Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/27469/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31 March 2017
On 20 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ESHUN

Between

mr Sheikh Awais Kaleem
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance by or on behalf of the appellant
For the Respondent: Mr E Tufan, HOPO

DECISION AND REASONS

1. The appellant is a citizen of Pakistan whose appeal against the respondent’s decision to refuse to grant an EEA residence card was dismissed by First-tier Tribunal Judge Rothwell in a decision promulgated on 8 August 2016.

2. On 8 February 2017, UTJ Doyle granted the appellant permission to appeal the judge’s decision by Upper Tribunal Judge Doyle. He said that the respondent’s decision was made on the basis that the respondent believed the appellant was party to a marriage of convenience. The appellant produced a marriage certificate and the EEA national’s national identity card. At paragraph 10 of the judge’s decision, reference was made to “Papajorgi (EEA spouse – marriage of convenience) [2012] UKUT 38 (IAC). UTJ Doyle cited the Court of Appeal’s decisions in Rosa [2016] EWCA Civ and Agho v SSHD [2015] EWCA Civ 1198 both of which held that the legal burden was on the Secretary of State to show that any marriage thus proved was a marriage of convenience and then the burden was not discharged merely by showing “reasonable suspicion”. The evidential burden might shift to the appellant by proof of facts that justified the inference that the marriage was not genuine.

3. The appellant’s claimed spouse is a Lithuanian national born on 4 February 1996.

4. The judge relied on the case of Papajorgi. She found that the information given by the respondent did raise issues in line with this case. On balance she did not accept on the documentary evidence before her that the appellant and his EEA spouse were in a genuine marriage for the reasons given by her.

5. The judge noted that the appellant and his EEA spouse were notified of an interview on 9 January 2015 but they did not confirm or attend. On 30 December 2014, they were again invited for another interview on 27 January, but again they did not confirm or attend. The judge said they would have been aware when they received the refusal notice that the respondent had tried on two occasions to invite them for interview. On 14 January 2015, the appellant was sent a letter stating that his case would be referred back to the case working team. Before the judge the appellant and his spouse had elected to have a paper appeal, which the judge said they were entitled to do. However, the appellant’s legal representative gave no reason as to why the appellant changed his position from oral to paper hearing on 14 June 2016. This meant that the respondent had no opportunity to test their relationship before her. In addition, the witness statements from the appellant and his EEA spouse which were before her were not signed.

6. I find that the same applies to the hearing today. The appellant was not present, nor was his spouse. His representatives did not turn up either. I note that the appellant was notified of today’s hearing on 22 February 2017 by notice which was sent to his address at 40 Pearson Way, Mitcham, CR4 2GF. The solicitors were also notified by notice of the same date sent to their address at 170 Cranbook Road, Ilford, IG1 4LX. There was no explanation from the parties as to their failure to attend today’s hearing.

7. The judge noted that there was evidence from 2014 to 2016 that gave the same address for both the appellant and his EEA partner. There were pay slips for the EEA spouse for 2014 and 2015 from AMS, but the last pay slip was dated May 2015 and there was nothing further.

8. The judge also noted that there was evidence of joint bank statements from 2014 to 2016. But, although the EEA spouse’s pay slips stated that she was paid by BACS, there were no references to the EEA spouse or her employer AMS of monies going into their joint account. There was evidence from 2016 relating to 40 Pearson Way where they had requested to vote. The appellant and his wife did not provide the relevant evidence to be able to vote. The judge found that this evidence did not prove to the balance of probabilities that they were in a genuine relationship.

9. The judge noted that there were no letters from friends or relatives. There were no photographs other than what appeared to her to be wedding photographs. The unsigned witness statements gave very little information about their daily life together as a couple. The appellant and his EEA spouse were aware of the concerns and findings of the respondent. However, there was very little evidence as to the quality and genuineness of their relationship.

10. The judge therefore concluded that the appellant was not in a genuine marriage with an EEA spouse.

11. The grounds submitted by the appellant’s solicitors argued that the decision was harsh and unreasonable because the judge did not consider evidence properly from 2014 to 2016.

12. I find that the grounds are without merit. The judge properly considered the evidence that was before her from 2014 to 2016. The judge also noted the lack of documentary evidence crucial to the quality and genuineness of their marriage.

13. On the totality of the evidence I find that the judge’s findings were properly made and sustainable. The judge’s decision disclosed no error of law. The judge’s decision dismissing the appellant’s appeal shall stand.

No anonymity direction is made.

Signed Date: 18 April 2017

Deputy Upper Tribunal Judge Eshun