Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20483/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 February 2017
On 17 February 2017

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

Aishat Seyi Sanni
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms A Sobande, of OA Solicitors
For the Respondent: Mr S Staunton, Senior Presenting Officer

DECISION AND REASONS
(Decision given orally)
Introduction
1. This is an appeal, brought with the permission of First-tier Tribunal Judge Hollingworth, against a decision of First-tier Tribunal Judge Majid ("the FtT") who dismissed the appellant's appeal against a decision made by the Secretary of State for the Home Department ("SSHD") on 15 May 2015 refusing to issue the appellant with an EEA residence card.
2. At the heart of the SSHD's decision is her conclusion that appellant engaged in a marriage of convenience which has the consequence of it not being treated as a marriage for the purposes of the 2006 EEA Regulations.
FtT's Decision
3. The FtT's conclusions are found in their entirety in paragraphs 5 to 7 of its decision, which read:
"5. I relied on the reasons of the Respondent in the Refusal letter and draw the appropriate inference from the omission of the Appellant to arrange any representative to attend the hearing and dismiss the appeal. The absence of the Appellant cannot be justified give (sic) the fact that the papers revealed that she was supposed to return to Nigeria after completing her education. I was also concerned about the arrangement of the marriage in Nigeria - there was no need for her to effectuate a 'proxy' marriage there. Naturally she would have had to answer these objections had she decided to come to the hearing.
6. I cannot ignore the relevant legal provisions of the Immigration (European Economic Area) Regulations 2006 (as amended). Without cogent rebutting evidence on various issues this appeal cannot succeed particularly when there were serious controversies highlighted by the Respondent.
7. Accordingly, bearing in mind that the burden of proof is on the Appellant, I find the Respondent's decision to be sound in law and it stands."
Decision and Reasons
4. At the hearing Mr Staunton did no more than rely upon the SSHD's rule 24 response, in which it was submitted that: (i) the FtT properly directed itself; (ii) the appellant was put on notice that the SSHD did not accept that the marriage was genuine; and, (iii) the appellant chose not to attend the hearing before the FtT and therefore did not put herself in a position to be cross-examined.
5. Despite the submissions made in the rule 24 response, I have no hesitation in concluding that the FtT's decision must be set aside - it being riddled with significant and material errors. I will set out just a few:
(a) The FtT erred in directing itself to the relevant burden and standard of proof. The appropriate burden and standard of proof is that set out by the Court of Appeal in its decisions in Agho v The Secretary of State for the Home Department [2015] EWCA Civ 1198 and Rosa v The Secretary of State for the Home Department [2016] EWCA Civ 14;
(b) The FtT erred in law in drawing an adverse inference from the fact the appellant was not legally represented before it;
(c) The FtT erred in law in taking into account the fact that the appellant could have travelled to Nigeria to undertake a marriage, rather than remain in the UK and undertake a proxy marriage. This was not a point taken by the SSHD in the refusal letter and it has never been put to the appellant;
(d) The FtT failed to analyse, or even mention, the 97 pages of evidence produced to it by the appellant. Its reasoning is, as a consequence, unlawfully deficient.
6. For these reasons I set aside FtT's decision. Given the nature an extent of the fact finding which is still to be undertaken I remit the matter back to the First-tier Tribunal for the decision under appeal to be re-made by a judge other than Judge Majid. Mr Staunton indicated that the SSHD does not intend to take issue with the lawfulness of the proxy marriage and, consequently, this is not a point which the FtT is required to consider.
Notice of Decision

For the reasons given above, the decision of the FtT is set aside. The appeal is remitted to the FtT to re-make the decision under appeal.

Signed:

Upper Tribunal Judge O'Connor