Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/25139/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 November 2017
On 17 November 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MURRAY

Between

MR OLUWASEUN MICHAEL oke
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: No representation
For the Respondent: Mr Nath, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Nigeria born on 12 November 1980. He appealed against a decision of the respondent dated 19 June 2016 refusing the appellant's application for a residence card as confirmation of a right to reside in the United Kingdom as the spouse of an EEA national, Jesica Amador Garcia, who is a Spanish national. His appeal was heard by Judge of the First-Tier Tribunal Swinnerton on the papers. The appeal was dismissed in a decision promulgated on 23 December 2016.

2. An application for permission to appeal was lodged with the First-Tier Tribunal but permission was not granted. A further application for permission to appeal was lodged with the Upper Tribunal and permission to appeal was granted on 8 September 2017 by Upper Tribunal Judge Bruce. The permission states that the grounds assert that the First-Tier Tribunal misunderstood Nigerian law as it relates to customary marriage as well as the nature of the documentary evidence before it. It is asserted that had clarification been sought the decision might have been different. The permission was granted so that these arguments could be considered by the Upper Tribunal and there is a direction in the permission which states that both parties should attend the first hearing of this appeal prepared to make submissions on the effect of the relevant Nigerian statutes, including the Births, Deaths Etc (Compulsory Registration) Act 1992 (as amended) and the Marriage Act 1990.

3. There is a lengthy Rule 24 response from the respondent which states that the Judge considered all the evidence and gave adequate reasons for the findings he reached. The response states that the appellant chose for his appeal to be heard on the papers which is a pity as had he and his wife appeared at the hearing, questions pertaining to the marriage could have been asked and the appellant could have offered clarification on the Nigerian law which his grounds rely upon. There is a request in the Rule 24 response that the London South Law Chambers who drafted the grounds for the appellant and are representing the appellant, let all parties have their submissions prior to the hearing, however not only has that not happened, there was also no appearance either by the appellant or by a representative.

The Hearing

4. The Presenting Officer submitted that what has to be decided is whether the marriage has been registered. He submitted that the relevant registration documents have not been provided but had they been provided and had it been shown that the marriage was properly registered the appeal could have been be allowed.

5. I was referred to the respondent's bundle and the Lagos State Government of Nigeria Grade A Customary Court Agege Certificate of Registration of Customary Marriage. I was also referred to paragraph 17 of the decision in which it is noted that this certificate is undated and that the registration document provided with the application and the registration document now provided for the purpose of the appeal are from the same source - the Grade A Customary Court but are in a completely different format and no explanation has been provided by the appellant as to why the document now provided was not provided previously, at the time of the application in November 2013, as the document is dated one and half years before that. At paragraph 18 the Judge refers to the Nigerian Births, Deaths Etc Compulsory Registration Act 1992 (as amended) and notes the details required for registration. The Judge finds that the Marriage Registration Certificate dated 10 April 2012 contains minimal details and does not contain the required details pertaining to Nigerian law and because of this he does not accept that the Marriage Registration Certificate provided, complies with the necessary requirements of Nigerian law. The Judge finds that because of this the appellant's proxy marriage will not be regarded as a valid marriage in Nigeria.

6. Having considered the decision of the First-Tier Tribunal Judge Swinnerton I can find no error therein. Had the appellant attended the hearing questions might have been asked which he could have answered, which might well have clarified the situation further, but based on what was before the Immigration Judge at the First-Tier Hearing I find that there is no error of law in the decision.

7. The grounds indicate that the Judge misunderstood the difference between the document in the respondent's bundle and the documents in the appellant's bundle, but I do not find that that is the case. What the Judge has found is that the Certificate of Registration does not fulfil the required terms.

Notice of Decision

8. I find that there is no material error of law in Judge Swinnerton's decision promulgated on 23 December 2016 and that his decision must stand.

9. Anonymity has not been directed.

Signed Date

Deputy Upper Tribunal Judge Murray