Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA227252015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On 18 May 2016
On 16 June 2016

Before

Deputy Upper tribunal Judge Mailer

Between

Rachael [A]
no anonymity direction made
Appellant
and

secretary of state for the home department
Respondent

Representation
For the Appellant: Ms S Sharma, counsel, instructed by Justice and Law Solicitors
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Ghana, born on [ ] 1984. In a decision promulgated on 4 September 2015, First-tier Tribunal Judge Watson dismissed her appeal against the decision of the respondent dated 8 June 2015 to refuse to issue her a residence card as a family member of her claimed sponsor, a French national. That appeal had been considered on the papers.
2. On 15 February 2016, Upper Tribunal Judge Canavan granted the appellant permission to appeal. Her grounds did not challenge the Judge's decision in relation to the validity of the proxy marriage. Her sole argument is that the Judge failed to make alternative findings as to whether the appellant was likely to be in a durable relationship for the purpose of Regulation 8(5) of the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations").
3. The Judge stated at paragraph [7] that whilst Regulation 8(5) is mentioned in the earlier submission, this is not pursued by the appellant's representative. Judge Canavan noted however that the appellant had put forward witness statements and limited evidence of cohabitation. It was accordingly arguable that the Judge should have engaged with that evidence and made alternative findings in relation to Regulation 8(5) of the 2006 Regulations.
4. On 6 May 2016, I set aside the decision of the First-tier Tribunal on the basis that there had been a failure to consider and assess the claim under Regulation 8(5) despite there being evidence of cohabitation in the bundle before the Tribunal. That constituted an error of law. It was directed that the decision would be re-made on a date to be arranged.
5. The appellant's sponsor did not attend the error of law hearing on 7 April 2016.
Remaking the decision
6. At the commencement of the proceedings on the 18 May 2016, Ms Sharma applied for an adjournment on the basis that the appellant's husband, [HS], had been telephoned the night before and was informed that his father was in a coma. Accordingly he made immediate arrangements to travel to France the following day. His coach was leaving from Victoria Station at 1.30pm.
7. Mr Whitwell opposed the application. [HS] had also not attended the Tribunal on 7 April 2016 where it was asserted by the appellant that her husband was suffering from food poisoning.
8. As regards the current circumstances, no statement has been made to establish the circumstances of his father in law's health; nor has any documentary evidence been produced. [HS] has purchased a single ticket to France. There is no evidence to suggest that he would be available on the next occasion. In the circumstances, there was no basis served by adjourning the appeal.
9. Ms Sharma stated that [HS] had been phoned the night before. As a result he purchased a ticket online. His coach would be leaving from Victoria at 1.30pm 'today.'
10. I refused the application for the adjournment. There was no evidence or any document/statement produced in support of the contention that her father in law had lapsed into a coma. Moreover, no attempt was made to interpose [HS]'s evidence at 10 am, at the commencement of the hearing. [HS]'s evidence could have been given before hearing from the appellant. He would accordingly have completed his evidence well before 11am. He had already purchased a ticket online and would accordingly have been able to take the coach from Victoria without any practical difficulties.
11. Ms Sharma had also informed me at the outset that the appellant's father, [OA], intended to give evidence. However, when the hearing resumed she informed the Tribunal that he had since gone to work.
The appellant's evidence
12. The appellant attended the hearing and gave evidence. She adopted her witness statement dated 11 August 2015. Page 3 of that document contains a series of deletions and scribbles in blue ink. Ms Sharma informed me that she had made notes in the statement and had then crossed them out. The statements produced are those that were before the First-tier Tribunal. However, they were not in the appellant's bundle and consequently Ms Sharma had to provide copies from her own set of documents.
13. The appellant stated that she is a national of Ghana, born on 23 January 1984. She resides at [ ], Thornton Heath, Croydon.
