Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27370/2014

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 12th May 2016
On 3rd October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

miss Manpreet Kaur Butter
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z Jafferji (Counsel)
For the Respondent: Mr D Mills (HOPO)

DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge P J Holmes, promulgated on 2nd March 2015, following a hearing at Stoke-on-Trent on 4th February 2015. In the determination, the judge allowed the appeal of Manpreet Kaur Butter, whereupon the Secretary of State subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

The Appellant
2. The Appellant is a female, a citizen of India, who was born on 16th May 1990. She entered the UK on 9th September 2009 with entry clearance as a Tier 4 (General) Student valid until November 2011. She had further grants of leave in the same category. Subsequent grants of leave were eventually curtailed on 28th June 2013, but on 2nd September 2013, the Appellant married at Cheltenham, a Czech citizen, by the name of Mr Robert Gabco, and by an application made on 10th September 2013, she applied for a residence card as a spouse of an EEA national exercising treaty rights in the UK.
3. By a decision dated 19th June 2014, the Respondent, the Secretary of State, notified the Appellant that, upon consideration of the application under the Immigration (EEA) Regulations 2006, and with particular reference to Regulation 2, the application for a residence card was refused because there were "a significant number of discrepancies, inconsistencies, irregularities, and issues" when the Appellant and her EEA national husband were interviewed on 3rd June 2014, thereby leading to the conclusion that the Appellant's marriage was one of convenience, and not a genuine marriage. The Appellant issued a Notice of Appeal on 1st July 2014 against that decision.
The Judge's Findings
4. The judge considered the appeal under Regulation 26 of the said 2006 Regulations. He had regard to Regulation 6(1) which defines a qualified person as a person who is an EEA national and is (a) a jobseeker, (b) a worker, (c) a self-employed person, (d) a self-sufficient person, or (e) a student. He considered Regulation 14(1) which provides that a qualified person is entitled to reside in the UK for so long as he remains a qualified person. The judge then went on to have regard to the definition of a marriage of convenience and the determination in Papajorgji [2012] UKUT 00038, where the Tribunal said that, "a marriage entered into without the intention of matrimonial cohabitation and for the primary purpose of securing admission to the country" is a marriage of convenience.
5. It is a feature of this appeal that the Appellant contended that most of the contents regarding the interview in "the reasons for refusal" letter do not match with what the Appellant or the Sponsor said. Indeed some of the answers written were not what they had replied (see paragraph 11 of the determination). Accordingly, access to the transcript of the interview became the critical feature of this appeal, especially when none was forthcoming, despite repeated directions given by the Tribunal to this effect. There was first a direction dated 1st August 2014 addressed to both parties, and for a hearing date of 3rd October 2014. The Respondent did not comply with the directions and no interview transcript was produced.
6. The Appellant's solicitors wrote a letter on 19th September 2014. Ten days later, with the transcript still not having been served, the Appellant's solicitors wrote again. There was then a direction given by Designated Judge Coates, who adjourned the hearing to 20th October 2014 and directed that the Respondent file and serve the transcript within seven days.
7. Judge Holmes' determination records that, "the notice giving this direction was delivered by hand to the Presenting Officers' Unit on 1st October 2014" (13). On 15th October, however, the Tribunal received a further letter from the Appellant's solicitors complaining that the transcript still had not been served. Designated Judge Coates adjourned the appeal hearing to 4th February 2014 and he repeated the direction. He further added that, "the Respondent is directed to explain in writing within seven days why my previous direction was not complied with" (paragraph 14).
8. On 28th January 2015, the Tribunal received yet another letter from the Appellant's solicitors complaining that the transcript still had not been served. The file was then referred to the Resident Judge, who refused an adjournment but directed that, "unless the Secretary of State provides a transcript of the hearing of the marriage interview before the hearing, she is precluded from relying on evidence of the interview" (paragraph 15).
9. At the hearing before Judge Holmes on 4th February 2015 the Presenting Officer, Miss Griffiths, "confirmed that she had the transcript on her file, and sought permission to rely upon it as evidence, notwithstanding the Respondent's non-compliance with directions"(paragraph 16). She went on to explain that she had,
"been informed that an unsuccessful attempt was made by the Respondent in October 2014 to serve the transcript on the Appellant's solicitors by fax and email, but she was otherwise not able to explain to me why the transcript had not been served, or filed with the Tribunal, and the notices giving directions to which I have referred ?" (paragraph 16).
Naturally, Mr Jafferji, who appears again as Counsel in this appeal, opposed that application to rely upon the interview transcript now.
