Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/32048/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On April 11, 2017
On April 21, 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MR UMER AZEEM
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Schwenk, Counsel, instructed by TM Fortis Solicitors
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Pakistan. He applied on April 4, 2015 through his solicitors for a residence card as confirmation of a right to reside in the United Kingdom. The respondent refused his application on September 18, 2015.
2. The appellant appealed that decision on October 2, 2015 under Regulation 26 of the Immigration (EEA) Regulations 2006 and Section 82(1) of the Nationality, Immigration and Asylum Act 2002. His appeal came before Judge of the First-tier Tribunal Malik (hereinafter called the Judge) on June 24, 2016 and in a decision promulgated on July 11, 2016 the Judge dismissed his appeal. That decision was appealed on July 22, 2016 and Judge of the First-tier Tribunal O’Garro refused permission to appeal. The appellant renewed his appeal to the Upper Tribunal and Upper Tribunal Judge Grubb granted permission to appeal on December 9, 2016 and the matter came before me on the above date for an error of law hearing.
3. I do not make an anonymity order in this case.
SUBMISSIONS
4. Mr Schwenk submitted that the Judge had erred in her approach to this appeal by failing to give any consideration to the fresh evidence. Whilst he accepted the issue remained the same he argued that the Judge was required to consider the additional statements and oral evidence as he submitted that evidence was not materially the same. There was further correspondence contained in the large bundle and he submitted that it was not possible to say that if this evidence had been properly considered the result would not have been different.
5. Mr Harrison relied on the Rule 24 response dated January 4, 2017 and submitted that the Judge was concerned with whether there was any fresh evidence that would have altered the decision the marriage was a marriage of convenience. What happened afterwards mattered little as it did not demonstrate it was a genuine marriage when they married. Immigration Judge Parker had previously found the marriage was not genuine and there was nothing in the new statements or documents that suggested anything evidentially had changed.
6. Mr Schwenk commented that if Mr Harrison’s submission was accepted then there would be no circumstances in which the appellant could succeed. He referred to the daughter’s letters and oral evidence and the evidence of the other witnesses who had provided statements.
7. I reserved my decision.
FINDINGS
8. This is the appellant’s second attempt to obtain a residence card. His first application was refused by Immigration Judge Parker and despite a number of attempts to appeal that decision the appellant failed.
9. The appellant re-submitted a fresh application and in support of this application he provided additional evidence including witness statements from family and friends. Those statements are contained in a bundle consisting of over 800 pages.
10. Mr Schwenk agreed that the Judge was concerned with whether the appellant’s marriage was genuine when it was entered into. If it was a marriage of convenience then the fact they were still together mattered not.
11. The Judge correctly reminded herself of the correct approach to take where there has already been a similar application. Where the issues and evidence on the first and second appeals are materially the same the second tribunal should treat the issues as settled by the first decision rather than allowing the matter to be relitigated.
12. I was invited to look at the documents from pages 591 onwards. Most of this evidence post-dates the date of the marriage and it is not disputed that the appellant and sponsor have lived together in the same house. The issue is not whether they lived together but whether their marriage was a marriage of convenience At paragraph [28] of her decision the Judge referred to the “plethora of correspondence” and properly noted that this was not determinative of a genuine marriage and she noted these documents were similar to the documents placed before Immigration Judge Parker.
13. There are statements from three witnesses, the appellant and sponsor as well as letters from the sponsor’s daughter. These can be found between pages 1 to 16 and pages 28 and 564.
14. The statements from the appellant and sponsor take the matter no further. They attended and gave evidence at the original hearing before Immigration Judge Parker. Their updated statements must be looked at against that background and that is exactly what the Judge did in this appeal.
15. There are statements from, Muhammad Ali, Waquar Dilawer and Azmat Tufail. The Judge set out their evidence in her decision.
16. Mr Ali stated that he had rented them accommodation since August 3, 2012 and he described that they seemed a happily married couple. Mr Dilawer knew the appellant in Pakistan and he attended their Islamic wedding in October 22, 2012. He too attested to the strength of their relationship. Mr Tufail stated he had known the appellant since 2010 and had moved to where they lived in 2015 and had since visited them on a regular basis.
17. The sponsor’s daughter submitted two undated letters and attended the hearing and gave oral evidence. The Judge referred to her evidence in paragraph [19] of her decision and noted that she did not attend the wedding as she could not take the time off from her studies.
18. At paragraph [29] the Judge dealt with the witness evidence. She noted that none of these witnesses had given evidence previously and she noted that they all confirmed the appellant and sponsor were married and living together-something that is not disputed.
19. Mr Schwenk’s challenge was to the treatment of this evidence. Two of the three witnesses were personal friends of the appellant, one was the sponsor’s daughter who was not present when the marriage was entered into. Her visits to her mother’s address occurred after she and the appellant married. The only other evidence related to the landlord’s evidence.
20. Mr Schwenk’s submission was that the Judge failed to properly engage with what the witnesses said because she took the view the matter had already been addressed.
21. The Judge had the statements before her and it was open to her to attach such weight as she felt appropriate. These witnesses were all known to the appellant and sponsor and were regular visitors to their home.
22. Whilst there were further statements I am satisfied that the Judge was entitled to attach such weight as she felt appropriate to their evidence having heard them give oral evidence.
23. She clearly found nothing in their evidence that she felt would require her to revisit the original decision and their evidence in truth added nothing to what Immigration Judge Parker had already considered. Her finding that the issues and evidence were materially the same was a finding that is open to her and there is no material error in law.

Notice of Decision
24. I find no error in law and the original decision shall stand.

Signed Date April 12, 2017

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

I do not make a fee award because I have dismissed the appeal.

Signed Date April 12, 2017

Deputy Upper Tribunal Judge Alis