14. She entered the UK on 22 July on a visitor's visa valid until 10 January 2007. She returned prior to the expiry of her visa and re-entered the UK on 3 July 2007 with a multiple visitor's visa valid from 7 June 2007 until 7 June 2009.
15. She stated that "since this time" she met her partner, [HS], a French national residing and working in the UK. She initially met him on 6 March 2009 at the West Croydon train station. They exchanged numbers. This then developed into a relationship and progressed to their marriage which took place in Ghana by proxy on 25 August 2010. Their respective family members "accepted the marriage on our behalf."
16. They do not have children together but plan on having children in the future.
17. The First-tier Tribunal had dismissed her appeal as she had produced no evidence that French law recognised her marriage as a valid marriage. Nevertheless, as noted, permission to appeal was granted on the basis that the Judge failed to make alternative findings as to whether the appellant was likely to be in a durable relationship for the purpose of Regulation 8(5) of the 2006 Regulations.
18. The appellant asserted that they are in a durable and subsisting relationship and prior to the date of her statement dated 11 August 2015 have been living together as a couple for over two years. She asserts that documentary proof has also been produced.
19. In her supplementary evidence in chief, she said that she and her husband moved in to the address in August 2010. The property is occupied by the appellant and her husband as well as her father and stepmother. There are three bedrooms. Her father and stepmother occupy one room and she and her husband another. There is also a small room for storage. They have lived there continuously.
20. She identified the mortgage documents in respect of the property at page 300 of the bundle. The mortgage is paid by her father.
21. There is a letter written to her father by Santander dated January 2014 in which the annual mortgage statement for 2013 was provided. The mortgage relates to the property at [ ], in Croydon. She said that her stepmother makes payments for gas and the like. The appellant's husband makes contributions towards "energy." He also does shopping for the household.
22. She and her husband do not have any joint bank accounts. They have separate account; hers is a Lloyds account which was opened when she first came to the UK.
23. She produced the original document of an insurance policy from Legal and General, taken out on 29 June 2012 in the name of her and her husband. A copy of that document is provided at B391-2. The lives assured are the appellant and her husband. The term assurance is for 30 years. The policy start date was 29 June 2012 and the expiry date is 29 June 2042.
24. When asked what their "joint interests" were she replied that they watch movies together; they go to church together. She repeated that they have lunch and watch movies in the afternoon.
25. Her husband does 12 hour shifts each day. He works at a school as a cleaner. The school is situated in the city. He leaves at 6pm and returns at 6am, Mondays to Fridays.
26. She works for about 8 hours a day, on Mondays, Tuesdays, Wednesdays, Thursdays and Saturday. She is required to do 25 hours a week but sometimes does overtime if it is available. She sometimes does 30 hours a week. Ms Sharma produced a "certificate of application" from the Home Office dated 11 January 2016 in which it is stated that the appellant is permitted to accept offers of employment in the UK whilst her application is under consideration. This will continue until her appeal rights are exhausted.
27. She was asked with whom they celebrate family occasions. On Christmas, they are usually together with her stepmother, father and friends.
28. Her husband does not often go to visit his father in France. He has a younger sister. She has not met her. She has spoken to them on the phone. She last spoke to her mother in law last month when her husband called her. They took the opportunity to speak to her as well.
29. She confirmed that they plan to have children. They have tried to have children but this has not as yet been successful. There was an occasion in May/June 2015 that she became pregnant. She then went to the hospital. She was scanned and asked to return for another scan. That evening however, there was a "blood discharge." They told her that she had lost the pregnancy. She did not keep the letter from the hospital relating to the pregnancy. She has been given medication.
30. Her husband gave her a watch as a present on her birthday. Last year she made a meal for him on his birthday.
31. She claimed that their relationship is genuine; they have lived together and are planning to have children.
32. She was cross-examined. She accepted that she had been granted a holiday working visa - a multiple working holiday visa valid from 7 June 2007 until 7 June 2009. She was also issued a visitor's visa valid from 10 July 2006 until 10 January 2007. Copies of the respective visas are produced at pages 130-131.
