Tribunal decisions

The decision

IAC-tH-cp-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29656/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 February 2017
On 14 March 2017
Prepared 23 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

Mr Hafeez Olalekan Olasunkanmi Adesanya
(anonymity direction NOT MADE)
Appellant
and

THE Secretary of State FOR THE Home Department
Respondent

Representation:
For the Appellant: Mr Aborisade of O A Solicitors
For the Respondent: Mr P Armstrong, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant, a national of Nigeria, date of birth 10 December 1987, appealed against the Respondent’s decision, dated 13 August 2015, to refuse a residence card with particular reference to Regulations 7 and 8 of the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations). His appeal was dismissed against that decision by First‑tier Tribunal Judge Courtney (the Judge). Permission to appeal the judge’s decision was given on 25 August 2016. On 20 October 2016 in a determination promulgated I concluded that the judge had made no error in finding that a claimed marriage between the Appellant and his French national wife, Ms Eyango, which was carried out by proxy, was not recognised for the purposes of European law in the light of the cases of Kareem [2014] UKUT 00024 and TA (Kareem explained) [2014] UKUT 316. At the time the issue was argued that the judge had failed to consider the alternative argument which had been run and determined as to whether or not the Appellant and Ms Eyango were in a durable relationship and that she was in effect an extended family member for the purposes of Regulation 8 of the 2006 Regulations. The Secretary of State had in the reasons for refusal concluded that that claim was not sustainable for not only had the Appellant failed to provide lawful evidence of his marriage but more particularly the evidence had not been provided that they were in a durable relationship. Accordingly the Secretary of State had concluded that the evidence had not been provided and the requirements of Regulation 8(5) had not been met. At the time that I considered this matter and gave my decision in December 2016, the position remained that it was still arguable whether or not the case of Sala (EFMs: right of appeal: Albania) [2016] UKUT 411 was being subject to challenge.
2. The position was therefore left open for a further hearing which I duly heard on 23 February 2017. At the hearing I raised with the parties that Sala was regarded as good law and was not subject to appeal. This was not a case where a residence card had ever been given: It was a first time application for a residence card. Accordingly differences arising under Regulations 7(3), 8(3) of the 2006 Regulations did not come into play.
3. I indicated to the parties that my preliminary view was that there was no right of appeal against that element of the decision in the light of Sala. Mr Armstrong agreed with that point. Mr Aborisade made no submissions on the point. I decided there was no right of appeal. Nevertheless, in case that conclusion is found to be wrong, I indicated that I would hear evidence from the Appellant, lest the position in this respect be changed, in relation to the claimed durable relationship.
4. At the outset of the appeal, I was told by Mr Aborisade that the Appellant’s wife and Sponsor was absent, having learnt of the death of her French mother on 22 February and his wife, the Sponsor, had gone to France. The funeral was said to take place on 25 or 26 February 2017.
5. There was no evidence advanced to support her departure other than an air fare and documents related to car hire in France.
6. No request was made for an adjournment, Mr Armstrong twice pointed out the issue, but no request was made by Mr Aborisade. The position was only the Appellant was giving evidence.
7. The Appellant’s bundle contains a statement from the Appellant, the Sponsor and his brother-in-law. There was no statement from either the Appellant’s uncle or any family member or any friend who had knowledge of the Appellant and his claimed relationship with the Sponsor.
8. The explanation for the absence of the Appellant’s uncle was that he was a taxi driver who could not take time off work. Similarly the Appellant said that his brother-in-law was working and could not attend. The Appellant was unable to identify why others, friends or family members did not attend the hearing to speak on his behalf nor had they provided statements, letters or other intimations of support for him and the claimed relationship between him and the Sponsor.
9. The Appellant relied upon a very short witness statement sworn on 26 October 2015 which essentially addresses the marriage that had taken place and the involvement of his sister who had at one time housed him after he had been living with his uncle. The Appellant’s sister was not available to attend, it was said, as a result of childcare problems. The Appellant’s statement gives no particulars of the nature of the relationship that he and the Sponsor have, any hobbies shared or pastimes, individual interests, their way of life or anything about themselves. There was just a general claim that they were in a relationship. The evidence of the Sponsor was similarly very short in a statement dated 26 October 2015. Nothing further had been produced and she simply asserted that it was a genuine marriage. She gives no particulars of their life together other than to say that is what they have. In answer to my question the Appellant said the Sponsor like watching West African movies and walking along lakesides. The Appellant was vague about his mother in law’s name and age, thought she had died of cancer, did not know when she had died and did not have contact with his wife abroad.
