Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20977/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 January 2017
On 8 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

Mr EMMANUEL EFE AGHO
(ANONYMITY DIRECTION NOT MADE)
Appellant

And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr E Oremuyima (Counsel instructed by Wilson Solicitors)
For the Respondent: Ms A Brocklesby-Weller (Specialist Appeals Team)

DECISION AND REASONS

1. The Appellant appeals from the decision of the First-tier Tribunal dismissing his appeal against the decision by the Secretary of State to refuse to issue him with a Residence Card as confirmation of his right to reside in the United Kingdom as the spouse of an EEA national exercising Treaty Rights here.
2. The sole ground for refusal was that the Secretary of State had sufficient evidence to believe that the marriage undertaken by him on 11 January 2014 to Lenka Tokarova was one of convenience for the sole purpose of him remaining here in the United Kingdom.
3. The First-tier Tribunal did not make an anonymity direction in the Appellant's favour, and I do not consider that the Appellant requires anonymity for these proceedings in the Upper Tribunal.
The Reasons for the Grant of Permission to Appeal
4. On 10 November 2016, First-tier Tribunal Judge Hollingworth granted permission to appeal for the following reasons:
"1. It is arguable that the Judge should have set out a fuller analysis as to the switching of the evidential burden in the context of the issue of the marriage of convenience. At paragraph 5 the Judge is referred to not believing that the Appellant and his wife were in a genuine relationship as a married couple and on the totality of the evidence believing that this was a relationship entered into as one of convenience.
2. It is arguable that the Judge should have referred to the burden and standard of proof in this context."
Relevant Background Facts
5. The Appellant is a national of Nigeria, whose date of birth is 28 January 1981. On 4 February 2014 he applied for a Residence Card as confirmation of a right to reside in the United Kingdom under the community treaties.
6. On 13 December 2014, a visit was undertaken to the address which he had given as the home address of himself and his EEA national spouse. This was an address in Dagenham. In the meantime, according to the Appellant, the Respondent had sent him a letter dated 17 July 2014 asking him for further information about his marriage in the form of a questionnaire. The Appellant says that he and his spouse had completed the questionnaire to the best of their ability.
7. As evidenced by a report at D1 of the Home Office bundle, on 13 December 2014 a named member of the sham marriage team wrote an account of the marriage visit which had been conducted earlier that day in order to verify the relationship between the Appellant and his Czech partner.
8. They had arrived at the scene at 08.35am. Entry was gained via a male occupant after them identifying themselves by showing their warrant card and explaining the reason for their visit today. The occupant stated that he and his wife had moved into the address seven months ago. He stated he had never met the Appellant since he moved out from the address 7 to 8 months ago. He showed them post addressed to both the Appellant and his claimed partner. He said he kept sending the post back, but was still receiving "them". The team left the address at 08.45am.
9. In a letter dated 27 April 2015, the Secretary of State gave her reasons for refusing the Appellant's application. A visit had been undertaken to his declared home address to establish the validity of his application and to see if his relationship to Lenka Tokarova was subsisting. The visit findings by Immigration Officers showed that he and his Sponsor were not residing at the above address. Information was gained stating that he and his Sponsor had never lived at this address. He had not given the Home Office any further address to contact or to visit. So based on the information detailed in the immigration report and the fact that he did not reside at the address he had given to the Home Office, the Secretary of State had sufficient evidence to believe that the marriage undertaken to Lenka Tokarova was one of convenience for the sole purpose of him remaining here in the United Kingdom.
The Hearing Before, and the Decision of, the First-tier Tribunal
10. The Appellant's appeal came before Judge Andonian sitting at Taylor House in the First-tier Tribunal on 10 June 2016. Both parties were legally represented. The Judge received evidence from the Appellant and a friend, Mr Taiwo Oduwole.
11. The Appellant said he had left the address given in the application form in March 2014 and had gone to live with Mr Oduwole. He admitted he had not given the Home Office his correct address. His friend said that he had known the Appellant for the last 10 years and that he had accommodated his friend and his spouse in his front room. He had a one-bedroom flat.
12. In his subsequent decision, Judge Andonian gave his reasons for finding against the Appellant in paragraphs [2] to [6]. He referred to the admission by the Appellant that he had not given the Home Office "his correct address". He found that the Appellant was not a credible individual therefore in that respect. He noted the evidence of the friend that, although he had known the Appellant for a very long time and wanted to assist him, he was not prepared to have letters addressed to the Appellant sent to his address. The Judge did not find this credible, especially as the Appellant had been a friend of his for so many years.
13. There was no appearance by the Appellant's wife, which the Judge found most concerning. The Appellant said his wife was in Manchester as her mother was sick. When asked what was wrong with her mother, after a pause the Appellant came out with the statement that she had cancer. There was no medical report, and there was no statement from the Appellant's wife to the effect that she could not attend the hearing because she was with her mother in Manchester. There was no information when the wife had left for Manchester, or the address she had gone to in Manchester, or when she was going to return to London. It was put to the Appellant that she must have known the significance of her attendance at his appeal, and he replied that she did know its significance, but she had to go to Manchester. The Judge did not find this to be a credible.
