Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/26825/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 April 2017
On 10 April 2017

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

ZUHAIB KAMAL
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr D. Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Pakistan, born in 1986. On 6 January 2014 he made an application for a residence card as the spouse of an EEA national, a Czech citizen. That application was refused in a decision dated 16 June 2014. The respondent concluded that the appellant’s marriage was one of convenience.
2. His appeal came before First-tier Tribunal Judge C.M. Phillips (“the FtJ”) on 22 June 2016 whereby she dismissed the appeal, finding that the marriage was indeed one of convenience.
3. The grounds upon which permission was sought, in summary, were that the FtJ erred in her conclusion that the relationship was not genuine. It is said in the grounds that the appellant gave consistent evidence as regards the relationship and there were no significant discrepancies in the interviews of the appellant and his spouse.
4. A second ground of appeal related to documents that were sent to the FtT after the hearing, the FtJ having directed that submissions in relation to the interview summary be filed no later than 14 days after the hearing. The FtJ proceeded to determine the appeal without reference to the submissions and documents that were in fact provided, although the FtJ said that no submissions had been received.
5. The grant of permission considered only the issue of the submissions/documents received after the hearing. However, permission was not expressly limited to that ground and I consider therefore, that all grounds are arguable.
6. In order to put my decision into context, it is necessary to summarise other aspects of the hearing before the FtJ and her decision.
The FtJ’s decision
7. The FtJ gave a full summary of the respondent’s reasons for refusing the application for a residence card, and the appellant’s grounds of appeal. She noted that the appellant’s spouse did not attend the hearing, and that it was accepted on behalf of the appellant that the marriage had broken down.
8. As regards the interviews of the appellant and his spouse, she referred to the fact that at the hearing the question of the interviewer’s notes was raised at the hearing on behalf of the appellant, but not pursued. After the hearing however, she noticed that the interviewer’s notes were in fact on the Tribunal’s file. Accordingly, the FtJ issued the directions to which I have referred.
9. The directions that were sent out are on the Tribunal file. They are dated 12 July 2016. The directions are reproduced below exactly as sent, under the heading “Directions”:
“The Immigration Judge as instructed as follows:
On 19 December 2015 DIJ Shaerf instructed that a copy of the interview summary sheet to appellants rep (Law Lane) I can find no record confirming this was done and reps say they did not receive this.
1. A copy is attached.
2. Appellants representatives are allowed 14 working days from date directions sent to lodge any further representations. If none are received, I will decide the appeal and issue my decision recording the contents of these directions and including reference to the summary.”
10. The directions were typed and sent by a member of administrative staff from the FtJ’s manuscript instructions.
11. At [25] of her decision she referred to the directions, stating that she had allowed 14 days for the appellant’s representatives “to make further submissions on the interview Summary Sheet”. She stated that given that no further representations had been received she proceeded to determine the appeal, finding that the appellant’s right to a fair hearing had been adequately protected in keeping with the overriding principle of fairness.
12. The FtJ gave a detailed summary of the documentary and oral evidence, and the submissions made on behalf of the appellant (the respondent not having been represented). She accepted that the marriage between the appellant and his spouse had taken place on 29 November 2013, and that one of the addresses (Canberra Road) at which they are said to have lived, is the appellant’s uncle’s address.
13. She referred to the appellant’s and his spouse’s payslips, bank statements, a divorce petition, and other documents. She found that although the appellant had filed for divorce from his EEA national spouse, it was surprising that she did not provide any evidence to support the claim that she did not enter into a marriage of convenience.
14. She concluded at [39] that there was sufficient evidence to raise a reasonable suspicion that theirs was a marriage of convenience. She summarised the evidence giving rise to that suspicion, as indicated in the interviews and the respondent’s decision, namely that there was a short period between their meeting and moving in together, the evidence as to what they said they did in their spare time, whether the appellant spoke to his spouse’s father before proposing to her, that the appellant did not disclose to the respondent that he had stopped studying when still on a student visa, and “discrepancies” in the evidence of addresses.
15. She made detailed findings in relation to the evidence as to the addresses at which they lived, concluding that their evidence was inconsistent, and inconsistent with some of the documentary evidence. She referred to evidence being lacking in respect of the Canberra Road address, for example, no tenancy agreement and no evidence from any other occupant of that address.
16. As regards the interviews, she noted at [56] that out of a total of 224 questions of the appellant and 408 questions of his spouse, only a small number had been identified as being inconsistent and inconsistent with the documentary evidence. She found however, that the discrepancies related to significant issues and undermined the claim that the evidential burden had been discharged by the appellant.
17. At [57] she concluded that the interview notes show that the appellant and the sponsor had spent time together and were work colleagues but that the appellant had not satisfactorily addressed the evidence giving rise to the suspicion that theirs was a marriage of convenience.

