Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21345/2015, IA/22948/2015
IA/22958/2015, IA/22959/2015
IA/22960/2015, IA/30997/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 28 February 2017
On 6 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE A MONSON

Between

OAO (1st Appellant)
IOO (2nd Appellant)
DBO (3rd Appellant)
SOO (4th Appellant)
JOO (5th Appellant)
MOO (6th Appellant)
(ANONYMITY DIRECTION MADE)
Appellants
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Christopher Lane (Counsel instructed by Jemek Solicitors)
For the Respondent: Ms R Pettersen (Specialist Appeals Team)

DECISION AND REASONS

1. The Appellants appeal from the decision of the First-tier Tribunal (Judge Birk sitting at Birmingham on 2 June 2016) dismissing their appeals against the decision of the Secretary of State to refuse to issue the first Appellant with a permanent Residence Card as confirmation that she had a retained right of residence under Regulation 10(5) of the Immigration (EEA) Regulations 2006 following her divorce from “AS” on 16 July 2013, when Walsall County Court issued a Decree Absolute. The second to sixth Appellants are the first Appellant’s children, and their appeals were dismissed in line with the dismissal of their mother’s appeal. The First-tier Tribunal made an anonymity direction in favour of the Appellants, and I was not asked to discharge the anonymity order for these proceedings in the Upper Tribunal.
Relevant background
2. All of the first Appellant’s children are minors, apart from the sixth Appellant, “M”, who was born on 9 June 1992. “J” was born on 27 April 2002, “S” was born on 30 October 2007, “I” was born on 30 June 2010 and “D” was born on 2 September 2014. All the children have the same father.
3. The first Appellant applied on 26 November 2014 for a permanent Residence Card, and she included the second to fifth Appellants in her application as her dependents. The sixth Appellant, who was already an adult by this time, applied separately on 23 March 2015 for a Residence Card. The applications were refused on 22 May 2015 and 28 August 2015 respectively. The Grounds of Refusal were the same.
4. The Secretary of State said she had sufficient evidence to believe that the marriage undertaken by the first Appellant to AS was one of convenience for the purpose of the first Appellant gaining and retaining leave to remain in the United Kingdom.
5. The reasoning of the Secretary of State was twofold. Firstly, there was insufficient documentary evidence of cohabitation. The evidence she provided was wholly insufficient in both quality and range to establish that she had been in a genuine and subsisting marriage. Furthermore, the first Appellant had provided Council Tax bills from Walsall Council dated from May 2009 to March 2015, all of which were addressed to her. On each of those Council Tax bills, the first Appellant had received a reduction in her charge of 25% for single occupancy. This cast further serious doubt on her claim to have been in a genuine and subsisting marriage with her EEA national Sponsor, AS.
6. Secondly, it was noted that the minor children had been born in 2002, 2007, 2010 and 2014. On each of their birth certificates, the name of their father was given as the first Appellant’s claimed ex-spouse. So the first Appellant had continued to be in “some sort of relationship” with her ex-spouse throughout the period of her claimed marriage with her EEA national Sponsor.
7. She also needed to provide evidence that the EEA national Sponsor was a qualified person and that she was therefore residing in accordance with the Regulations at the point of divorce.
8. Her representatives stated that she had lost contact with him, and that she had been unable to obtain any evidence from him. She had provided very little evidence of his employment. There was only some documentary evidence from 2009. While a separation might have caused problems in obtaining evidence from her EEA national Sponsor, it was noted that she had managed to obtain other evidence from him in the form of bank statements and utility bills. The Home Office did not find it credible that she had not also been able to obtain evidence relating to her EEA national Sponsor’s employment at the time of divorce, if he was employed at that time.
The Hearing Before, and the Decision of, the First-tier Tribunal
9. At the hearing before Judge Birk there was no representation on behalf of the Secretary of State. The Appellants were however legally represented.
10. The Judge received oral evidence from the first and sixth Appellants. The first Appellant’s evidence included a witness statement she had signed on 3 June 2015. She had married the father of her children on 19 December 1999 in Nigeria. She had first come to the UK in 2004 as a visitor, and she had returned to Nigeria on numerous occasions subsequently.
11. She came to United Kingdom as a visitor on 5 March 2006 with her two oldest children. As they liked the country, she left them with her sister-in-law and returned to Nigeria. She continued to come to and from the UK on a visit visa, but then her husband decided to mistreat her and he was also having several affairs.