14. The Judge observed that there was in fact no evidence that his spouse was in the UK at all. The Judge noted at paragraph [6] that the Appellant's wife had signed a statement on 30 May 2016 supporting the appeal, but he held that she ought to have been present to answer the most crucial questions about this appeal since she was one of the main protagonists.
The Hearing in the Upper Tribunal
15. At the hearing before me to determine whether an error of law was made out, Mr Oremuyima developed the arguments advanced in the application for permission.
16. Ground 1 was that the Judge's decision was erroneous as he had misdirected himself at paragraph 5 of his decision in not applying the test in TA and Others (Kareem explained) Ghana [2014] UKUT 00316. This stated that:
"The determination of whether there is a marital relationship for the purposes of the Immigration (EEA) Regulations 2006 must always be examined in accordance with the laws of the Member State from which the Union citizen derives nationality."
17. Ground 2 was that the Judge had misdirected himself on the definition of a marriage of convenience. The marriage could not be considered as a marriage of convenience simply because it brought an immigration advantage. The quality of the relationship was immaterial. Cohabitation was not a legal requirement under EU law. There was no requirement in the EU law that couples must reside together at the same address. The sole requirement was for the marriage to be valid; and following the authority in TA and Others (Kareem explained), the Appellant's marriage was valid.
18. Ground 3 was that the burden of proof was on the Respondent to show reasonable suspicion as regards her allegation of the marriage of convenience. This burden had not been discharged by the Respondent, and therefore the Judge could not find that the burden had been discharged. In so finding, he had erred in law.
Discussion
19. Mr Oremuyima did not settle the application for permission to appeal, and he focused his submissions on the arguable errors identified by Judge Hollingworth in granting permission.
20. Mr Oremuyima correctly identified a factual error in the decision letter which was carried forward into the Judge's decision. It is not in fact the case that the Immigration Officers established that the Appellant and his spouse had never resided at the address given in the application form. The evidence gathered by the Immigration Officers was that the claimant and his wife had resided at the address in the past, but they had left the address some seven or eight months ago.
21. However, I do not consider that this factual error is material as the other findings made by the Judge hold good. As the Appellant admitted, he had not notified the Home Office of a change of address in March 2014, which was shortly after he had made his application. There was direct evidence from the current occupier of the premises that he had not seen the Appellant since he moved out seven or eight months ago, and that no arrangement had been put in place to forward correspondence addressed to him and his spouse at a new address. It also followed from what the occupier had said that the Appellant was not coming around to the old address to pick up his correspondence.
22. So the behaviour of the Appellant was not consistent with there being a genuine marital relationship between him and his spouse. There was also, as the Judge found, no supporting documentary evidence to show that the Appellant and his spouse had been cohabiting since March 2014 in the front room of the one-bedroom flat of the Appellant's friend.
23. It is of course right that cohabitation is not an essential prerequisite of a marriage being subsisting; and it does not necessarily follow from the fact that a marriage is not shown to be genuine and subsisting at the date of assessment that the marriage was one of convenience from the outset. However, the information garnered on the visit to the claimed home address on 13 December 2013 engendered reasonable suspicion that the marriage had been entered into for the predominant purposes of securing residence rights, and accordingly the evidential burden shifted to the Appellant to provide credible evidence allaying such a reasonable suspicion.
24. The Judge did not conduct his analysis in line with the guidance given in Papajorgji (EEA spouse - marriage of convenience) Greece [2012] UKUT 00038 (IAC), but I do not consider that this discloses a material error. The Judge was entitled to attach considerable weight to the absence of the spouse, and to take the view that her absence was not satisfactorily explained. It was open to him to find on the totality of the evidence that the Respondent had discharged the burden of proving on the balance of probabilities that the marriage was one of convenience.
25. Ms Brokesby-Weller sought to defend the decision of the First-tier Tribunal on the additional grounds that the Appellant's purported proxy marriage in Ghana to a Czech national was not shown to be valid, and accordingly the appeal fell to be dismissed on that ground in any event. It was not shown to be valid because the guidance given in TA and Others had not been followed. The Appellant had not produced evidence to show that his marriage to his Czech national Sponsor was recognised by the laws of the Czech Republic. So the appeal fell to be dismissed on that ground in any event.
26. Mr Oremuyima submitted that it was not open to the Secretary of State to take this point, as it had not been taken below or by way of a cross appeal. However, as previously noted, the issue was raised by the Appellant's solicitors in the application for permission to appeal. Since the Appellant's solicitors have contended by way of appeal that the Judge ought to have applied the guidance given by the Upper Tribunal in TA and Others, I do not consider that it is procedurally unfair to uphold the decision of the First-tier Tribunal on this additional and alternative ground.
27. In summary, I consider that the decision of the First-tier Tribunal dismissing the appeal on the ground that the Appellant is a party to a marriage of convenience does not contain an error of law. But even if I am wrong about that, I find that the error is not material, as the appeal fell to be dismissed in any event on the alternative ground that the Appellant did not discharge the burden of proving that his purported proxy marriage to his EEA national Sponsor was valid according to the laws of the Czech Republic.
Notice of decision
28. The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands. This appeal to the Upper Tribunal is dismissed.

Anonymity
The First-tier Tribunal did not make an anonymity direction, and so I make no anonymity direction for these proceedings in the Upper Tribunal.

Signed Date
Deputy Upper Tribunal Judge Monson