Submissions
18. The appellant said that although he was still represented by solicitors, he wanted to appear and explain his case himself. I summarise the submissions or arguments advanced by the parties.
19. Mr Clarke submitted that where there was an agreement between the parties as to the submission of evidence post-hearing there was an obligation on a judge to consider that evidence. It was otherwise where there was no such agreement. In this case the FtJ’s directions in relation to submissions after the hearing were limited to the issue of the interview summary sheet. However, the documents and submissions about which complaint is made in relation to the FtJ not having taken them into account, do not deal with the interview summary sheet. Documents were provided in the form of a copy of a tenancy agreement, a letter in respect of that tenancy, and some wedding photos. Those are not matters which related to the FtJ’s directions.
20. I was referred to the decision in SD (treatment of post-hearing evidence) Russia [2008] UKAIT 00037, and to the principles in Ladd v Marshall [1954] 1 WLR 1489. In that context it was relevant to take into account whether the post-hearing evidence was evidence that was available at the time of the hearing before the FtJ.
21. Furthermore, even if the FtJ had taken that evidence into account, it could not have made any difference to the outcome of the appeal. The FtJ had explained why she concluded that the evidential burden had shifted to the appellant and why he had not discharged that burden.
22. The appellant explained that he now had a decree absolute concerning his marriage to his (former) EEA spouse, the decree having been obtained in February of this year.
23. He went on to say that they had taken photographs to the first interview but they were told that they were not needed. On the application for the residence card it was explained why his uncle’s address of Canberra Road was used as a correspondence address.
24. He had not done anything bad in connection with his residence card application, as had been suggested by the Home Office, which is why he is trying to fight the case. It was true that his marriage had broken down, but he did not want to go back to his own country as a guilty person as he had done nothing wrong. In the future he may get married and he does not want anyone to say that he had done something wrong. Everything was genuine and the family came to the wedding.
25. He now has a new relationship. His new partner is from Italy. She may come with him to Pakistan and they may get married there. He had provided a letter from his uncle (for the present hearing), and there was also a letter from his landlady (sent to the FtT after the hearing).
26. He still keeps in contact with his ex-wife. She was even going to try to come to this hearing. No-one would say that they had not been husband and wife. Everyone knew that they were living together and were in a genuine relationship. At work she was put down as his next-of-kin.
Conclusions
27. Although the grounds of appeal in relation to the decision of the FtT were not limited, the grant of permission focusses on the issue of the post-decision evidence, which I too consider to be the more significant, and indeed the only significant ground.
28. I have set out at [9]-[11] the circumstances of the FtJ’s direction in relation to post-hearing submissions. A letter from the appellant’s solicitors dated 22 July 2016 with attached documents is date-stamped as having been received by the Tribunal on 25 July 2016, so within the timescale set by the FtJ. It is apparent however, that the FtJ was not aware of the letter and documents having been received before she wrote her decision which is dated 4 August and promulgated on 5 August.
29. I would accept that where a judge has directed that documents be provided, or submissions be made, post-hearing and the judge was of the mistaken view that the directions had not been complied with, it is likely to amount to a procedural error for the judge to make her decision without taking the documents/submissions into account. The fact that a judge was ignorant of the receipt by the court or tribunal of those documents or submissions would not alter the fact that there was procedural error.
30. However, where documents or submissions are received unsolicited post-hearing I consider that the situation is likely to be different, although much will depend on the circumstances. Relevant factors will include whether the documents or submissions were served on the other party, what the relevance of the documents is, and any explanation for the material not having been provided at or before the hearing. Of course, the Ladd v Marshall principles apply, as further explained in E v Secretary of State for Home Department [2004] EWCA Civ 49.
31. In the case before me, the material provided post-hearing was the letter from the solicitors to which I have referred, which itself added nothing to what had previously been provided, except in terms of its reference to the further documents provided with it. These consisted of a copy of a tenancy agreement for the appellant and his former spouse at 210 Wickham Lane, dated 1 September 2013, a letter from the landlord of those premises dated 11 January 2015 referring to the tenancy of the premises and attesting to the genuineness of their relationship, and what appear to be wedding photographs.
