IA/26167/2015

• Status of case: Unreported
• Hearing date: 20 Feb 2017
• Promulgation date: 22 Mar 2017
• Publication date: 8 Mar 2022
• Last updated on: 8 Mar 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: Ia/26167/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 20 February 2017
On 22 March 2017



Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN


Between

Mr MICHAEL EWUSI
(no ANONYMITY DIRECTION MADE)
Appellant
v

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Ms. L. Appiah, Vine Court Chambers instructed by way of direct access
For the Respondent: Mr T. Melvin, Home Office Presenting Officer


DECISION AND REASONS
1. The Appellant is a national of Ghana, born on 3 July 1985. On 24 October 2014, he made an application for a residence card as confirmation of his right to reside in the United Kingdom. This application was refused on 12 June 2015, for reasons set out in a letter dated 22 June 2015. In particular, it was asserted that on 11 March 2015, Immigration Officers visited the address given as the Appellant’s home address when they were informed by an occupant of the property that he had lived there for 4-6 weeks and had never heard of the Appellant or his wife and reliance was placed upon the fact that neither the Appellant nor his wife attended Home Office interviews scheduled for 2 June and 16 June 2015.
2. His appeal came before First tier Tribunal Judge Cox for a decision on the papers on 29 January 2016. In a decision dated 16 February 2016, she dismissed the appeal, on the basis that there was no satisfactory evidence to show that the Appellant lived at the stated home address [28] nor details as to when and how the tenancy was terminated [26]; it was not reasonable for the Appellant and his wife to fail to attend either of the Home Office interviews, scheduled for 2 June 2015 and 16 June 2015 [17]; there was a complete absence of evidence from any friends or family or any independent third party [32] and there was no satisfactory evidence that the Appellant’s wife is a qualified person, given the absence of any contract of employment or satisfactory evidence of employment/job seeking [34].
3. The grounds in support of the application for permission to appeal asserted that the Judge erred materially in law: (i) the Judge’s finding in respect of the former address were unfair and failed to take account of the documentary evidence and the witness statements by the Appellant and Sponsor; (ii) the Judge misdirected himself as to the facts in dispute, given that at [30] the Judge accepted that the Appellant has provided bank statements with his former address; (iii) in failing to make adequate findings as to the evidence that the Sponsor was exercising treaty rights; (iv) in failing to provide adequate reasons for upholding the Respondent’s decision.
4. Permission to appeal was granted by First tier Tribunal Judge Gillespie in a decision dated 16 January 2017, on the basis that the Judge failed to examine whether or not the marriage was lawful, given it took place in Ghana before the Appellant entered the UK; or whether it is one of convenience or whether there was a durable relationship between the parties and that it was arguably inconsistent for the Judge to find that the failure to provide a tenancy agreement or explain when the parties left their previous address detracted from the credibility of the claim in light of the fact that there was copious evidence that the Sponsor had lived at the address for some time and the occupant of the premises had only recently moved in.
Hearing
5. Ms Appiah indicated that she was at a slight disadvantage, having recently been instructed, as she had not seen the Respondent’s refusal decision of 22 June 2015. I provided her with a copy of the core bundle containing the decision. Ms Appiah sought to rely upon the grant of permission to appeal by Judge Gillespie at [3], [4] and at [5]. She submitted that there was some delay in the appeal being considered which meant there was a gap in the evidence but this was not of the Appellant’s making and the Appellant had complied with all the requirements of the Regulations.
6. In his response, Mr Melvin informed me that no rule 24 response had been submitted on behalf of the Respondent. He submitted that the genuineness of the relationship was very much in issue and it is a matter for the Appellant to show that he is genuinely married. He chose and his claimed partner chose not to attend either of the two interviews where the genuineness of the relationship could have been assessed and they chose not to attend the hearing where they could have been expected to answer questions from the Home Office or the Judge. At [16] the Judge clearly states that the burden of proof is on the Appellant and makes findings at [17] and [18] that are open to him to make on the points made in the refusal letter. He submitted that the Judge has gone on to assess all the evidence before him. There was no explanation as to why the ending of