Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29481/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 September 2016
On 13 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

LAZIZ GADAEV
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms H Foot, Counsel, instructed by Farani Javid Taylor, Solicitors.
For the Respondent: Mr S Whitwell, Home Office Presenting Officer.

DECISION AND REASONS
1. This is an appeal by the appellant against a decision of the First-tier Tribunal dismissing his appeal against the respondent's decisions made on 8 July 2014 refusing him a residence card as a confirmation of the right of residence as a family member of his wife, a Lithuanian national, and revoking his existing residence card.
Background
2. The appellant is a citizen of Uzbekistan born on 6 September 1988. He first came to the UK as a student on 18 February 2007. His leave to remain expired in February 2010 when he overstayed. However, following his marriage on 20 January 2012 he was granted a residence card from June 2013 until June 2018. The appellant had returned to Uzbekistan between 27 August 2013 and 27 January 2014 and after he returned he made the present application. This was refused for the reasons set out in the respondent's decision letter dated 8 July 2014. The appellant's previous residence card gave an address of [ - ], N22. On 31 October 2013 immigration officers had visited that address but neither he nor his wife were found to be living there and the officers were told that he had not lived at the address for at least eighteen months. This directly contradicted his claim to have been residing there at the time of application. It was the respondent's view that insufficient documentary evidence had been produced to show that they had lived there, that the address had been used solely to aid an application for a residence card and that the marriage was one of convenience.
3. An appeal against this decision was dismissed by the First-tier Tribunal on 6 January 2015. The appeal was decided without a hearing but on 29 June 2015 that decision was set aside by the Upper Tribunal on the basis that there had been a number of procedural irregularities. At the hearing the issue was raised about whether the First-tier Tribunal had been entitled to consider whether the sponsor was exercising treaty rights as the appellant had not been given notice of this and it had not been raised in the decision letter. The judge indicated that this would now be a live issue. The appeal was remitted to the First-tier Tribunal for a hearing.
4. The appeal was relisted for hearing on 11 December 2015. An application was made before the hearing for an adjournment on the basis that the appellant had recently separated from the sponsor and was seeking a divorce and for the appeal to wait until his divorce was finalised. This application was refused on 1 December 2015 with an indication that the Tribunal would decide the appeal on the basis of the circumstances at the date of hearing. However, at the hearing, following a discussion of the issues, a renewed application was made for an adjournment on the basis that the appellant could not provide evidence that the respondent was exercising treaty rights because they were now separated. The judge was asked to direct that the respondent make enquiries with HMRC about her. The Presenting Officer did not oppose the application but the judge refused it on the basis that he was required to deal with the case in a way which was proportionate to its importance, the complexity of the issues and the resources of the parties. He identified at [5] as the key issue: "?whether the appellant would be deprived of his right to a fair hearing if the appeal were to go ahead without being given a further opportunity to obtain evidence of the sponsor exercising treaty rights (see generally Kelechi Emanuel Nwaigwe (Adjournment: fairness) [2014] UKUT 00418 (IAC)."
5. The judge found that the appellant was not in any meaningful way taken by surprise by any new issue arising and had had ample time to prepare his case [6]. He noted that the documentary evidence included a number of HMRC documents but none of them could be described as recent [7]. The judge said that it was clear from the earlier written adjournment request that the appellant intended making an application for confirmation of a right of residence in due course on the basis that he held a retained right of residence. The judge said at that point it might be appropriate to consider making a direction to the respondent along the lines requested but the appellant still faced the hurdle of the marriage of convenience allegation and this was premature. It was in the interests of justice to have that point determined as soon as possible [7]. A further application for an adjournment was made on the basis that the appellant would require a Tajik interpreter but this was also rejected as the judge was not satisfied that the appellant was genuinely unable to participate in the hearing without an interpreter.
6. The judge went on to hear evidence and submissions. He set out his findings in [19] - [42]. In summary, he accepted that the appellant's wife was an EEA national but found that there was no reliable evidence that she was currently in the UK and exercising her treaty rights. He set out his reasons in [21] - [24]. He then went on to consider the marriage of convenience issue. He was satisfied that this had not been a marriage of convenience, noting in particular that the date of the marriage was 20 January 2012 and the appellant had been granted a residence card on 3 June 2013 on the basis of that marriage. The decision under appeal had not been made until 8 July 2014, two and a half years after the marriage. Whilst the immigration officers visit had taken place within five months of the residence card being issued, it was pertinent to note that the respondent took no further action for a further eight months and then only when prompted to do so by the further application.