32. The FtJ’s directions concerned the provision of post-hearing submissions in relation to the interview summary, and nothing else. Although the FtJ did not expressly state that any further representations were to be confined to the issue of the interview summary, so much is clear from the directions when read as a whole and their context, including the provision of a copy of the interview summary with the directions. There was certainly no invitation to provide further documentary or written evidence. The appellant’s representatives even included a copy of the directions with the letter dated 22 July.
33. Therefore, not only did the appellant’s representatives fail to make submissions on the very issue to which the directions were related, they provided further evidence without any application to do so and without having been invited to do so by the FtJ.
34. In addition, it is not apparent that any copy of the letter or documents was sent to the respondent, thus allowing her to make representations on the principle of the late admission of evidence, or on the contents thereof.
35. Lastly, I am not satisfied that this further evidence complies with the principles in Ladd v Marshall in that it was not explained, either at the time of its submission or subsequently, why it was not provided at or before the hearing before the FtJ. Given the information represented by the documents, it is evidence that was available at the time of the hearing before the FtJ. Furthermore, I cannot see that it is evidence that could have affected the outcome of the appeal.
36. In all the circumstances, I do not consider that there was any procedural irregularity in the FtJ having proceeded to determine the appeal without reference to that further material provided after the hearing. As I have indicated, in an appropriate case it could be an error of law for a judge to determine an appeal without reference to further material even if she was ignorant of that material. This is not such a case.
37. For the avoidance of doubt, it is also the case that the letter from the appellant’s uncle dated 24 March 2017, provided under cover of a letter to the Upper Tribunal dated 30 March 2017 and referred to as a supplementary statement, is not evidence that can be taken into account in deciding whether the FtJ erred in law in her decision.
38. That the post-decision evidence could not have affected the outcome of the appeal merges into a consideration of the other ground, which is a general complaint about the FtJ’s conclusion that the marriage was one of convenience. I have set out the basis of the FtJ’s conclusions. She considered all the oral and documentary evidence carefully and in detail. She resolved some issues in favour of the appellant. She explained fully why she concluded that there were significant inconsistencies in the interviews, and why overall she concluded that theirs was a marriage of convenience. She did not fail to take into account any material matter and did not take into account any extraneous matter.
39. She was entitled to conclude as she did, for the reasons that she gave, and the appellant’s disagreement with her conclusions, which is all that the first ground of appeal is, does not reveal any error of law in her decision.
40. Reverting to the post-decision evidence, I conclude that that evidence could not have made any difference to the outcome of the appeal because in relation to the photographs of the wedding, there was no dispute but that a wedding did take place. The photographs add little, if anything, except perhaps to show its scale, which from the photos appears to have been modest, and those attending, but that takes matters little further.
41. The tenancy agreement relates to one property and the tenants are named as the appellant and his former spouse, with an accompanying letter from the landlord. However, the property (Wickham Lane) was only one of the properties that required the judge’s consideration, and addresses themselves were but a part of the evidence that the FtJ considered. In addition, she gave reasons at [48] as to why, even taking into account an apparent tenancy agreement dated 1 September 2013 (which it is not even clear that she had not in fact seen), that was unsatisfactory evidence, in part because it was inconsistent with other evidence.
42. Even if I had concluded that the grounds established an error of law on the part of the FtJ, which I emphatically do not, it would have been open to me not to set aside her decision because the dismissal of the appeal is inevitable. As I explained to the appellant, and as he said he recognised, his appeal would have to be dismissed in any event because he is no longer the spouse of an EEA national, he having been divorced in February 2017. He is not on any view therefore, entitled to a residence card.
43. I am confined in this decision to deciding whether there was an error of law on the part of the FtJ, and if so whether her decision should be set aside, with the decision then to be re-made or remitted to the FtT. Although the appellant was anxious to achieve a result that would vindicate his assertion that theirs was not a marriage of convenience, that is not an objective that can be realised in these proceedings in circumstances where I have concluded that the FtJ did not err in law in her decision and where I find that her conclusions on the evidence before her were legally sustainable.

Decision
44. The decision of the First-tier Tribunal did not involve the making of an error on a point of law. The decision of the First-tier Tribunal to dismiss the appeal therefore stands.

Upper Tribunal Judge Kopieczek 6/04/17