have access to the file of proceedings below.
15. Mr Yeo went on to say that the judge did take the approach outlined in Papajorgji at paragraph 18 of the determination, where he concluded that some issues had a direct bearing on the central issue but other issues did not, and it could not be concluded that this was a sham marriage on the basis of the evidence before the Tribunal. He also drew my attention to his skeleton argument at the hearing before, where it is clear that a whole number of allegations are made, but hardly any of them are properly backed up, and such matters as the Sponsor speaking with an accent, such that it was considered to be suspicious, are entirely preposterous in relation to a claim of a sham marriage, given that the Appellant had married a woman of Portuguese descent.
16. This was a case where there was copious evidence both of cohabitation and of the Appellant’s residence in the UK. For example, there is no evidence that the Appellant’s Nigerian wife was found at the address the Appellant claimed to be sharing with the EEA national. The fact that the Appellant’s Nigerian wife had given the biodata of the EEA national is not borne out by the evidence submitted. The judge did accept that the Appellant satisfied Regulation 10 and he was entitled to do so. It was simply not true that the Appellant had not been in the UK for one year of his marriage and three years of married life because there is evidence from pages 49 to 556, especially at page 295, which shows cohabitation, and there is ample employment evidence.
17. It is also not true that the EEA national was not a qualified person because there is evidence of P60s and detailed evidence from pages 49 to 157 of the bundle to the contrary. There was, submitted Mr Yeo, “overwhelming evidence” to the contrary and these allegations were completely unsustainable. They were drawn very largely from matters set out at section E of the Respondent’s bundle, and in particular E1 and E3, “the latter being a note of the Immigration Officer”.
18. Whilst it is true that these notes fulfil some purpose, there was no way of checking whether the summary was accurate, and these kind of notes have limited value given that the evidence at E5 is not evidence in the normal sense, and upon enquiry, the allegations simply disappear, because they are not backed up by proper proof. This was a case where the judge had (at paragraphs 2 to 14 of the determination) perfectly adequately dealt with the evidence before him and come to his findings in a proper manner, such as any affected person would be in a position to understand the nature of such decision making.
No Error of Law
19. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and re-make the decision. My reasons are as follows. First, this was a case where the judge did not have the benefit of a Home Office Presenting Officer in attendance, and whilst that does not absolve the decision maker from having proper regard to the issues and evidence before him, this did mean that the Appellant could not be cross-examined on matters on which he might well have been, with the result that the Appellant gave his own evidence, and that evidence, when considered against the issues raised against him, the judge found to be compelling, as against the evidence (or the lack of) from the side of the Respondent Secretary of State.
20. It is not true that the judge did not have regard to the issues set out in the refusal letter (see page 3 of 6 where they are set out in bullet points) because he does at paragraph 17 give proper regard to this and concludes that they are not directly relevant to the issue of a sham marriage.
21. As Mr Yeo submitted, many of these matters go back several years, such as the issue of a passport found in his luggage, or the issue of financial documents in 2009, and have no direct bearing on the credibility of the marriage entered into by the Appellant and the Sponsor in this case. The judge also held that it was entirely possible for the police officers to have attended upon the wrong address (and were provided with the wrong information).
22. Second, and even more importantly, the fact is that there was copious evidence in the substantial bundle running into 555 pages of the Appellant, which confirms the exercise of treaty rights by the former wife Ms Afonso in terms of P60s from 2011 to 2016, a letter from the employer, pay slips from 2010 to 2013, and a PAYE coding notice running from 2013 to 2017. These confirm that treaty rights were being exercised (at pages 49 to 157).
23. Similarly, there was ample evidence of the Appellant’s own employment in the UK in the form of P60 documents from 2012 to 2016, pay slips from 2011 to 2016, bank statements from 2014 to 2015, and letters from employers (see pages 158 to 294).
24. Finally, there was significant evidence of cohabitation in the form of a joint life insurance policy dated 19th September 2014 (page 295), a letter from NEST dated 6th August 2014 (page 296 to 297), and a polling card of the Appellant’s former spouse (page 299). In all the circumstances, the determination of Judge Metzer is clear, concise, and to the point and there is no discernible error of law in it. Ms Figiwala has rightly conceded that she drafted the grounds of application without having access to the full file of the proceedings below, and a number of matters have been raised which could not be sustained.
Notice of Decision
25. There is no material error of law in the original judge’s decision. The determination shall stand.
26. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 7th April 2017