Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22131/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 November 2016
On 9 November 2016

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

Michael Brown
[NO ANONYMITY ORDER]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr D Balroop, Counsel instructed by Shan & Co, solicitors
For the respondent: Ms Z Ahmad, a Senior Home Office Presenting Officer

DECISION AND REASONS
Decision and reasons
1. The appellant appeals with permission against the decision of the First-tier Tribunal to refuse him an EEA residence card as a spouse or an extended family member of an EEA national, pursuant to the Immigration (European Economic Area) Regulations 2006 (as amended). The appellant is a citizen of Ghana and his claimed partner is a citizen of Germany.
2. The appellant puts his case in two ways: firstly, he contends that he is the spouse of an EEA national and is entitled to a residence card under Regulation 7 of the EEA Regulations, as a family member. He relies on a claimed proxy marriage between himself and a German citizen of Ghanaian origin, entered into when they were both in the United Kingdom.
3. Secondly, if that argument is unsuccessful, he contends that the evidence relied upon by the respondent under Regulation 8 to show that he is not in a durable relationship, and that his marriage (if such it be), is a sham marriage, is insufficient to shift the burden of proof to him to prove the contrary.
4. There is no challenge to the First-tier Tribunal's findings under Article 8 ECHR.
Regulation 7: the proxy marriage
5. It is accepted on behalf of the appellant that no evidence was put before the First-tier Tribunal as to the laws of Germany, the Member State from which the appellant's claimed spouse obtains nationality, in relation to proxy marriages. The appellant's Counsel wished to reserve his position as to whether that absence of evidence was determinative of the Regulation 7 element of the appeal, pending the decision of the Court of Appeal on an appeal from the Upper Tribunal's guidance in TA and others (Kareem explained) Ghana [2014] UKUT 00316 (IAC).
6. The First-tier Tribunal and the Upper Tribunal are bound by the law as it stands, rather than as it may be after a future decision in the Court of Appeal. The Upper Tribunal in Kareem held that:
a. A person who is the spouse of an EEA national who is a qualified person in the United Kingdom can derive rights of free movement and residence if proof of the marital relationship is provided.
b. The production of a marriage certificate issued by a competent authority (that is, issued according to the registration laws of the country where the marriage took place) will usually be sufficient. If not in English (or Welsh in relation to proceedings in Wales), a certified translation of the marriage certificate will be required.
c. A document which calls itself a marriage certificate will not raise a presumption of the marriage it purports to record unless it has been issued by an authority with legal power to create or confirm the facts it attests.
d. In appeals where there is no such marriage certificate or where there is doubt that a marriage certificate has been issued by a competent authority, then the marital relationship may be proved by other evidence. This will require the Tribunal to determine whether a marriage was contracted.
e. In such an appeal, the starting point will be to decide whether a marriage was contracted between the appellant and the qualified person according to the national law of the EEA country of the qualified person's nationality.
f. In all such situations, when resolving issues that arise because of conflicts of law, proper respect must be given to the qualified person's rights as provided by the European Treaties, including the right to marry and the rights of free movement and residence.
g. It should be assumed that, without independent and reliable evidence about the recognition of the marriage under the laws of the EEA country and/or the country where the marriage took place, the Tribunal is likely to be unable to find that sufficient evidence has been provided to discharge the burden of proof. Mere production of legal materials from the EEA country or country where the marriage took place will be insufficient evidence because they will rarely show how such law is understood or applied in those countries. Mere assertions as to the effect of such laws will, for similar reasons, carry no weight.
h. These remarks apply solely to the question of whether a person is a spouse for the purposes of EU law. It does not relate to other relationships that might be regarded as similar to marriage, such as civil partnerships or durable relationships."
7. The position was further clarified in the judicial headnote to TA's case:
"Following the decision in Kareem (proxy marriages - EU law) [2014] UKUT 24, 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 obtains nationality."