12. She gave birth to her third child in the UK on 30 October 2007 when present in the country on a visit. She returned to Nigeria after the birth. She then applied for a divorce from her husband in Nigeria, which was granted on 7 January 2009.
13. She met AS at a party in Nottingham in 2008, and their relationship started at that point. She married AS on 20 May 2009, and they resided together as husband and wife. At the time he was working in Nottingham and so he used to commute to work.
14. Three months into the marriage, he started to become abusive towards her and he hit her on many occasions. Her elder son M wanted to go to university, but AS refused to support him financially in the matter and he refused to complete any documents to assist M in his plan. He showed no love towards her children.
15. The domestic abuse carried on for months. As started to stay out late and return in the early hours of the morning, being drunk and abusive. He refused to open a joint account with her. He also showed no emotional or physical interest in her.
16. At the time the children’s father was in contact with the children, and as a result of all the domestic violence and trauma which she had experienced, she started to tell the children’s father about her problems and one thing just led to another and she fell pregnant with another child by her ex-spouse.
17. The sixth Appellant adopted as his evidence in chief a witness statement signed by him on 3 March 2015 in which he gave the same account as that given by his mother. At first everything was fine following the marriage on 20 May 2009, but then AS became abusive towards his mother and he hit her on many occasions. He was also verbally abusive towards him and his younger siblings. As a result of all the tension at home, his studies were affected. So he had to seek support from the Bradford Student Health Service, and from their counselling service, in relation to the situation at home, which was affecting him emotionally and physically.
18. Because his mother was subjected to domestic abuse by AS, she started to inform M’s father what was happening at home as he could see that M was constantly low and unhappy. Although his father gave his mother emotional support, they were not in a relationship.
19. His mother ended up becoming pregnant, and she told AS about the pregnancy and offered to have an abortion. He refused: he said that he would accept the child as his own. But his attitude changed after the baby was born, and after his mother started to work again. His mother decided to leave AS in August 2012. He had not seen AS since the date of separation.
20. In her subsequent decision, Judge Birk held that there was a reasonable suspicion that the marriage had been one of convenience. This suspicion arose due to the documentation that the first Appellant had submitted. The Judge attached great weight to the fact that the Council Tax bills for the period 28 May 2009 to 31 March 2013 claimed a discount every year for single occupancy. The first Appellant had provided a witness statement dated 3 June 2015 where she dealt with the issues in dispute, “but she fails noticeably to address this very serious issue”.
21. The claiming of the discount was incompatible with her living as a couple with the EEA national. There was no evidence of this being a mistake or that the first Appellant had refunded the Council for the discount:
“I find that this is a very powerful piece of evidence against her claim.”
22. At paragraph [22] she found that the weight of evidence fell very heavily on the side of determining that this was not a genuine and subsisting marriage, and she found that this was a marriage of convenience.
The Reasons for the Grant of Permission to Appeal to the Upper Tribunal
23. On 22 November 2016, Upper Tribunal Judge Hanson gave his reasons for granting the Appellant’s permission to appeal. The Grounds referred to two key issues: the first being the failure of the Judge to make findings in relation to the evidence of the witness, M, and the second being the failure to consider the evidence in relation to the claim for single person occupancy for Council Tax. Judge Hanson granted permission to appeal for the following reasons:
“The Judge arguably failed to consider the question of the nature and purpose of the marriage at the correct time, i.e. when it was entered into. Whether this is a material error shall have to be considered at the next hearing as it is noted the Refusal relied upon two issues, the second of which related to prove that the EEA national was exercising Treaty Rights on the date of the Decree Absolute. This is not considered by the Judge and, if this is not the case, the appeal may have failed in any event.”
The Rule 24 response
24. On 29 November 2016, a member of the Specialist Appeals Team settled a Rule 24 response opposing the appeal. The Judge had directed herself appropriately. It was open to the Judge to consider adversely the fact that the children who were born to the first Appellant in 2010 and 2014 were fathered by the first Appellant’s previous husband, even if the birth in 2014 was after the divorce. It was unfortunate that the Judge had not directly referred to this evidence. Nonetheless, the Judge had considered all the relevant issues and had resolved them with reasons. Taking a holistic approach to the determination as a whole, the decision complied with the guidance given in Budhathoki (reasons for decisions) [2014] UKUT 00341 (IAC).
