IA/27854/2015

• Status of case: Unreported
• Hearing date: 15 Dec 2016
• Promulgation date: 16 Dec 2016
• Publication date: 12 Feb 2021
• Last updated on: 12 Feb 2021

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27854/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 15 December 2016
On 16 December 2016



Before

UPPER TRIBUNAL JUDGE blum


Between

UMAR AMIR BUTT
(anonymity direction NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: M, Counsel, instructed by Legal Rights Sponsorship
For the Respondent: M, Senior Home Office Presenting Officer


DECISION AND REASONS

1. This is an appeal against the decision of Judge of the First-tier Tribunal RR Hopkins, promulgated on 10 August 2016, dismissing the Appellant's appeal against a refusal by the Respondent, dated 27 July 2015, to issue him a residence card as confirmation of his right to reside in the UK under the Immigration (European Economic Area) Regulations 2006.


Background

2. The Appellant is a national of Pakistan, date of birth 22nd of August 1989. He entered the UK on 1 January 2011 as a Tier 4 (General) Student with leave valid until 31 May 2014. He was granted a further period of leave until 5 November 2014. On 16 October 2014 he applied for leave to remain on the basis of his family/private life. This was refused. On 6 January 2015 he applied for an EEA residence card as a result of his marriage to Silvia Nicoleta Dumitru (sponsor), a Romanian national. The Appellant claimed he had been in a relationship with his sponsor since June 2014 and they had been living together since August 2014.

3. The Respondent noted that, in his application of 16 October 2014, the Appellant made no mention of his sponsor or any family he had in the UK. Although they were married on 16 December 2014 the Respondent held against the Appellant his failure to inform her of the marriage or to update the Respondent in respect of his relationship. The Respondent did not accept that the sponsor was exercising treaty rights and noted that the marriage occurred one month after his student leave expired. The Respondent concluded that the marriage was not genuine and believed the marriage contracted on 16 December 2014 was one of convenience.


The decision of the First-tier Tribunal

4. The First-tier Tribunal heard evidence from the Appellant and from his sponsor. Having considered the various employment documents produced by the Appellant's sponsor the judge was satisfied that she was indeed a worker and therefore a qualified person under the EEA regulations [25].

5. The judge then considered whether the marriage was one of convenience. The judge noted that no reference had been made in the Appellant's application of 18 October 2014 to his sponsor. The judge accepted as plausible the Appellant's explanation that he had been advised by his representatives to not mention his relationship because he and his sponsor were not at that stage married. At [27] the judge found that the timing of the marriage, which occurred around a month after the Appellant's previous leave expired, was sufficient to give rise to a reasonable suspicion that the marriage might be one of convenience.

6. The judge noted that the Appellant and sponsor had not been invited to a marriage interview, and referred to evidence given by the Appellant to the effect that a home visit occurred on 3 August 2015 during which the immigration officers expressed their satisfaction as to the relationship. There was however no evidence from the Respondent in relation to this home visit and the judge was unable to attach further weight to the Appellant's assertions.

7. At [31] the judge considered the oral evidence from the Appellant and his sponsor. The judge noted that their evidence was fairly consistent in a number of respects but there were some discrepancies. The judge proceeded to list some of the evidence that had been provided and identified how the oral evidence had been both consistent and inconsistent. The judge attached a significant amount of weight to a discrepancy in the evidence relating to whether the Appellant collected his sponsor from work on the Monday prior to the hearing or whether she took a bus home from work [32]. The judge additionally found there was 'substantially diverging to evidence' relating to whether the Appellant's sponsor wanted an Islamic marriage (he said she did not want an Islamic marriage, but when asked why they hadn't had an Islamic marriage the sponsor said it was because she wanted lots of people to come).

8. At [34] the judge considered evidence relating to the issue of cohabitation and considered in detail the various bank account statements provided by the Appellant and his sponsor. They both had a joint Lloyds bank account that started in October 2014. They also each had separate Barclays bank accounts. The judge appeared to hold against the Appellant the delay in starting a joint bank account given that he and his sponsor began living together in August 2014. The judge additionally noted that the financial evidence did not present a clear picture of them sharing their resources. Only one salary payment was made into the Lloyds bank account, the joint bank account showed a number of cash deposits the provenance of which were unknown, and there were many transfers into the account by the Appellant. It was not apparent to the judge whether it had been the Appellant or his sponsor making the withdrawals from the account.

9. Having considered the discrepancies in the evidence and taking all the matters into account the judge found, on the balance of probabilities, that the marriage was one that was entered into primarily to enable the Appellants to claim a right to reside in the UK and not for cohabitation. Having found that the marriage was one of convenience the appeal was dismissed.


The grounds of appeal, the grant of permission, and the oral submissions

10. The grounds took issue with the judge's application of the burden of proof at [27], and the basis for his conclusion that the evidence from the Appellant and his sponsor was 'essentially divergent' in respect of whether she wanted an Islamic marriage. The grounds contended that the judge failed to accord sufficient weight to the other ways in which the Appellant and his sponsor gave consistent evidence. The grounds finally contended that the hearing and decision were procedurally unfair because the judge failed to raise his concerns relating to the bank accounts and the sharing of resources at the hearing.