10. The judge went on to conclude that,
"The refusal in this case was based entirely upon the view that the Respondent took of the marriage interviews. No further considerations are mentioned in the reasons for refusal, neither have any been raised in this appeal" (paragraph 18).
Since the judge did not allow for the interview transcript to now be admitted in evidence by the Respondent, upon Miss Griffiths' application, there was nothing left upon which to base the refusal. Indeed, the judge held that,
"The discussion of the marriage interviews, contained in the reasons for refusal letter, does not purport to be a complete record of what was asked or what was said in answer, and I find that I cannot treat it as an impartial summary" (paragraph 19).
11. The judge went on to hold that he was satisfied "on the balance of probabilities that the Appellant and the EEA national are lawfully married" (paragraph 21). He ended with the words that, "it is not in dispute in this appeal, that the EEA national was at the date of the Respondent's decision and remains a qualified person" (paragraph 22).
12. The appeal was allowed.
Grounds of Application
13. The grounds of application state that, since no concessions were made whatsoever in the reasons for refusal letter, it was insufficient before the judge simply to accept that the Sponsor was a "qualified person", and that the correct course of action was for the Secretary of State to allow the appeal only to the extent that it is remitted back to the Secretary of State for consideration of the outstanding requirements.
14. On 14th May 2015, permission to appeal was granted.
Submissions
15. At the hearing before me on 12th May 2016, Mr Mills, appearing as Senior Home Office Presenting Officer on behalf of the Respondent Secretary of State, stated that, even if the judge had proceeded to reject Miss Griffiths' application below to have admitted in evidence the interview transcripts, that did not mean that the appeal stood to be allowed outright, because the Secretary of State still had to be satisfied about the other remaining issues, the principle one of which here, was whether the Sponsor was a qualified person. Mr Mills explained that, in the nature of the refusals undertaken by the Secretary of State, if a refusal can be made on a particular point (which may be deemed at the time to be the best point), then no further consideration is given to any other matters in the application.
16. In this case, the refusal could be made on the basis that this was a marriage of convenience, and the Secretary of State did not then go on to consider whether Mr Robert Gabco, the Czech citizen, was a qualified person. That did not mean to say that the Secretary of State had accepted that Mr Robert Gabco was in the UK exercising treaty rights. That was still a matter that remained outstanding. It was certainly not the case that, "it is not in dispute in this appeal, that the EEA national was at the date of the Respondent's decision and remains a qualified person" (paragraph 22) because Miss Griffiths had made no such concession before Judge Holmes.
17. In this case, although there were some bank statements going back to 2013, there was nothing to show that Mr Robert Gabco was actually employed in the manner to satisfy the treaty requirements at the relevant date. The burden of proof was on the Appellant in this respect. He asked that I set aside the decision to the extent that the outstanding issues have to be investigated by the Secretary of State, and if she is so satisfied, then she may allow the application, but it was not open to the Tribunal Judge to allow the appeal outright.
18. For his part, Mr Jafferji submitted that if one looks at the application form in the Respondent's bundle (at page 16, section 6) the details given by the Appellant are that her sponsoring husband works for "The Best Connection" at 630 Warwick Road. The start dates are given. The nature of the job is specified as "ongoing temporary". The date of the expiry of the contract for his job is given. The judge was not oblivious to this. At paragraph 7 of his determination he makes it clear that he is aware of this. The background is known to the judge (see paragraphs 12 to 15). Moreover, no issue was raised by Miss Griffiths below that the Appellant was not a qualified person. In fact, at paragraph 18 of the determination, it is clear that the refusal was based entirely on the issue of a sham marriage. The judge himself put to himself the question as to whether, at the date of the hearing, the Appellant's husband was a qualified person (paragraph 22), and concluded that he was. The Grounds of Appeal by the Respondent are predicated on the judge not having considered the issues when the judge in fact did do so.
19. In reply, Mr Mills submitted that if there is one single fatal flaw in the application, then that is what the Secretary of State would initially proceed upon, and reject the application on that basis. That did not mean to say that the Secretary of State had conceded every other issue. In this case the Secretary of State had focused on the fact that this was a sham marriage. The assessment was based upon the interview. The transcript of the interview was ready for handing up to the Tribunal by Miss Griffiths.
20. In this case, the latest directions given by the Resident Judge (see paragraph 15) were that the Secretary of State was to provide an explanation for non-compliance with the previous directions. There was, indeed, an explanation here. This was that when the first direction was given by Designated Judge Coates, who adjourned the hearing to 20th October 2014, and directed that the Respondent file and serve the transcript within seven days, this "direction was delivered by hand to the Presenting Officers' Unit on 1st October 2014" (paragraph 13). Thereafter, because of the manner in which it had been delivered by hand, it had gone astray.