the Sponsor’s employment as per the refusal letter took place some days after the application was made and there was also no explanation as to the change of address. The Judge comments on the statements before him from the Appellant and his wife, finding them vague and found that there was no tenancy agreement and no satisfactory evidence. At [32] the Judge found that there was a complete absence of corroborative evidence to show the Appellant and his Sponsor were in a relationship which was a matter that had been raised in the refusal letter. These are the reasons why the Judge drew his conclusion that the appeal fell to be dismissed under the EEA Regulations. He submitted that the decision refusing the appeal should be upheld and there was no evidence that the Appellant is in a genuine relationship with a partner who is exercising treaty rights.
7. In response, Ms Appiah submitted that in terms of the evidence before the Judge there were photographs and a marriage certificate confirming that the Appellant and his Sponsor are married. It is clear from the Respondent’s refusal decision that the application was refused under Regulations 2 and 20(B)(4) and (5) of the Immigration (EEA) Regulations 2006 (as amended) and thus one can surmise the Respondent’s position that it is a marriage of convenience even though this was not expressly set out and is not clear. She submitted that the Judge’s findings are erroneous in that the Judge has used the wrong test and has gone down the route of considering the appeal incorrectly. He makes no reference to regulation 20(B)(5) and it is not clear if the Judge had the Regulation in mind. Ms Appiah added, in response to my enquiry, that the Appellant’s wife had not attended the hearing in the Upper Tribunal because she is working and that the couple were living in Milton Keynes and the Sponsor is working part time and the Appellant is not allowed to work. She stated that she was instructed on a direct access basis and had advised that it was an error of law hearing and the Sponsor did not need to attend the hearing.
Decision
8. I find no material error of law in the Judge’s decision. This was an appeal which was determined on the papers at the request of the Appellant, in circumstances where he and his Sponsor were not living at the address they provided to the Respondent when a visit took place on 11 March 2015 and had failed to attend an interview with the Home Office on either 2 June and 16 June 2015. Thus the Respondent had no opportunity to test the genuineness of the relationship, which she is entitled to do pursuant to regulation 20B(3) of the Immigration (EEA) Regulations 2006, as amended by the 2014 Regulations. The preliminary point made by the Appellant in respect of the provisions of regulation 20B, recorded by the Judge at [14] is nothing to the point, given that the Appellant failed to attend at either scheduled interview with the Home Office nor provide adequate information to confirm the genuineness of his marriage with an EEA national. The Judge was entitled to find at [17] that it was not reasonable for the Appellant and his wife to fail to attend either Home Office interview. The Judge was further entitled to find at [29] that, despite the “copious” evidence that the EEA national spouse had resided at the former address for some time, there was no satisfactory evidence that the Appellant has lived there, even taking into account copy bank statements from Barclays Bank for periods in 2013 and 2014 which showed only that he used it as an address [30].
9. The Judge was further entitled to place weight on the “complete absence of evidence from any friends or family” at [32] and the fact that there was nothing before him from any independent third party acknowledging their knowledge of the couple and at [33] that all these issues were plain from the refusal decision and that when taken together there is no satisfactory evidence that the Appellant is a member of the qualified person’s family. I find that it was further open to the Judge to find, in the absence of evidence, that the Appellant had failed to prove that his wife is a qualified person. I was not impressed by the absence of the Sponsor at the hearing before the Upper Tribunal. I was informed by Ms Appiah that this was because the Sponsor was working and that she advised her there was no need for her attendance because it was an error of law hearing. This was wholly unwise given both the nature of the issues in the appeal and in light of the standard directions at [4] which were served on 20 January 2017 and which clearly state that: “There is a presumption that, in the event of the Tribunal deciding that the decision of the FtT is to be set aside as erroneous in law, the re-making of the decision will take place at the same hearing.”
10. For the reasons set out above, I find no error of law material or otherwise in the decision of First tier Tribunal Judge Cox.



Rebecca Chapman

Deputy Upper Tribunal Judge Chapman

20 March 2017