Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21604/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15th February 2017
On 28th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

ms fatoumata binetou farba mbaye
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Senegal who made an application for a residence card as confirmation of a right of residence as the spouse of an EEA national exercising treaty rights in the UK. That application was refused by the Respondent who considered the marriage to be one of convenience. The Appellant’s subsequent appeal to First-tier Tribunal Judge Moore was dismissed essentially because the judge found that the discrepancies between the account of the Appellant and her spouse wholly undermined their reliability and credibility that this was “anything other than a marriage of convenience”.
2. Grounds of application were lodged on the basis that the judge had wrongly found that the spouse was not “a qualified person”. Permission to appeal was initially refused but further grounds were lodged before the Upper Tribunal with the additional ground that the Respondent had not discharged the burden of proof as required by well-known case law.
3. Permission to appeal was allowed by Upper Tribunal Judge McWilliam who recorded that the appeal had been dismissed under the EEA regulations and found that it was arguable that the judge had misapplied the burden of proof (see Agho [2015] EWCA Civ 1198 and Papajorgji [2012] UKUT 00038).
4. Thus the matter came before me on the above date.
5. The Home Office lodged a Rule 24 notice dated 26th January 2017; it was submitted that the judge gave adequate reasons at paragraphs 13 to 29 of the decision to conclude that the marriage was one of convenience. The judge had made reference to the discrepancies in the interview and the evidence at the hearing. As such the judge was entitled to find against the Appellant. There was nothing to suggest that the judge did not properly apply the correct burden of proof in consideration of the facts.
6. Before me Ms Mbaye appeared without legal representation. Initially she had nothing material to add to the documents already lodged on her behalf and in response to the submission from Mr Staunton of the Home Office she said that she had not been criticised by the judge.
7. For the Home Office Mr Staunton referred me to paragraph 22 of the decision where the judge had said that he had found the interview transcript which took place on 21st May 2015 at the Home Office in Liverpool to be detailed and reliable and to properly reflect the responses given. It was clear from paragraph 22 that the judge had applied the correct standard and burden of proof and for the reasons that he had given the Secretary of State had discharged the burden of proof on her. In the circumstances the judge had been quite entitled to dismiss the appeal.
8. I reserved my decision.
Conclusions
9. As has been said elsewhere the burdens and standards of proof have progressively become an established feature of decision making in the field of immigration and asylum law. However there is no dispute here that the burden and standard of proof is on the Respondent and therefore when the judge said in paragraph 8 that the burden of proof was on the Appellant in a case of this nature he was not correct. Similarly the agent who appeared on behalf of the Appellant was not correct to say in paragraph 20 that the Appellant had discharged the burden of proof on her.
10. However it is important to read the judge’s decision holistically as he sets out the burden of proof mechanically in paragraph 8 because, under the Immigration Rules, the burden is usually on the Appellant to establish their case. When the judge said he was dismissing the appeal under the Immigration rules he can only have intended to convey that he was dismissing the appeal under the Immigration (EEA) 2006 regulations.
11. It must be said that the judge gave numerous reasons for finding that the marriage was one of convenience. At paragraph 21 he found the evidence given by the Appellant to lack credibility and to be unreliable and to be inconsistent in numerous and significant aspects with the evidence given by her spouse.
12. The judge found that the interview transcript was detailed and reliable and went on to say that no credible or reliable evidence had been provided in order to demonstrate that either the Appellant or her spouse was prejudiced at the hearing or that the interviewer had acted improperly or in an inappropriate way. In particular the judge noted that “The frank evidence of the spouse at this hearing was simply that he was unable to explain the inconsistency of some of his responses at interview when compared with those responses of his wife” (paragraph 22).
13. The judge went on at paragraph 24 and following paragraphs to recite the inconsistent evidence. For reasons stated the judge said that the interviewer would not have made such a mistake as had been suggested or would have fabricated names and that the interview recording in this regard was a fair reflection of the responses given by the Appellant during that interview.
14. In paragraph 29 he found the evidence given at the hearing and also the responses recorded at the marriage interview reflected a catalogue of “inconsistencies, contradictions, together with vague and incredible responses ...” which “wholly undermine the reliability and credibility that this is anything other than a marriage of convenience”.
15. Given the judge’s detailed reasoning the only reasonable inference to draw is that he was concluding that, on a balance of probabilities, the Secretary of State had discharged the burden of proof upon her to demonstrate that the appeal should be dismissed under the EEA regulations.
16. It follows that while it would have avoided further procedure if the judge had accurately stated where the burden of proof lay he did, in fact, apply the correct burden and standard; there is thus no material error of law in the decision which must stand.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The appeal is dismissed under the Immigration (EEA) regulations 2006.
I do not set aside the decision.
No anonymity direction is required or made.

Signed Date

Deputy Upper Tribunal Judge J G Macdonald

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge J G Macdonald