Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/30707/2014
IA/31206/2014

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 9 August 2016
On 12 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

SECRETARY OF STATE FOR the HOME DEPARTMENT
Appellant
and

jayminbhai vikrambhai amin (1)
bharti raviya (2)
(no anonymity order)
Respondents

Representation:

For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondent: Ms A Bhachu, instructed by JBR Morgan Solicitors

DECISION AND REASONS

1. The appellant Secretary of State appeals with permission to the Upper Tribunal against the decision and reasons of First-tier Tribunal Judge Andrew that was promulgated on 11 September 2015. Judge Andrew allowed the appeals in the belief that the Secretary of State had failed to show there was an evidential basis for suspecting the respondents' marriage to be one of convenience.
2. Although I heard from both representatives at length, in my opinion the case turns on one relatively narrow issues. Mr Mills indicated that Judge Andrew was wrong in paragraph 3 to find, "The marriage had not been referred to the [Secretary of State] by the Registrar."
3. Mr Mills's argument was developed as follows. At paragraph 4, Judge Andrew referred to having seen the "interviewers comments" and this could only be reference to the "Interview Summary Sheet" that the Home Office had sent to the Tribunal in April 2015. Half way down the first page of that four-page document are several references to s.24. Mr Mills submitted they are references to section 24 of the Immigration and Asylum Act 1999, which is directed to marriage registrars and makes provisions for them to report suspicious marriages.
4. Mr Mills went on to identify (using the immigration instructions provided by Ms Bhachu with her skeleton argument in the First-tier Tribunal) that the Home Office could arrange an interview where a marriage registrar had made such a report. He acknowledged that the same instructions suggested that an interview would not be required where there was evidence of cohabitation, as here, but argued that in light of there being mixed sources (such as evidence of cohabitation and a report of a suspicious marriage) it was open to the Secretary of State to investigate, for example by calling the parties to an interview.
5. Mr Mills also submitted that it was open to the Secretary of State to call any person for interview. Given the reasons for my decision set out below I need not decide this general issue.
6. It follows from what I have said at [4] that the Secretary of State had a reason to call the couple to be interviewed and this undermined the conclusions reached by Judge Andrew.
7. Ms Bhachu accepted this argument. At no time had she sought to mislead either Tribunal. She had not been aware that the mention of S24 in the Interview Summary Sheet was evidence that a report of a suspicious marriage had been made until Mr Mills explained its meaning. The fact that I had been ignorant of this fact, as had Ms Rands who presented the case on behalf of the Secretary of State before Judge Andrew, leads me to accept that there had been no attempt to mislead.
8. Ms Bhachu suggested that even with this knowledge any error could not be material because the evidence regarding cohabitation was extensive. Recent judgments of the Court of Appeal, namely Agho and Rosa indicated that the burden lay on the Home Office to show that a marriage is one of convenience and in light of all the evidence the outcome would be the same.
9. Although I might have some sympathy for pragmatic reasons with such an approach, it is not one I can condone in law. The upshot of the fact that the registrar had reported the marriage to the Home Office was a reason for them to question whether the marriage was one of convenience. Although current jurisprudence indicates that it is for the Home Office to prove a marriage is one of convenience, it is trite law that to do so all the available evidence must be considered.
10. The approach taken by Judge Andrew may have been sustainable but for the fact that she was unaware of the relevance of the mention of section 24 in the interview summary sheet and no one brought it to her attention. As a result, she erred in her approach and prevented the Home Office from mounting its case in full. The only appropriate remedy is to put the parties back in the situation they were and remit this appeal for a fresh hearing during which all the evidence and arguments can (and no doubt will) be mustered by both sides.
Decision
The decision and reasons of First-tier Tribunal Judge Andrew contains an error of law and must be set aside.
The appeal is remitted to the First-tier Tribunal for a fresh hearing before any judge other than Judge Andrew.
It will be for the First-tier Tribunal to set any directions.

Signed Date

Judge McCarthy
Deputy Judge of the Upper Tribunal