Tribunal decisions

The decision

IAC-CH-SA-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21305/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 22nd February, 2017
Signed and sent to
Promulgation on 23rd
February 2017.
On 24th February, 2017

Before

Upper Tribunal Judge Grubb
Upper Tribunal Judge Chalkley

Between

Mr faisal shahzad
(NO ANONYMITY DIRECTION)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr R Ahmed of Counsel
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Pakistan who was born on 15th March 1985. On 26th June 2016, the appellant applied for a residence card as the spouse of an EEA national, Karina Petnikova, a citizen of Estonia ("the sponsor"). Following a visit by Immigration Officers at the appellant's home address, the respondent refused the application believing that the marriage was one of convenience. The application was refused on 20th April, 2015 and the appellant appealed that decision to the First-tier Tribunal.

2. At the hearing before the First-tier Tribunal Judge, Counsel conceded that the appellant's appeal could not succeed under the Immigration (European Economic Area) Regulations 2006, but the appellant had served a section 120 notice under the Nationality, Immigration and Asylum Act 2002 and argued that the appellant's removal would involve a breach of Article 8.

3. In considering the appellant's Article 8 claim, the judge noted that although the appellant speaks some English, the validity of the test which he had purported to sit was disputed by the respondent and there were allegations of fraud regarding that test which, the judge found, it was not necessary for him to resolve.

4. He went on to find there had been no breach of Article 8 and dismissed the appellant's appeal.

5. Permission to appeal was granted by a First-tier Tribunal Judge on the basis that the Tribunal may have erred by failing to make a finding on the allegations of fraud, because this would have an impact on any future application.

6. In addressing us, Mr Ahmed suggested that the judge had failed to make a finding on whether or not there was any deception on the part of the appellant in relation to his English language test certificate. He argued that the judge should have made a finding before going on to consider the appellant's Article 8 claim. The Tribunal put it to Mr Ahmed that if the judge had made such a finding and found against the appellant, it could only have damaged the appellant's Article 8 claim, but the fact that he did not make any such finding was to the appellant's advantage and, therefore, not material to the outcome of the appeal. Mr Ahmed agreed that there was no material error of law disclosed by the determination of Judge M Whitcombe.

7. Mr McVeety, appearing for the respondent, agreed.

8. Both representatives having agreed that there was no material error of law in the judge's determination, we uphold it. The appellant's Article 8 appeal is dismissed.

No anonymity direction is made.

Richard Chalkley

A Judge of the Upper Tribunal

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Richard Chalkley

A Judge of the Upper Tribunal