Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20947/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 23 December 2016
On 8 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

BALWINDER SINGH
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Iqbal, Counsel instructed by Visa Expert Ltd
For the Respondent: Ms A Brocklesby-Weller, Senior Home Office Presenting Officer

DECISION ON ERROR OF LAW

Background to the Appeal and Issues under appeal

1. This is an appeal against the decision, promulgated on 10 March 2016, of First-tier Tribunal Judge Solly (hereinafter referred to as the FTTJ).
2. The Appellant is a national of India. He married and subsequently divorced an EEA national. He sought a Permanent Residence Card (PRC) on the basis that he had retained a right of residence following his divorce. In refusing his application on 18 May 2015, the Secretary of State concluded that the Appellant was a party to a marriage of convenience, owing to the responses he gave during an interview on 7 May 2015. Further, it was said that there was insufficient evidence of the former spouse's economic activity in the UK. She thereby refused to issue a PRC and a decision was made to revoke the Appellant's Residence Card which was valid until 14 January 2016. The Appellant duly appealed to the First-tier Tribunal.
The Decision of the FFTJ
3. The FTTJ heard oral evidence from the Appellant. She set out the applicable regulations pursuant to the Immigration (European Economic Area) Regulations 2006, and made reference to relevant case law including Papajorgi [2012] UKUT 00038. The FFTJ considered the responses provided by the Appellant at interview and his written and oral testimony and concluded that he demonstrably lacked knowledge of his former spouse's circumstances, such that, she did "not consider there was a real marriage between the sponsor and the appellant" [35]. Further, the FFTJ was not satisfied that the former spouse was exercising Treaty rights between 14 May 2009 and 5 April 2010 due to a gap in the evidence covering that period.
The Grounds of Application and Permission to Appeal
4. The grounds of application argue: (i) that the FTTJ misdirected herself in law in failing to recognise that the legal burden of proving the marriage was one of convenience rested on the Respondent, and the evidential burden had not been discharged and; (ii) the FTTJ wrongly found that there was a gap in the evidence in respect of the former spouse's employment.
5. Permission to appeal was granted by Upper Tribunal Judge Storey on 14 November 2016.
6. The Respondent filed and served a Rule 24 reply inviting the Tribunal to uphold the FTTJ's decision.
Error of Law
7. At the hearing I heard brief submissions from both representatives following which I announced my decision that I was satisfied that the FFTJ erred in law. My reasons are as follows.
8. Ground 1 argues that the FTTJ erred in her application of the burden of proof. There is no dispute between the parties that when the Respondent asserts that the marriage is one of convenience that she bears the legal burden of proof (see: Rosa [2016] EWCA Civ 14 upholding the Upper Tribunal's approach in Papajorgji (supra)).
9. While the FTTJ referred to Papajorgji and stated at [12] that the evidential burden fell on the Appellant once there were grounds for reasonable suspicion that the marriage is one of convenience, she does not set out in a clear and structured way why the evidence adduced by the Respondent was sufficient grounds for reasonable suspicion, and nor does she direct herself either at this stage or later in her decision that the legal burden rests on the Respondent. I thus agree with Ms Brocklesby-Weller that the FFTJ's decision lacks structure, but it also lacks the necessary clarity required in a case of this kind. To say, as the FFTJ did at [8] that the "burden of proof is generally upon the appellant to establish the facts he relies on, proving his case on the balance of probabilities and I judge the evidence as at the date of hearing" clearly misstates the burden and cannot stand.
10. Ground 2, which asserts that the FTTJ's conclusion that the Appellant's former spouse was not exercising Treaty rights between May 2009-April 2010 at [36], is also made out as rightly conceded by Ms Brocklesby-Weller. There was some financial evidence before the FTTJ relating to that period in the form of HMRC self-assessment return forms. In view of this evidence the reasoning at [36] was in plain error.
11. The FFTJ thus materially erred in law and her decision is set aside.
Decision

12. The decision of the First-tier Tribunal is set aside. No findings are to stand. 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 FTTJ Solly.

13. There is no justification for making an anonymity direction in this matter.

Signed: Date:

Deputy Upper Tribunal Judge Bagral