33. She was asked why after the expiry of her visa in June 2009 she did not then seek to renew it. She said she had met her husband in 2009, i.e. about three months prior to its expiry. They planned to marry in May or June 2009. They went to her father's house and spoke to her father. They then "took it on from there."
34. She did not try to renew the visa on a different basis "because I was still here."
35. She does not know when her father moved to [ ], Thornton Heath, Croydon. Ever since she came, 'he was there'. That was as far back as 2006.
36. Her father has not lived anywhere else since her arrival. He has returned to Ghana in the last two years. He went for a four week holiday in 2014. He also went before that but she cannot remember when. Her father is a British citizen.
37. Her husband's family live in Paris. She does not know the address where they live. She is "not good in French." Her father in law has been resident in Paris throughout their relationship.
38. She was referred to the statutory declaration executed before the High Court of Justice in Accra, Ghana, dated 29 June 2012. A copy of the declaration is produced in the bundle. In the declaration, her father has given an address in the greater Accra region of Ghana. Mr Whitwell asked why he gave an address in Ghana. She said that is his home address "back home." The wedding took place in Ghana and "you have to use the home address in Ghana." His parents are from the Ivory Coast. It was her uncle who "stood in for me" at the marriage.
39. Mr Whitwell asked her why her "future plans" were not properly set out in her witness statement. She claimed that she had not been properly represented. Her plans for the future are that they intend living together and having family together. They also want their own property.
40. She never had a civil ceremony. Her visa had expired and was not able to have such ceremony.
41. When asked whether she had considered living with her husband in France she replied that she does not have the right to go there. She has not considered living in France.
42. It was put to her that her husband may well be her landlord at the property. What evidence is there that he in fact resides there? She repeated that she does live there with her husband. They have been to court together. She explained that in 2012 they withdrew an appeal and made a fresh application. That took place the day before the actual hearing.
43. She attended a court with her husband "near Heathrow." She cannot remember the date that they attended the court hearing.
44. Mr Whitwell referred her to page 135 of the bundle which contains her husband's national identity card. That shows that his card was renewed on 17 April 2012. He gave an address in France, [ ], Vitery Sur Seine. She was asked why he would renew his document with that address if he had been living with the appellant. She said his family lives in Paris. She knows that he renewed his identity document.
45. When questioned why her husband was not in attendance she explained that his mother telephoned at 9pm the night before informing him that it looked as though his father is in a coma. His mother was crying. Her husband is "her first born". She asked him to be there because this situation was bad.
46. Her husband told her that his father had been at home the day before and was not feeling well on the Monday. He had a headache. On Tuesday morning he did not respond well. His mother tried to "wake him up" but this was not successful. An ambulance was called and he was then rushed to hospital. His mother tried to call her son on his mobile number but could not get through. She then phoned him in the evening.
47. He then decided to purchase a ticket to France. A flight to France would be too expensive. He had to take a coach "this morning". The coach leaves at 1.30pm from Victoria. He spoke to her earlier this morning and told her that she should inform his barrister about this.
48. Mr Whitwell put to her that as his bus was only going to leave at 1.30pm why would he be waiting at the station at 10.30am? She said that he had not yet gone to Victoria when she left home.
49. In re-examination, she stated that her husband had to be at the station by 12.30pm. The ticket had been purchased the night before.
50. She said that she has made three applications when she was represented by Justice and Law Solicitors.
51. She was asked why she did not attend the hearing of one of the appeals. She said her solicitor said that it would be better to "put in a new application" because of the problems regarding her husband's earnings. They accordingly amended her application so that his company would now pay his wages into his account. There was thus a new application made in 2013.
The determination of First-tier Tribunal Judge Rastogi: 22 April 2013
52. I was provided with the determination and reasons of the appellant's appeal before First-tier Tribunal Judge Rastogi, promulgated on 22 April 2013. She appealed against the decision of the respondent dated 2 January 2013 refusing her application on the basis that she had failed to satisfy the respondent that her husband is a qualified person or that she is his spouse under the 2006 Regulations. Although she had requested an oral hearing the appellant did not attend the hearing. Nor was she represented.