Discussion
25. In oral argument, Mr Lane, who did not appear below, submitted that a reasonable explanation for the first Appellant claiming a single person discount was that the EEA national Sponsor was working in Nottingham during the week, and was only returning to the matrimonial home at weekends. However, this does not appear to have been the thrust of the evidence which was given by the witnesses at the hearing before Judge Birk.
26. I accept that there is documentary evidence indicating that the EEA national Sponsor was residing elsewhere during his marriage to the first Appellant. However, prima facie this reinforces, rather than rebuts, the proposition that the marriage is one of convenience. There is no error of law in the Judge attaching great weight to the first Appellant claiming a single occupancy Council Tax discount throughout the period when she was supposed to be cohabiting with AS in a genuine marriage.
27. However, I consider that an error of law is made out on the other ground advanced by Mr Lane. The Rule 24 response quotes a passage in Budhathoki which contains the following:
“It is, however, necessary for First-tier Tribunal Judges to identify and resolve the key conflicts in the evidence and explain in clear and brief terms their reasons for preferring one case to the other so that the parties can understand why they have won or lost.”
28. In her decision, Judge Birk has addressed the documentary evidence, but not the oral evidence. She has not addressed the evidence of the first and sixth Appellants that the marriage was at the outset genuine and subsisting, but that it broke down due to the domestic violence and abuse which was meted out by the EEA national Sponsor on the first Appellant primarily, but also on the other Appellants, including the sixth Appellant.
29. The same evidence, if accepted, also provides at least a partial explanation for the absence of documentary evidence of cohabitation. For one of the claims made by the first Appellant is that part of her EEA national spouse’s abusive behaviour was refusing to agree to open a joint bank account.
30. The Judge faced the difficulty that there was no Presenting Officer present to cross- examine the witnesses on their evidence. This may have been why she made no reference at all in her reasons to the fact that the first Appellant had given birth to another child by her ex-spouse on 30 June 2010, a fact which is reasonably relied upon by the Respondent as being more consistent with the marriage being one of convenience from the outset than it is with it being a genuine marriage at the outset.
31. According to the birth certificates for the two youngest children, the father also resides in Walsall, and thus at all material times the father was living in closer proximity to the Appellants than the EEA national Sponsor, who was living and working in Nottingham. The Appellants cannot derive a right of residence from the father, as he is not shown to have a right to reside in the UK either under the 2006 Regulations or under the Immigration Rules.
32. On a holistic appraisal of the evidence, the Judge was not bound to accept the oral evidence of the witnesses. But she had to engage with their evidence in her findings, and she had to resolve the key conflict which arose from their evidence: which was whether the birth of the child in June 2010 was symptomatic of the fact that the first Appellant, an irregular migrant, had remained in a relationship with the father of her children, also an irregular migrant, and thus the marriage to the EEA national was one of convenience; or, as attested to by the first and sixth Appellants, the birth of the child in June 2010 came about accidentally as a result of the first Appellant seeking comfort from her ex-spouse in the face of the domestic abuse that she was suffering at the hands of AS, of which (as Mr Lane confirmed) there is no independent evidence.
33. The Judge’s error is material as documentary evidence has been obtained from HMRC which is capable of establishing that AS was exercising Treaty Rights at the date of divorce, albeit that the evidence is not conclusive on the point. The evidence from HMRC was available to the First-tier Tribunal Judge, and she did not make any findings on it.

Notice of Decision
34. The decision of the First-tier Tribunal contained an error of law such that the decision must be set aside in its entirety and remade.

Directions
35. I direct that this appeal is remitted to the First-tier Tribunal in Birmingham for a fresh hearing before any Judge apart from Judge Birk.
36. None of the findings of fact made by the previous Tribunal shall be preserved.

Anonymity
Pursuant to Rule 14(1) of the Upper Tribunal Procedure Rules, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Monson