IA/20950/2014
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The decision
IAC-AH-LEM-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20950/2014
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reason Promulgated
On 2nd December 2014
On 29th December 2014
Before
DEPUTY UPPER TRIBUNAL JUDGE JUSS
Between
MR EBRIMA S K GIBBA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: No appearance
For the Respondent: Mr P Armstrong (HOPO)
DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge McGinty, promulgated on 11th August 2014, following a hearing at Manchester on 28th July 2014. In the determination, the judge allowed the appeal of Ebrima S K Gibba. The Respondent 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 Gambia, who was born on 14th April 1981. He appealed against the decision of the Respondent dated 17th April 2014, refusing him his application for a residence card, as his confirmation of a right to reside in the United Kingdom under Regulation 17(1)(B) of the Immigration (European Economic Area) Regulations 2006.
The Appellant's Claim
3. The Appellant's claim is that he has the marriage certificate showing his marriage taking place in Banjul in the Republic of Gambia, in the form of a proxy marriage, with his French national wife, Mounina Traore, who was not present at the wedding in Gambia.
The Judge's Findings
4. The judge had regard to the fact that a marriage certificate had been produced from the Banjul Muslim Court of the Gambia, and it was stated in the certificate that a late registration does not in any way nullify a Muslim marriage (see paragraph 8). The judge accepted the application for registration. The judge allowed the appeal.
The Grounds of Application
5. The grounds of application state that the judge erred in law because he did not have regard to two Upper Tribunal decisions in recent times, namely, Kareem (Proxy marriages - EU law) [2014] UKUT 24, and TA (Kareem explained) Ghana [2014] UKUT 00316. The first of these was published on 23rd January 2014. The second of these was published on 14th July 2014. Given that the judge heard the appeal on 28th July 2014, he should have been aware of both these determinations.
6. On 24th October 2014, permission to appeal was granted on the basis that these cases established that the Appellant must show that the country of which the claimed spouse is a national (in this case France) recognised as valid the proxy marriage. Since this had not been done, the judge erred in law.
Submissions
7. At the hearing before me on 2nd December 2014, the Appellant was not in attendance. Neither was there anyone in attendance on his behalf. Nor, was there any explanation offered for the non-attendance. Mr Armstrong, appearing on behalf of the Respondent, submitted that paragraph 16 of Kareem makes it quite clear that rights of free movement and residence stem directly from union citizenship. Given that this is the case, "the law that applies will be the law of the member state of nationality and not the host member state ? this is because nationality remains within the competency of the individual member states."
Error of Law
8. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCA 2001) such that I should set aside the decision and remake the decision (see Section 12(2) of TCA 2007). It is quite clear from Kareem that what is required is evidence from the member state of recognition of a marriage by way of proxy. Kareem makes it quite clear that, "a lack of evidence of relevant foreign law will normally mean that the party with the burden of proving it will fail" (paragraph 14).
Remaking the Decision
9. I have remade the decision on the basis of the findings of the original judge, the evidence before him, and the submissions that I have heard today. I am dismissing this appeal for the reasons that are set out above. The onus is on the Appellant, who has chosen not to attend, to provide evidence of the relevant foreign law recognising proxy marriages. In the case of France, one knows it to be clear that France does not recognise marriages by way of proxy.
10. It is irrelevant that the Appellant has produced evidence from Gambia confirming his marriage as being valid in that state. His rights to free movement do not accrue directly from his marriage in the Gambia. They accrue from his alleged wife's union citizenship the law of the member state in France is the relevant law. It is not the relevant law in either the host member state or the state of Gambia. This appeal is dismissed.
Decision
11. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is dismissed.
12. No anonymity order is made.
Signed Date
Deputy Upper Tribunal Judge Juss 27th December 2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20950/2014
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reason Promulgated
On 2nd December 2014
On 29th December 2014
Before
DEPUTY UPPER TRIBUNAL JUDGE JUSS
Between
MR EBRIMA S K GIBBA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: No appearance
For the Respondent: Mr P Armstrong (HOPO)
DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge McGinty, promulgated on 11th August 2014, following a hearing at Manchester on 28th July 2014. In the determination, the judge allowed the appeal of Ebrima S K Gibba. The Respondent 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 Gambia, who was born on 14th April 1981. He appealed against the decision of the Respondent dated 17th April 2014, refusing him his application for a residence card, as his confirmation of a right to reside in the United Kingdom under Regulation 17(1)(B) of the Immigration (European Economic Area) Regulations 2006.
The Appellant's Claim
3. The Appellant's claim is that he has the marriage certificate showing his marriage taking place in Banjul in the Republic of Gambia, in the form of a proxy marriage, with his French national wife, Mounina Traore, who was not present at the wedding in Gambia.
The Judge's Findings
4. The judge had regard to the fact that a marriage certificate had been produced from the Banjul Muslim Court of the Gambia, and it was stated in the certificate that a late registration does not in any way nullify a Muslim marriage (see paragraph 8). The judge accepted the application for registration. The judge allowed the appeal.
The Grounds of Application
5. The grounds of application state that the judge erred in law because he did not have regard to two Upper Tribunal decisions in recent times, namely, Kareem (Proxy marriages - EU law) [2014] UKUT 24, and TA (Kareem explained) Ghana [2014] UKUT 00316. The first of these was published on 23rd January 2014. The second of these was published on 14th July 2014. Given that the judge heard the appeal on 28th July 2014, he should have been aware of both these determinations.
6. On 24th October 2014, permission to appeal was granted on the basis that these cases established that the Appellant must show that the country of which the claimed spouse is a national (in this case France) recognised as valid the proxy marriage. Since this had not been done, the judge erred in law.
Submissions
7. At the hearing before me on 2nd December 2014, the Appellant was not in attendance. Neither was there anyone in attendance on his behalf. Nor, was there any explanation offered for the non-attendance. Mr Armstrong, appearing on behalf of the Respondent, submitted that paragraph 16 of Kareem makes it quite clear that rights of free movement and residence stem directly from union citizenship. Given that this is the case, "the law that applies will be the law of the member state of nationality and not the host member state ? this is because nationality remains within the competency of the individual member states."
Error of Law
8. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCA 2001) such that I should set aside the decision and remake the decision (see Section 12(2) of TCA 2007). It is quite clear from Kareem that what is required is evidence from the member state of recognition of a marriage by way of proxy. Kareem makes it quite clear that, "a lack of evidence of relevant foreign law will normally mean that the party with the burden of proving it will fail" (paragraph 14).
Remaking the Decision
9. I have remade the decision on the basis of the findings of the original judge, the evidence before him, and the submissions that I have heard today. I am dismissing this appeal for the reasons that are set out above. The onus is on the Appellant, who has chosen not to attend, to provide evidence of the relevant foreign law recognising proxy marriages. In the case of France, one knows it to be clear that France does not recognise marriages by way of proxy.
10. It is irrelevant that the Appellant has produced evidence from Gambia confirming his marriage as being valid in that state. His rights to free movement do not accrue directly from his marriage in the Gambia. They accrue from his alleged wife's union citizenship the law of the member state in France is the relevant law. It is not the relevant law in either the host member state or the state of Gambia. This appeal is dismissed.
Decision
11. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is dismissed.
12. No anonymity order is made.
Signed Date
Deputy Upper Tribunal Judge Juss 27th December 2014