53. Judge Rastogi found that [HS]'s wage slips were not corroborated by bank statements showing payments of his wages into the account. Nor had the appellant satisfied the respondent that they were in a genuine and subsisting relationship, particularly taking into account that she was an overstayer at the time of their marriage.
54. The Judge was asked to treat her absence from the hearing as damaging to her credibility. Although he was not told of any reasons why she did not attend, that factor alone would not justify the making of such a finding. He did however consider the effect of her absence on the weight he was able to attach to the evidence that she has provided.
55. The Judge was satisfied that on the balance of probabilities, her husband lived at his Weybridge Road address. There were bank statements provided, including a letter from Love Eternal, a wage slip and a letter from Legal and General, all addressed to him at that address.
56. The refusal letter did not expressly use the words "marriage of convenience" but simply concluded that "this proxy marriage has been entered into merely to remain in the UK." As evidence for that assertion, the respondent relied on the appellant's remaining in the UK from 7 June 2009 as an overstayer, and the marriage taking place whilst she was overstaying. Moreover, the Judge relied on the absence of proof as to the subsisting nature of the marriage.
57. The appellant did not submit a witness statement within the proceedings and did not attend to give evidence.
58. Based on that evidence, the Judge was satisfied that the respondent had discharged the evidential burden on her regarding the marriage being one of convenience. It fell to the appellant to satisfy the Judge that it had not been a marriage of convenience.
59. She has submitted a life insurance policy in their joint names dated 29 June 2012, (which is the document I referred to earlier). That policy was taken out seven weeks prior to the application being made, and two years after their marriage. The Judge did not feel able to accept the fact of the policy alone as sufficient to satisfy him that the appellant was in a genuine and subsisting marriage with [HS].
60. Moreover, the appellant failed to submit any additional evidence to address the respondent's concerns as to the quality of the marriage raised in the refusal letter. The lack of such evidence taken together with the fact that she undertook the marriage whilst an overstayer in the UK and the additional suspicions about the timing of the life assurance policy meant that he was unable to find that the appellant had discharged the burden upon her to show that the marriage is not one of convenience, which he found it was [24].
61. Judge Rastogi also found that he did not have sufficient evidence to satisfy himself that they are in a durable relationship to bring her within the definition of an extended family member pursuant to Regulation 8(5).
Submissions
62. Mr Whitwell relied on the reasons for refusal and in particular those set out from pages 12-15 where it is noted that she had made previous applications for a residence card on 21 August 2012 and 4 April 2013, both of which had been refused. She had provided similar evidence.
63. Other than providing up to date bank statements and utility bills, she has provided nothing new to show that they are in a durable relationship. Although utility bills suggest that they are registered at the same address, no evidence of any documents in joint names have been provided. There thus continued to be insufficient evidence to suggest that they are in a durable relationship.
64. Mr Whitwell acknowledged that when looking at the history more generally, 'this may cut both ways'. The appellant has made applications for the past three and a half years. Although this might appear to be a "weighty factor" it is in fact not so. The "flip side" is that on a number of occasions, she has tried to meet the requirements and has not succeeded.
65. When considering her credibility, regard must be had to the fact that the application has been made by a person who overstayed. Furthermore, aspects of her evidence were vague, including the dates that she attended the hearing. She was also vague as to the family's address in France. That is to be contrasted with the clarity in her witness statement at paragraphs 8-10 regarding the precise date and times that they initially met including the venue: this amounted to a "minute by minute account".
66. Moreover, it is important to note what evidence is not presented. The appellant's bundle contains six photographs, four of which show the couple. These are at pages 395-397. Moreover, the appellant's father has not attended to support her, nor has her partner. Their statements have accordingly not been tested.