7. It was the judge's conclusion that this was not a case where there were circumstances giving reasonable grounds for suspicion such that there was an evidential burden on the appellant to discharge on whether or not the marriage was one of convenience. However, the judge went on to consider the subsistence of the relationship and the claim that the couple had cohabited until recently. He noted that there was no evidence confirming that the sponsor had been in the UK after the end of January 2015 and scant evidence that she supported the appellant's appeal. He accepted there may have been a relationship between the appellant and the sponsor and that the marriage was genuine. He could not say with any certainty when it broke down but he inferred that it was long before the appellant's claim that they had separated in June 2015. He found it more probable than not that the couple had separated by the time of the visit to [ - ] on 31 October 2013 and he did not accept that either of them had resided there since then, if at all. For these reasons the appeal was dismissed under the EEA Regulations.
The Grounds and Submissions
8. In the appellant's grounds two issues are raised. Firstly, it is alleged that the judge erred in law by failing to grant an adjournment. He had been told that the appellant and his wife were separated and intended to divorce and that this was one of the reasons why the appellant had been unable to provide updated evidence of his wife exercising treaty rights. The appellant had been prejudiced, so it is argued, as he was unable to demonstrate that his wife was exercising such rights and that the failure to adjourn was a material error of law as it was the key reason the appeal was dismissed. The second ground, which was not pursued before me, was that the judge's findings were inconsistent in that having found that the marriage was not one of convenience it was inconsistent to find that it was genuine and then to go on to hold that it had broken down before the date the appellant said they had separated.
9. Ms Foot submitted that the judge's decision not to adjourn the hearing had caused unfairness to the appellant. He should have had a proper opportunity to investigate and provide evidence about whether his wife was exercising treaty rights. This would be of considerable importance in relation to his claim that he was entitled to a retained right of residence.
10. Mr Whitwell submitted that the judge had given clear and adequate reasons for refusing the adjournment. In particular, he had been entitled to note that at the previous appeal in the Upper Tribunal the judge had indicated that the issue of whether the appellant's wife was exercising treaty rights was a live issue and there had been ample opportunity to obtain such evidence. The issues before the Tribunal did not include whether the appellant would have an entitlement to a retained right of residence but whether there was a marriage of convenience and whether the appellant's wife had been or was still exercising treaty rights.
11. In reply Ms Foot argued that the judge had not properly grappled with the issue of the appellant's inability to obtain evidence in relation to his wife's circumstances. That evidence could have made a difference to the outcome and it had been unfair of the judge not to adjourn in these circumstances.
Consideration of whether the First-tier Tribunal Erred In Law
12. In Nwaigwe, the President restated the approach set out by the Court of Appeal in SH (Afghanistan) v Secretary of State [2011] EWCA Civ 1284 that, when considering whether an adjournment should be granted, the test was not irrationality but the test and sole test was whether it was unfair. The President said at [7]:
"Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FTT acted reasonably rather, the test to be applied is that of fairness: was there any deprivation of the affected parties right to a fair hearing? Any temptation to review the conduct and decision of the FTT through the lens of reasonableness must be firmly resisted, in order to avoid a misdirection in law. In a nutshell fairness is the supreme criterion."
13. The issue therefore is simply whether the judge's refusal of an adjournment was unfair. At the hearing the application was made on the basis that the appellant could not provide evidence that the sponsor was exercising treaty rights because they had separated. On that issue the judge was entitled to find that the appellant had not in any meaningful sense been taken by surprise and had had an ample opportunity to prepare his case: see in particular [5] - [8] of his decision. The decision letter had made no point about the sponsor's self-employment but, as the judge pointed out, it had been clear since the Upper Tribunal decision issued on 29 June 2015 that this was a live issue and that there had been ample opportunity between June and December 2015 to obtain evidence on that matter. Further, the appellant had been legally represented and had filed some evidence dealing with this issue [6] and, as the judge also pointed out, an application for confirmation of a right of residence could be made in due course on the basis of a retained right of residence [7].
14. In summary, the judge was clearly aware of the test to be applied having referred to Nwaigwe at [5]. He was fully entitled to proceed with the hearing for the reasons he gave and more to the point, the grounds and submissions do not satisfy me that the judge acted unfairly or that the appellant was deprived of a fair hearing of the issues raised in the appeal. When the decision is read as a whole it is clear that the judge considered the appeal with both fairness and care.
15. As I have already indicated, the second ground of appeal that the judge made inconsistent findings was not pursued and rightly so, as there is no inconsistency between a finding that the marriage was not one of convenience and a finding that the marriage had subsequently broken down.
Decision
16. The First-tier Tribunal did not err in law and its decision stands.

Signed H J E Latter Date: 9 September 2016

Deputy Upper Tribunal Judge Latter