Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/25567/2015
IA/25568/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision Promulgated
On 5th December 2016
On 24th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

LACHHMAN SINGH First Appellant
NAVJOT SINGH Second Appellant
(ANONYMITY DIRECTION NOT MADE)

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: In person
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS
1. The first appellant is the father of the second appellant. They are both citizens of India born, respectively, on 1st January 1971 and 18th July 1997. They appealed against the decisions of the respondent made on 29th June 2015 to revoke the first appellant's residence card and to refuse to grant a residence card to the second appellant applying the provisions of the Immigration (European Economic Area) Regulations 2006.
2. The respondent revoked the residence card for the first appellant because it was considered that he had entered into a marriage of convenience with his wife, a citizen of Portugal, on 1st October 2012.
3. In a renewed application for permission, Upper Tribunal Judge Rimington gave permission to the appellants to appeal against the decision of Judge of the First-tier Tribunal Lambert in which she dismissed the appeals against the decisions of the respondent to which I have referred.
4. In granting permission Upper Tribunal Judge Rimington noted that the grounds of application asserted that the judge had misapplied the case law culminating in Rosa [2016] EWCA Civ 14 (burden of proof) and failed to take into account material evidence and considerations. She considered that, although the judge had referred to the adducing of evidence of the parties' intentions at the time of the marriage, it was arguable that over emphasis was placed on events subsequent to the marriage and also there was a failure to address the maternity evidence showing the first appellant to be the partner of the sponsor and HMRC evidence in relation to the sponsor which had been acknowledged by the respondent. Further, Judge Rimington noted that no formal interview record was produced only minute notes which should have been considered following the decision of the Upper Tribunal in Miah (Interviewers comments: disclosure: fairness) [2014] UKUT 00515 (IAC).
The Hearing
5. At the hearing the appellants were unrepresented. I therefore explained the purpose of the hearing to them and assisted them to make comment, initially, about the existence or otherwise of an error on a point of law in the First-tier Judge's decision. The summary of the comments made by the first appellant are set out, below.
6. Mr Bates argued that the judge had adopted the right approach to assessment of the marriage of convenience issue acknowledging the burden of proof placed upon the respondent. He referred to paragraph 3.5 of the decision in which the judge also makes reference to relevant case law. He thought that the reasoning set out in paragraph 3.7 was both cogent and adequate to reach the conclusion that the parties had entered into a marriage of convenience. As to the suggestion that a proper record of interview had not been produced, he thought the judge had carefully evaluated the minute sheets produced by the respondent even if these did not amount to a formal interview record. Whilst the judge had considered evidence relating to events after the date of marriage she was not wrong to conclude that such evidence undermined the intentions of the parties at the time of marriage.
7. The first appellant drew attention to the evidence which showed his wife had two unfortunate miscarriages during the course of their relationship. He submitted that the judge was wrong to dismiss the photographic evidence to which she refers in paragraph 3.8. These photographs were shown to me and were stated to show the parties before and after marriage. He said that some had been sent with the original application. He also emphasised that there was evidence to show that he and his wife had spent two years together living in Spain before they married. He further submitted that the judge had not paid attention to the evidence of an EEA family permit granted to the first appellant from 20th February 2014 and his possession of a Spanish residence card valid to 30th September 2017.
8. The first appellant also referred to an alleged incident during the hearing when the judge had cause to reprimand his Counsel. Mr Bates confirmed that the respondent's record also showed that there had been an occasion when Counsel had interrupted the judge in an "aggressive" manner. However, as I indicated to both parties, there was no evidence before me to suggest that this incident had in anyway influenced the judge in reaching her reasoned findings. In particular, there had been no formal complaint made about Counsel's behaviour.
9. The first appellant concluded his submissions by emphasising that he believed the judge had plenty of evidence of a genuine relationship between him and his wife both before and after their marriage. Mr Bates also indicated that there was no intention on the part of the respondent to remove the parties at present.
Conclusions
10. In Rosa, at paragraph 41, the Court of Appeal made it clear that, in marriage of convenience cases, the Tribunal is able to look at evidence concerning the relationship between appellant and husband after the date of marriage as any evidence from that time is capable of casting light on the intentions of the parties at the time of marriage. The judge was, therefore, not wrong to adopt that course. However, the decision suggests that the judge did not take into consideration significant and relevant evidence which, despite claimed inconsistencies in evidence during interview, tended to show that the parties were not involved in a marriage of convenience.
11. Paragraph 3.8 reveals that the judge was offered sight of original photographic prints of the parties together said to have been sent to the respondent. It appears that copies of such photographs were not, otherwise, before her. That evidence should not have been rejected without examination. Whilst that evidence, alone, might not have been adequate to displace the respondent's conclusion of a marriage of convenience, there was other evidence which the judge appears to have either ignored or inadequately considered that also suggested that the respondent's allegations might not be made out. In particular, the judge acknowledges in paragraph 3.1, but does not give reasons for rejecting, evidence that the first appellant had been granted a Spanish residence card valid to 30th September 2017 based, I infer, on his marital relationship. There was also evidence before the judge of the unfortunate miscarriages suffered by the first appellant's wife which occurred whilst the parties were living together in Spain and Portugal, the first of such taking place in January 2012 before the parties married in the following October. Further, although the judge fully comments on the format of the minute sheets said to record the interviews with the first appellant and sponsor, they are not in question and answer format so do not record the actual issues put to the interview subject enabling the relevance of the answer to the question to be evaluated. Thus, the judge wrongly placed considerable emphasis on the minute sheet records to reach the conclusion that, despite the existence of evidence to show that the parties had been in a relationship before getting married, the marriage was one of convenience.
12. At paragraph 3.5 of the decision the judge refers to the nature of the burden imposed upon the respondent to prove a marriage of convenience on the basis that it is a marriage "entered into for the predominant purpose of securing residence rights" [my emphasis]. However, In paragraph 10 of Rosa, the Court of Appeal applied the definition of a marriage of convenience used in Article 1 of EC Council Resolution 97/C 382/01 of 4th December 1997 (which was adopted by the House of Lords in R (Baiai) [2008] UKHL 53) which defines it as "a marriage concluded ... with the sole aim of circumventing the Rules on entry and residence of third country nationals ..." [my emphasis]. This definition is again referred to and approved in paragraph 40 of the judgment. There is a difference between "predominant purpose" which allows for other intentions and "sole aim" which does not. Applying the accepted definition was particularly relevant in a case such as this where there was evidence, acknowledged by the judge, that showed that the parties were in a relationship before the date of marriage. It might be difficult to conclude that the marriage, in this case, was entered into for the sole purpose of circumventing the EEA Rules for entry and residence of third country nationals.
13. For the reasons I have given I have reached the conclusion that the decision of the First-tier Tribunal shows errors on points of law such that the decision should be set aside and re-made. As it will be necessary for the evidence to be re-examined I conclude that the matter should be remitted to the First-tier Tribunal for hearing a fresh. This accords with paragraph 7.2(b) of the Practice Statements of the Senior President of Tribunals of 25th September 2012.
DIRECTIONS
14. The appeal is remitted to the First-tier Tribunal sitting at Manchester.
15. The remitted hearing should not be before Judge Lambert.
16. The time estimate for the hearing is two hours.
17. A Portuguese interpreter will be required for the hearing.
18. The hearing will take place on a date to be specified by the Resident Judge.
Anonymity
The First-tier Tribunal did not make an anonymity direction nor was such a direction requested before me.

Signed Date

Deputy Upper Tribunal Judge Garratt