10 The Appellant’s brother-in-law’s evidence is contained in a short statement and essentially maintains that there is the relationship between the Appellant and Sponsor. He claimed to have been at his home when Immigration Officers visited and he denies that when asked he replied that he said he had no knowledge of the Appellant and his European Union partner. He denied that he had said that his brother, who had the same surname to him, used to live with them but had since moved. He denied that he had said only he and his children lived there. The position therefore was that, in effect, the Appellant says that the evidence supports his claim as to his occupation of those premises.
11. The statement of the Appellant’s sister (who I have said did not attend the hearing) is dated 21 October 2015 and again contains bare information as to the ongoing relationship claimed between the Appellant and Sponsor.
12. The only document, I was taken to, which identifies the Appellant and Sponsor together is in fact a tenancy agreement which contains both their names and relates to a period of a tenancy between May 2015 and May 2016. There is nothing from the landlord of the premises at 89 Neville Close, Mr Tolu Onisori, which confirmed his knowledge of their occupation. There are one or two documents which record the presence of the Appellant at an address said to be shared with the Sponsor and similarly from the Sponsor at several addresses. I have been presented with photographs which I deliberately went through one by one with the Appellant to identify with whom he appeared in the pictures, when they were taken and so forth. They identify, so he says, the Sponsor and himself or by the Appellant on his own in various situations at times, sometimes in 2013 or 2014 or at times which he does not recall.
13. The cross-examination of the Appellant essentially was aimed at his general credibility. Of particular concern in addressing those matters was that the Appellant had entered the UK in 2004, at which time he would have been about 17 years of age. In circumstances that are unexplained, he surprisingly lost his passport at some point. He has no idea on what basis his entry to the UK was effected. He has no idea of anything about the particulars within the passport. It is enough to say that, having lost the passport, he did not report the loss to the police and he has never made any attempt to acquire a new one from the Nigerian embassy in the United Kingdom. The Appellant contends that in fact for a period until about 2013/2014 he did nothing whatsoever about having a passport and was content to leave it from time to time to general requests of his uncle who palmed him off with excuses which amounted to procrastination. The Appellant’s uncle Idris Onisori did nothing to obtain a replacement or to deal with the Appellant who remained in the United Kingdom without status, without working, without undergoing education or seemingly doing anything, as he claimed, for years.
14. Similarly the Appellant claimed he was content that he should be looked after financially by his uncle for a period of time, then his sister, by other family members and ultimately the Sponsor. He has, on his case, never worked in the United Kingdom and has never travelled outside the United Kingdom because of the lack of a passport. Ultimately the only claim made to regularise his position came following the claimed proxy marriage to the Sponsor.
15. Having considered those matters, I found it difficult to decide whether or not the Appellant was being completely blithe and willingly avoiding the consequences of his preference of life in the United Kingdom to life in Nigeria, and to remain here in the manner in which he has, or whether it was simply he went underground and could never find a way to surface until after the claimed marriage.
16. I essentially have no information about their life together, what they do together, where they go and how their life has proceeded now for a number of years. On such very limited evidence as I have, I have considerable reservations about the reliability of the claim that the Sponsor has gone abroad. If she has, it is not apparent why it was necessary to do so to avoid a hearing today if the funeral was on 25 February 2017 in France. It is also striking that no application for an adjournment was made, bearing in mind the significance of the issue being run, that there would at least with appropriate evidence of the death of the mother be a basis for an adjournment. No such application was contemplated by Mr Aborisnde and I do draw an adverse inference from the absence of her evidence, as well as the absence of the other witnesses and the absence of the uncle who did not make any statement at all.
17. If it is necessary to do so, I find that the Appellant is not a credible and reliable witness of fact. I find that the Appellant is not in a durable relationship with the Sponsor. I have the gravest reservations about the reliability of the other evidence again which has not been tested by way of cross-examination through the witnesses absence. The Appellant has experienced solicitors acting for him and in the circumstances I can only assume and proceed on the basis that the representation is competent and has properly assessed the needs and the proper presentation of the evidence relating to this part of the claim. In the circumstances therefore, irrespective of the issue of whether or not it is open to me to consider an appeal by a person as an extended family member, I find that on the evidence before me there is none to show on a reliable basis he discharged the burden of proof upon a balance of probabilities that, as at the date of the Respondent’s decision or the date of the hearing, more importantly, he was such a person.

NOTICE OF DECISION
The appeal on all grounds is dismissed.

ANONYMITY ORDER
There is no requirement or request made for anonymity and no order is appropriate.

FEE AWARD
A fee of £80 was paid.
The appeal has been rejected and accordingly no fee award is appropriate.

Signed Date 10 February 2017
Deputy Upper Tribunal Judge Davey