67. The value of the premiums relating to the joint insurance policy are small. Accordingly, not much weight should be placed on that document as a source of corroboration.
68. It is also to be taken into account that her husband could be a tenant at this house and that they are not residing as a couple. That is the limit of the documentation that has been provided. Moreover, the appellant has not met her in laws. They have never visited the UK.
69. The limit of their plans for the future is to have children. Such limited focus on their future plans also goes to the issue of durability.
70. On behalf of the appellant, Ms Sharma contended that the fact that three applications have been made indicates that theirs is a genuine relationship that has existed since 2009.
71. The Home Office has been aware of the earlier applications but has never made any family visit. Nor were the parties ever invited to attend an interview by Home Office officials. There has been ample opportunity for this to be done.
72. With regard to joint finances, the appellant has only worked for the last year. Both of them already had bank statements before they met. These have continued to run.
73. With regard to the payment of bills, it is clear that the appellant's father owns the property. It is he who pays the mortgage. If the rooms were rented to them, she submitted that it would not be reasonable to expect the tenant to pay the entire set of bills. There has never been any need for joint accounts. Each pays whatever he is responsible for. The fact is that they have lived together since 2010 in the appellant's father's home. This is confirmed in her father's witness statement.
74. The appellant was of the view that she could not have her marriage registered in the UK as she did not have a visa at the time. They had however gone through a proxy marriage in 2010. It is not disputed that the customary marriage took place.
75. As to the husband's absence from the hearing, he purchased a single ticket to Paris where his family is. His father became ill on Monday evening. He did not attend the earlier hearing because the appellant was kept waiting for some time. Ms Sharma accepts that it is unfortunate that no contact was made with the solicitors relating to his father's illness.
76. She submitted that they have shown that they spend time together in the home. They watch TV and have meals together. Christmas is a family occasion. How they choose to live is a matter for them.
77. Both work long hours. The fact that the appellant did not know the French address is understandable as she had not had the opportunity to visit them there.
78. She has lived at the same premises with her father. They are well settled here and there is no reason for them to re-start their lives in France.
79. With regard to the hearing on 7 April 2016 her husband was unable to attend as he had food poisoning and was unwell.
Assessment
80. There is no definition in the 2006 Regulations in respect of "a durable relationship". Whether or not the appellant is in a durable relationship is a matter to be considered on the basis of the evidence as a whole.
81. I have had regard to Mr Whitwell's submissions as to why theirs is not a durable relationship, including his submissions regarding the non-attendance at the hearing by the appellant's husband and father.
82. Moreover, as he submitted, there is not much evidence by way of documentation relating to any joint accounts at the relevant address.
83. I have also had regard to the fact that there have been three applications made by the appellant under the 2006 Regulations. I have considered the decision of First-tier Tribunal Judge Rastogi to which I have referred.
84. The Devaseelan guidelines were approved by the Court of Appeal in Djebbar v SSHD [2004] EWCA Civ 804. The provision of guidance on how appellate bodies should deal with the fact of an earlier unsuccessful application when deciding a later one was essential to ensure consistency of approach. The Court emphasised that the most important feature of the guidance is that the fundamental obligation of every immigration judge independently to decide each new application on its own individual merits was preserved; the guidelines were not written in the language of res judicata or estoppel: Djebbar, supra at [15].
85. The guidelines provide that matters arising since the first appellate decision and facts which were not relevant to the issues before the first Immigration Judge can be determined by the second.
86. The first determination is generally to be regarded by the second Immigration Judge as an authoritative determination of the issues of facts that were before the first appellate body. Generally, the second Judge should not revisit findings of fact made by the first on the basis of evidence that was available to the appellant at the time of the first hearing. Those facts may be revisited in the light of evidence that was not available to the appellant at the time of the first appeal. There may be revisited where the circumstances of the first appeal were such that it would be right for the second appellant body to treat the first determination as if it had never been made.
87. It may also be appropriate for the second appellate body to revisit earlier credibility findings if the issue of credibility remains arguably live.