8. The First-tier Tribunal was bound by the decisions in Kareem and in TA and would therefore have been obliged to dismiss the spouse element of the appellant's argument, because no satisfactory evidence of the existence of the claimed proxy marriage, or its validity in Germany, was produced. The appellant had not discharged the burden upon him of showing that he was in fact the spouse of an EEA citizen exercising Treaty rights in the United Kingdom.
9. There is no error of law, material or otherwise, in the First-tier Tribunal's decision under Regulation 7.
Regulation 8: Durable relationship
10. The remaining question is whether the appellant is entitled to a residence card under Regulation 8 as an extended family member, because he claims to be in a durable relationship with an EEA national. On that point, a question of jurisdiction arose, which had not been taken below. In Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC) the Upper Tribunal held that:
"There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member."
11. In Virk & Ors v Secretary of State for the Home Department [2013] EWCA Civ 652, Lord Justice Patten, with whom Lord Justice Briggs and Lord Justice Leveson agreed, held that a point on jurisdiction can be taken at any time:
"23. This decision is consistent with the fact that the First-tier Tribunal is a creation of statute whose jurisdiction in this case is limited by the terms of s.82 of the 2002 Act. The same goes for the Upper Tribunal. Statutory jurisdiction cannot be conferred by waiver or agreement; or by the failure of the parties or the tribunal to be alive to the point. Although, as Longmore LJ pointed out, decisions taken without jurisdiction may in due course become irreversible, that point has not been reached in this case. It was, in my judgment, open to either the First-tier Tribunal or the Upper Tribunal to take the point about jurisdiction notwithstanding the failure of the Secretary of State to raise it herself. ..."
It is a material error of law to proceed to determine an issue on which a Tribunal has no jurisdiction.
12. In this case, applying Sala, I find that neither the First-tier Tribunal, nor the Upper Tribunal, has jurisdiction to entertain an appeal against refusal of an application for a residence card under Regulation 8 as an extended family member. It follows that there is no valid appeal before me.
13. Even if there had been a valid appeal before the First-tier Tribunal on this issue, I do not consider that it could have succeeded. For the reasons set out at [47]-[53] in the First-tier Tribunal decision, the Judge found that the respondent was entitled to conclude that the appellant was not living at the address where he claimed to be living. In particular, he noted that:
(a) Immigration Officers conducted a visit at the address where the appellant and his claimed partner said they lived. The tenancy was in the name of another person (and his Council tax shows that the tenant was claiming single person's relief). It was occupied by that tenant, and three other individuals, none of whom recognised the names of the appellant or his claimed partner. The appellant does not dispute that the visit occurred: he was told of it promptly by those who were questioned at the property.
(b) The appellant asserted that he was known by a different name at the address in question, but produced no evidence from the other persons living at that address to confirm that, and no explanation at all as to why they did not recognise his claimed partner's name.
(c) The appellant asserted that he and his claimed partner were allowed to stay in that property on the basis that they would pay the utility bills, but the evidence produced did not demonstrate that they did pay any utility bills.
(d) There was nothing from the legal tenant to confirm that he knew of the relationship between the appellant and his claimed partner, or its durability.
14. The appellant's challenge does not approach the R (Iran) & Ors v Secretary of State for the Home Department [2005] EWCA Civ 982 standard for interference with findings of fact and credibility by the fact-finding Tribunal. There is no want of reasoning in paragraphs [47]-[53] of the First-tier Tribunal decision, save for the Sala/Virk error.
15. On the contrary, the First-tier Tribunal Judge provided proper, intelligible and adequate reasons for the conclusions reached, which were soundly based on the evidence before him. On any view of the evidence, it seems to me (albeit obiter dicta) that this appeal was bound to fail under Regulation 8 also.

DECISION
16. For the foregoing reasons, my decision is as follows:
The making of the previous decision involved the making of an error on a point of law.
The appeal under Regulation 7 of the EEA Regulations is dismissed.
There is no valid appeal before the Upper Tribunal under Regulation 8 of the EEA Regulations.

Date: 7 November 2016 Signed Judith AJC Gleeson
Upper Tribunal Judge Gleeson