21. Mr Mills submitted that, he could certainly say that his file did not contain a copy of the directions. It had taken a while to bring the matter back on track. This was eventually done before Judge Holmes and Miss Griffiths "confirmed that she had the transcript on her and sought permission to rely upon it as evidence" (paragraph 16). The judge refused. Whether or not that was right, it was not open to the judge to allow the appeal outright thereafter. He should only have allowed it to the extent that the "marriage of convenience" point has not been proved by the Secretary of State. The matter should then have been remitted back to the Secretary of State for consideration of all the circumstances before deciding whether to allow the application of the Appellant.
22. There was, indeed, on the facts of this case, plenty for the Secretary of State to have been concerned about. For example, although the application states (at section 6) that the Sponsor, Mr Robert Gabco, had employment, this was in September 2013, which was well over a year before the application was made, and this does not demonstrate that the Sponsor was exercising treaty rights.
23. To say, therefore, that this was not in dispute, goes too far. In fact, a letter (see page 41 of the Appellant's bundle) demonstrates that the agency where the Sponsor was employed, had concerns about him, six months earlier, because of his failure to answer emails, and they were stating that they were going to refuse to pay him. Even if the Presenting Officer was not raising this as an issue before the judge, it was there in the documentation for the judge to consider, and the appeal should not have been allowed without a proper consideration of this vital aspect of an application based upon an EEA claim.
24. Mr Jafferji intervened to say that the bundle that was now being referred to was not before the judge. The employment that the Sponsor was engaged in was continuing. The reason why Judge Holmes refused to accept the transcript submitted by Miss Griffiths was because she could offer no explanation as to non-compliance with earlier directions, and the latest direction by the Resident Judge was to the effect that, without a proper explanation, the marriage interview is not to be tendered in evidence. All Mr Holmes was doing was upholding the directions given.
Error of Law
25. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows.
26. First, there were, according to the refusal letter, "a significant number of discrepancies, inconsistencies, irregularities and issues concerning the credibility of both your accounts" when the refusal was made with respect to what unfolded during the marriage interview. Importantly, the refusal letter gives instances of this. The Sponsor, Mr Robert Gabco, stated that he entered the UK in 2006 but the Appellant, stated that she did not know but thought it was in 2010. The Sponsor, Mr Robert Gabco, stated that the Appellant entered the UK on 9th September 2013, but this was difficult to follow given that the Appellant and her husband met and were married before this date.
27. The Appellant said that she got on well with her husband's mother and visited twice every month and last saw her husband's mother at the beginning of May 2014. However, the sponsoring husband stated that she had never visited his mother's house. The Appellant stated that she got divorced from her previous husband in May 2013, a month after meeting her husband, and at this time he had already proposed to her. Yet, her husband stated that she had been divorced from her previous husband before you both met. This last discrepancy is indeed a most significant one. For a partner to a marriage not to know whether his or her spouse had already been divorced, when that was not the case, is startling indeed. There is no reference to these matters in the determination whatsoever. There is no indication that an explanation was sought from either the Sponsor or the Appellant with respect to these matters, particularly since they alleged that the contents of the refusal letter do not match what actually happened.
28. Second, an explanation was available for why the directions had not been complied with. It may not have been a very good explanation. It may have been indicative of administrative inefficiency and shortcomings. Nevertheless, it was an explanation, and did provide a background to why there had been such delay before the interview transcript had been produced. At the hearing, it was available, and Miss Griffiths was in a position to hand it up for consideration, and the matter could have been adjourned either for an hour or so during the course of the day, or the appeal adjourned to another day altogether, but it was in the circumstances, not in accordance with the overriding principle to have refused consideration altogether of a vital piece of evidence that went to the core issue in this appeal, namely, whether or not the marriage of the Appellant and the Sponsor was a marriage of convenience.
29. Third, and most importantly, it was not open to the judge to have allowed the appeal outright given that what was under consideration was compliance with the EEA Regulations between the marriage of a non-EEA national and an EEA national, where a refusal letter had thrown up issues that needed further investigation.
Remaking the Decision
30. I have remade the decision on the basis of the findings of the original judge, the evidence before him, and the submissions that I have heard today. I am allowing this appeal to the extent that it is remitted back to the Secretary of State for a consideration of all remaining outstanding issues, and in particular whether the Sponsor, Mr Robert Gabco, was in the UK exercising treaty rights, as this was a matter that was never conceded by the Respondent Secretary of State.
Notice of Decision
31. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is remitted back to the Secretary of State for a reconsideration for the outstanding issues.
32. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 30th September 2016