88. If the second appeal contains asylum or human rights grounds, the second appellate body in applying the Devaseelan guidelines would have to be mindful of the obligations to take account of all relevant material and to consider the case with the most anxious scrutiny.
89. I note that Judge Rastogi took into account that the appellant did not submit a witness statement within those proceedings. Nor did she attend to give evidence. The Judge noted that although the respondent raised concerns about the quality of the marriage in the refusal letter she had failed to submit any additional evidence to address those concerns. The lack of such evidence coupled with the fact that she undertook the marriage whilst an overstayer and the additional suspicion about the timing of the life assurance policy meant that he was not able to find that she had discharged the burden upon her to show that the marriage was not one of convenience.
90. There was thus insufficient evidence to satisfy him that they are in a durable relationship for the purpose of Regulation 8(5).
91. I take into consideration that some three years have passed since the promulgation of the determination of Judge Rastogi. In that period, the appellant has persisted in her efforts in this regard, and has continued to be supported by her husband. That resulted in a further decision of the First-tier Tribunal Watson promulgated on 4 September 2015, which is the subject matter of this appeal. There the Judge failed to consider the appeal under Regulation 8(5) although it had been relied on.
92. I note that neither Judge made any finding as to the credibility of the appellant's claim under Regulation 8(5). Judge Rastogi found that there was a lack of evidence produced which, together with the fact that she undertook the marriage whilst an overstayer, resulted in his finding that she failed to discharge the burden of showing that her marriage was not one of convenience. First-tier Tribunal Judge Watson did not make any reference to the earlier dismissal of her appeal by Judge Rastogi on the basis that she had not shown that she had discharged the burden that her marriage was not one of convenience.
93. In her latest application, the appellant provided a marriage certificate dated 4 July 2012 showing that the date of marriage was 25 August 2010. That was the same marriage and certificate referred to and relied on in her appeal before Judge Rastogi [2].
94. I may not revisit findings of fact made by Judge Rastogi on the basis of evidence that was available to the appellant at the date of that hearing, namely on 5 April 2013.
95. However, I am entitled to revisit those facts in the light of the evidence and circumstances which have occurred subsequently. I note that no credibility findings were made against the appellant, who had not even submitted a witness statement in her appeal before Judge Rastogi.
96. The appellant has given fairly detailed evidence relating to the inception of her relationship with [HS]. She has also contended that they have continued to live together as a couple for almost three years at the address in Thornton Heath.
97. I have also taken into account her evidence that they plan having children in the future. She disclosed during her oral evidence that she had in fact suffered a miscarriage in or about May or June 2015. She stated that they had planned to have children and have struggled to conceive. She became pregnant but after attending hospital and having scans taken, she suffered a discharge that night and miscarried.
98. On the other hand I note that she has not kept any documentation from the hospital in that regard. She stated that she was given medication. No attempt has been made by her solicitors to obtain such documentation. Her solicitors have in the past shown that they have not been particularly diligent in preparing and producing documentation required in her appeals.
99. The appellant was not cross-examined on her evidence relating to that miscarriage. Notwithstanding the absence of supporting documentation in this respect, I have no reason to doubt the credibility of the appellant's evidence that she and her husband have been trying to start a family. I find that she did suffer a miscarriage in the middle of 2015.
100. It is also not challenged that the appellant and her husband reside at the property in Thornton Heath. Mr Whitwell submitted that the appellant and her husband could be residing at the property as separate tenants and not as a couple.
101. In that respect, I accept that there has been little by way of documentation apart from the Legal and General Assurance policy referred to showing they are joint parties to any agreement, including utility bills and the like.
102. I have had regard to the appellant's evidence showing that she as well as her husband have received letters and bank statements and bills at the same address. Her husband's bank statements from Lloyds TSB are set out at pages 168-294. His statements as well as letters are sent to that address. He has produced bank statements up to the end of June 2015. The appellant made her application on 4 January 2015 and was refused on 8 June 2015.
