Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27906/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 13 June 2013
On 21 June 2013
Prepared 13 June 2013

Before

LORD DAVID BURNS
UPPER TRIBUNAL JUDGE RINTOUL

Between

MR MIKAIL KEMI OYEKUNLE

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Not Represented
For the Respondent: Mr Melvin, Home Office Presenting Officer

DETERMINATION AND REASONS
1. The respondent appeals with permission against the determination of First-tier Tribunal Judge Crawford promulgated on 8 March 2013 allowing the claimant’s appeal against the decision of the respondent made on 12 November 2012 in which she refused the claimant’s application for a registration card as confirmation of his right of residence as the family member of an EU national.
2. The claimant’s case is that on 21 January 2012 he was married to Carina Rodrigues Pinto, a Portuguese national, by proxy and according to customary and native law in the Mushin local government area, Lagos State, Nigeria.
3. The respondent refused the subsequent application for a residence card confirming his right of residence as the spouse of an EEA National on the basis that to be valid in the Federal Republic of Nigeria both parties must be present at the marriage and whilst proxy marriages are permissible under traditional laws, these had ceased to be valid. The respondent also refused the application as she was not satisfied either that Ms Pinto was exercising treaty rights in the United Kingdom.
4. The claimant appealed against that decision on the basis that the respondent’s assertion that proxy marriages are no longer valid in Nigeria was incorrect; that the appellant is lawfully married; and, that Ms Pinto is employed. The notice of appeal also requested a hearing on the papers.
5. Subsequent to that, the First-tier Tribunal issued a notice to both parties indicating that the appeal was to be decided without a hearing and stating that the Tribunal may determine the appeal on the basis of the appeal documents together with any further written evidence or submissions that either party may wish to make. That notice is contained within the respondent’s bundle.
6. The appellant adduced a further bundle of material in support of his appeal which was taken into account by the judge in reaching his decision. There is no indication from the file that any further submissions or documents were adduced by the respondent.
7. The judge concluded, on the basis of the material before him first that the marriage was valid [12, 13] and that Ms Pinto was employed therefore exercising treaty rights [11]. He therefore allowed the appeal.
8. The respondent sought permission to appeal against this decision on the basis that the judge had misdirected himself in law given that for proxy marriages to be valid under Nigerian law, the matter is to be registered with the Nigerian authorities within 60 days of the marriage taking place [3]; that the marriage and the certificate had not been registered until substantially after this period [4] and that as the appellant had failed to register the marriage within the relevant period, the marriage was not valid [5].
9. Permission to appeal was granted by Designated Judge J M Lewis who noted that he could not see the authority for the assertion that Nigerian proxy marriages are to be registered within 60 days [2] but considered the error of law is arguable and depends on the citation of evidence [3].
10. In his response to the grant pursuant to Rule 24, the claimant submits there is no provision that a proxy marriage must be registered within 60 days; that the Secretary of State has not provided any evidence to that effect; that the issue is one of Nigerian law and therefore an issue of fact under English law; and, an assertion for which the respondent has provided no evidence. This letter was followed on 13 June 2013 by a letter from the claimant’s solicitor stating that he was unable to attend and submitting that the matter should proceed in any event.
Does the determination of the First-tier Tribunal involve the making of an error of law?
11. Mr Melvin asked us to note that the issue of the validity of proxy marriages was under consideration by the Upper Tribunal. We did not, however, consider that was a sufficient reason to adjourn the appeal. He was, however, unable to direct us to any material submitted to the Tribunal indicating that there was a 60 day time limit within which proxy marriages must be registered.
12. Mr Melvin sought to expand the grounds of appeal on the basis that this was, apparently a marriage of convenience and submitted that the respondent had not been given the opportunity to adduce additional material.
13. As the claimant correctly submits, the validity of the marriage is an issue of Nigerian law and thus a question of fact to be decided by the Tribunal. Mr Melvin was unable to point us to any evidence in the material before the judge that indicated that a proxy marriage must be registered within 60 days.
14. Whilst we accept that this information may now be available, no prior application has been made as to why this material should, exceptionally, be adduced at the error of law stage. There is no proper explanation put forward as to why the respondent could not adduce this additional material given that she was aware that the matter was to be decided on the papers and that she had an opportunity to adduce additional material. There is no indication that this was done.
15. The respondent could, had she so wished, have refused the application in the alternative that if the marriage were valid, it was one of convenience. She did not do so. It is not now open to the respondent to raise this issue. The judge cannot be faulted for not taking into account evidence which was not before him in reaching a finding of fact and accordingly, the determination does not involve the making of an error of law. We therefore uphold it.

SUMMARY OF CONCLUSIONS

1 The determination of the First-tier Tribunal did not involve the making of an error of law and we uphold it.

Signed Date: 21 June 2013

Upper Tribunal Judge Rintoul