11. The first-tier Tribunal granted permission on all grounds. Mr Nasim, who represented the Appellant in the First-tier Tribunal, expanded upon his grounds at the 'error of law hearing'. He submitted that the judge's reference at [27] related not to the evidential burden but to the legal burden. he submitted that there was no material inconsistency between the evidence given by the Appellant and that given by his sponsor as to whether she wanted an Islamic marriage. I was reminded that the judge had found that the evidence from the Appellant and the sponsor to be consistent in a lot of ways and that the judge's conclusions, at [35] failed to take into account this positive evidence. It was finally submitted that the judge had engaged in procedural unfairness as he drew adverse inferences against the Appellant and his sponsor, relating to their bank accounts and their sharing of resources, when these had never been put to them, either by the parties or by the judge himself.

12. I confirmed both with Mr Nasim and Mr Walker whether there was any evidence in their records of proceedings relating to the First-tier Tribunal hearing indicating that the Appellant and his sponsor were asked about their bank accounts. Mr Walker did not have a copy of the record of proceeding and Mr Nasim confirmed that there had been no questions put to either witness relating to the bank accounts, and there had been no questions asked about any of the transfers made into the bank accounts or the cash deposits. Mr Walker accepted that it was "troubling" that the judge had drawn an adverse inference in circumstances where there had not been any opportunity given to the Appellant to comment on this issue.

13. Having carefully considered the judges record of proceedings and the financial documents on file I indicated that I was satisfied the judge had committed a procedural error by not identifying his concerns relating to the financial documents and that this amounted to a material error of law.


Discussion

14. At [34] the judge considered, inter alia, the financial documents provided by the Appellant and his sponsor including their bank accounts and some of her salary slips. The grounds seemingly criticise the judge for undertaking a forensic analysis of the transactions in the bank statements but the evidence was adduced by the Appellant and the judge was fully entitled to look very carefully at the financial documents. It is irresistibly implicit in the judge's analysis at [34] that he harboured concerns relating to the bank account statements. The judge noted that the joint bank account was only started in October 2014 whereas the Appellant and the sponsor began cohabiting in August 2014. The judge noted that each maintained separate bank accounts in addition to the joint account and there appeared to be little evidence that the sponsor was contributing to the joint bank account. The judge referred to a number of cash deposits the provenance of which was unclear in respect of this bank account. There were said to be many transfers into the account by the Appellant and it was not clear whether he or the sponsor were making withdrawals from the account.

15. None of these concerns were however put to the Appellant or his sponsor, or raised by the judge at the hearing. There had been no cross-examination on these points and the judge had not asked any questions relating to the transactional history of the bank accounts or made any enquiries as to why separate bank accounts were maintained. No questions were posed in respect of the apparent lack of evidence of shared financial resources. Had the judge raised his concerns with the Appellant or sponsor, or with their representative, explanations could have been provided. I'm satisfied that the Appellant has been deprived of an opportunity of engaging with or responding to the concerns only raised by the judge in his decision. This constituted a procedural impropriety.

16. I am satisfied that the other grounds are less meritorious. It is quite clear to me that the judge's reference, at [27], related to the evidential burden incumbent on the Respondent. The judge did not materially misdirect himself as to the appropriate standard of proof. Having regard to the judges record of proceedings I accept that there were some aspects of the oral evidence that were consistent as between the Appellant and his sponsor which were not directly addressed by the judge, but these were relatively minor in nature and small in number (such as the type of birthday cake). The judge was entitled to draw an adverse inference based on discrepant evidence between the Appellant and the sponsor relating to how she made her way home from work the previous Monday, and the inconsistent evidence as to whether she wanted an Islamic marriage. Whilst another judge may have been entitled to conclude that these discrepancies were not sufficient to discharge the legal burden of proof incumbent on the Respondent, it cannot be said that the judge's conclusions were irrational ones not reasonably open to him.

17. I am nevertheless satisfied that the procedural error is material. Had the judge not committed this procedural error, and had he given the Appellant an opportunity to address his concerns, it cannot be said that the judge's findings would inevitably have been the same.

18. In circumstances where there has been a procedural failure it is appropriate to remit the matter back to the First-tier Tribunal, before a judge other than judge the First-tier Tribunal RR Hopkins, to be considered a fresh primarily in respect of the issue of marriage of convenience. Although the judge was satisfied that the sponsor was a qualified person the First-tier Tribunal re-hearing the appeal must still be satisfied that she remains a qualified person.




Notice of Decision

The First-tier Tribunal decision is vitiated by a material error of law. The matter is remitted back to the first-tier Tribunal, before a judge other than judge of the First-tier Tribunal RR Hopkins, for a fresh hearing.

No anonymity order is made.


15 December 2016
Signed Date

Upper Tribunal Judge Blum