103. I have also had regard to her sponsor's P60 to April 2015 relating to his employment with Axis CSS Monthly Cleaning Staff. I note that EDF bills sent to [HS] at the address as set out at pages 316 and following.
104. The appellant has stated that she and her husband are responsible for contributions to the household expenses. She purchases various household necessities and he pays the various bills.
105. I have taken into account Mr Whitwell's submissions that neither the appellant's sponsor or her father attended the hearing. Moreover, her husband was not able to attend the earlier hearing as he claimed to have been suffering from food poisoning.
106. The appellant has given an explanation during her evidence explaining why her husband has not been able to attend the hearing on her behalf, even though he had originally intended to appear. That is because of a current unexpected illness of his father who lapsed into a coma the day prior to the hearing.
107. Whilst I accept that his father had recently become ill, I do not find the sponsor's assertion that he had to ensure that he was at Victoria station in order to depart at 1.30 to be persuasive. He did not explain why he could still not have attended the hearing earlier in order to give evidence.
108. I also note that the appellant's father did attend the hearing with the intention of giving live evidence in support of his daughter's appeal. He has made a witness statement confirming the appellant's assertions as to the relationship with her husband. However, he departed shortly before the luncheon adjournment as he is employed as a bus driver and his shift began in the early afternoon.
109. Notwithstanding Mr Whitwell's submissions about the lack of potential corroboration from those sources, I find their failure to give evidence was not in any way wilful. I accept the evidence of the appellant, who was not challenged in this respect, that her husband made a last minute decision to go to Paris in order to be with his parents. I also find that the appellant's father has always been willing and able to give evidence in this case. However, he was unable to remain in attendance as he would then miss his shift. It is true that he might have organised with his employers at a much earlier stage to have a day's leave in order to attend the hearing and give evidence. However, I do not find that their failure to attend the hearing to give evidence in these circumstances described undermines the credibility of the appellant's own case.
110. As Mr Whitwell submitted, the result of their non attendance is that their statements supporting the appellant's case have not been tested.
111. I am satisfied from the evidence adduced, including the documentary evidence, that the appellant and her sponsor have continued to reside at the address in Thornton Heath following the dismissal of the appellant's appeal on 22 April 2013. Moreover, updating documentation has been provided since that decision.
112. I also note that despite several applications made in which the appellant asserted that they are in a durable relationship, the respondent has not attended the address on any occasion. Nor have they ever been interviewed regarding their continued assertions that they are in a subsisting relationship.
113. Having regard to the evidence as a whole, I find that the appellant has shown on the balance of probabilities that she has been in a relationship with her husband for a lengthy period since they met. I also find that the appellant's marriage is not one of convenience but has endured.
114. I accordingly find that the claimant is an extended family member for the purpose of the 2006 Regulations.
115. I have also had regard to Regulation 17(4) of the 2006 Regulations. This provides that the secretary of state "may" issue a residence card to an extended family member not falling within Regulation 7(3) who is not an EEA national on application if the relevant EEA national in relation to the extended family member is a qualified person (which the appellant's husband is); and in all the circumstances it appears to the secretary of state appropriate to issue a residence card.
116. Accordingly, Regulation 17(4) provides a discretion to the respondent relating to the issue of a residence card in these circumstances.
117. In the appellant's case, the secretary of state has not considered the exercise of such discretion having refused her application.
118. Accordingly, the secretary of state is in the first instance required to consider the exercise of discretion before the Tribunal is itself entitled to consider the exercise of discretion: FD (EEA Discretion - Basis of Appeal) Algeria [2007] UKAIT 49.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law. I set it aside and substitute for that decision a decision allowing the appellant's appeal under Regulation 8(5) of the 2006 Regulations to the extent that her application for an EEA residence card remains outstanding before the secretary of state.
Signed Date 16 June 2016
Deputy Upper Tribunal Judge Mailer