Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27817/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 April 2017
On 27 April 2017

Before

UPPER TRIBUNAL JUDGE FINCH

Between

MUHAMMAD NASIR JAVED
(anonymity direction NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. S. Muquit, of counsel
For the Respondent: Mr. P. Singh, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, who was born on 13 January 1981, is a national of Pakistan. He entered the United Kingdom on 31 December 2010 with a student visa which was valid until 31 May 2012. On 3 September 2012 he applied for a residence card as the spouse of a Portuguese national and this application was refused on 7 January 2013.

2. On 9 April 2013 the Appellant applied for a residence card as the unmarried partner of another Portuguese national. This application was refused on 27 September 2013. The Appellant initially appealed but, as he had married his second partner on 22 July 2013, he subsequently withdrew his appeal against the decision to refuse him a residence card as an unmarried partner and on 8 September 2014 the Appellant applied for a residence card on the basis that he was married to his second partner. This application was refused on 2 July 2015 on the basis that his marriage was one of convenience and that he had failed to provide evidence that his wife was a qualified person for the purposes of the EEA Regulations.

3. The Appellant appealed against this decision on 3 August 2015 and First-tier Tribunal Judge Miller dismissed his appeal on in a decision and reasons promulgated on 14 October 2016. The Appellant sought permission to appeal to the Upper Tribunal (Immigration and Asylum Chamber). Permission was granted by First-tier Tribunal Judge Page on 8 March 2017. The Respondent submitted a Rule 24 Response on 14 March 2017.

ORAL HEARING

4. Counsel for the Appellant accepted that, in the light of the Appellant’s immigration history, the Respondent had met the evidential burden of establishing that his marriage may be one of convenience and that, therefore, the evidential burden shifted to him to establish that his marriage was not one of convenience. However, he noted that when the First-tier Tribunal Judge had been considering whether the evidence produced by the Appellant was sufficient to indicate that his marriage was genuine, the Judge had omitted to “confront and discount” the medical evidence at pages 257 – 298 of the Appellant’s Bundle, which confirmed the evidence given by the Appellant and his wife that at the time they were called for their “marriage interview” she was pregnant. He submitted that a mere reference to the fact that the Appellant’s wife had been pregnant, when reciting the chronology of the case, was not sufficient.

5. In reply, the Home Office Presenting Officer said that he relied on the Rule 24 response and submitted that the First-tier Tribunal Judge had referred to the evidence before him at length in paragraphs 36 and 37 of his decision and reasons and that his overall finding was one which was open to him on the evidence before him. He noted that the First-tier Tribunal Judge had found the Appellant to be untruthful and that in such cases documents could be created and provided for Appellants. He also noted that the First-tier Tribunal Judge had mentioned that the Appellant’s wife had been pregnant in paragraph 6 of his decision and reasons. He also submitted that the only real evidence to show that the Appellant’s wife was pregnant was the Appellant’s own letter at page 257 of the Appellant’s Bundle and that there was no evidence that she was pregnant with the Appellant’s child. The Home Office Presenting Officer accepted that there were a number of people present at what was said to be the meal after the Appellant’s wedding but submitted that this was not sufficient to show that their marriage was not one of convenience.

6. Both representatives agreed that it was not necessary in an EEA marriage appeal to establish that the parties to a marriage intended to live together.

THE DECISION

7. The Appellant needed to show that his marriage to his wife was not one of convenience. He had submitted a marriage certificate, which confirmed that he had married his wife on 22 July 2013 at the West Sussex Register Office in Crawley in West Sussex. However, regulation 2 of the Immigration (European Economic Area) Regulations 2006 states that a “spouse” does not include a party to a marriage of convenience.

8. This is important as regulation 7(1) of the EEA Regulations also states that one of the persons to be treated as a family member is a spouse. Finally, regulation 17(1(b) of the EEA Regulations states that the Secretary of State must issue a residence card to a person who is the family member of an EEA national who is a qualified person.

9. The Home Office Presenting Officer noted at the hearing that in paragraph 8 of his decision and reasons the First-tier Tribunal Judge had accepted that the Appellant’s wife was exercising a Treaty right in the United Kingdom.

10. In paragraph 10 of Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14 Lord Justice Richards noted that “neither the EEA Regulations nor the provisions of the Directive contain a definition of "marriage of convenience", but in R (Baiai) v Secretary of State for the Home Department (Nos. 1 and 2) [2008] UKHL 53, at paragraph 6, Lord Bingham said that it was difficult to improve on the definition (which the Secretary of State accepted in that case as apposite) in Article 1 of EC Council Resolution 97/C 382/01 of 4 December 1997 on measures to be adopted on the combating of marriages of convenience. That article defines a marriage of convenience as –

"a marriage concluded between a national of a Member State or a third-country national legally resident in a Member State and a third-country national, with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member State."

11. At paragraph 24 Lord Justice Richards also confirmed that “the legal burden lies on the Secretary of State to prove that an otherwise valid marriage is a marriage of convenience so as to justify the refusal of an application for a residence card under the EEA Regulations. The First-tier Tribunal Judge acknowledged this in paragraph 36 of the decision and reasons. It is not disputed that the Respondent had met the legal burden due to the Appellant’s immigration history. In addition, the Appellant and his wife had not been encountered during visits to two addresses provided by them and had not attended a marriage interview.

12. The evidential bundle then shifted to the Appellant and the First-tier Tribunal Judge went through the Appellant’s large bundle and considered some of this evidence in paragraph 37 of the decision and reasons. The Home Office Presenting Officer submitted that this amounted to taking into account the evidence submitted by the Appellant in the round. However, in order to comply with the principles established in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11, the First-tier Tribunal Judge had to take into account all items of evidence and accord appropriate weight to each item before reaching a decision as to the credibility of the Appellant’s account. Merely referring to the fact that the Appellant’s wife was pregnant in paragraph 6 of the decision and reasons did not amount to attaching appropriate weight to the medical evidence relating to her pregnancy. This included scans and documents from a hospital in Portugal, including a detailed diagnosis of her condition. It was not the case that the only evidence confirming her pregnancy was a letter from the Appellant.

13. Furthermore, the test to be applied in order to ascertain whether an EEA marriage was one of convenience was not the same as the test to be applied in relation to marriage applications under the Immigration Rules. In paragraph 41 of his decision and reasons the First-tier Tribunal Judge found that “the evidence falls far short of being sufficient to show that [the Appellant and his wife] are in a genuine marital relationship and that they intend to live together”. This is the test to be applied in relation to the Immigration Rules. In the current case the test to be applied was whether they had entered into a marriage with the sole aim of circumventing the rules on entry and residence for third-country nationals. The content of paragraph 41 casts doubt on the manner in which the appeal was decided.

14. For these reasons I find that First-tier Tribunal Judge Miller made clear and material errors of law in his decision and reasons.

DECISION

15. The appeal is allowed.

16. First-tier Tribunal Judge Miller’s decision and reasons is set aside.

17. The appeal is remitted to the First-tier Tribunal to be heard de novo before a First-tier Tribunal Judge other than First-tier Tribunal Judge Miller.

Signed

Nadine Finch
Date 24 April 2017
Upper Tribunal Judge Finch