Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number IA/36139/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 25th July 2016
On 30th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

Olalekan Asiru Abiodun
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr N Bramble (Home Office Presenting Officer)

DETERMINATION AND REASONS
1. The Appellant applied for a residence card as the spouse of an EEA national. The application was refused as the Secretary of State did not accept that the Appellant had shown that he was a spouse within the meaning of the EEA Regulations or that he was an extended family member. His appeal was, at his request, considered on the papers which were placed before Judge Shepherd at Taylor House on the 12th of November 2015.
2. The Judge found that the Appellant had not shown that the customary marriage to the Sponsor met the requirements for validity as explained in the case of Kareem (proxy marriages - EU law) Nigeria [2014] UKUT 24 (IAC). In addition the Judge found that the evidence, which did show co-operation between the Appellant and his named Sponsor, did not show that they were in a durable relationship. He noted that had the Appellant attended the hearing then that might have assisted but that was their decision and the appeal was decided on the information available.
3. The Appellant sought permission to appeal on the basis that the Judge had failed to consider his length of residence and had not considered article 8. Permission was granted on the basis that the Judge had indicated that there was no Respondent's bundle and it was arguable that it was not enough for the Judge to have concluded that there was sufficient evidence on the file to justly determine the appeal.
4. The Appellant did not attend the hearing listed before the Upper Tribunal. The case was put back to nearly lunch time for him to attend but there was no attendance and no explanation for his absence or an application for the case to be heard later or adjourned. I was satisfied that the relevant notices had been served on the Appellant at the address given in the IAFT-4 form he had completed. I was satisfied that the Appellant had had sufficient notice and would have been aware of the hearing and that I could properly consider the appeal on the basis of the information that was available.
5. At the hearing I indicated to the Respondent's representative that I did not need to hear from him I indicated that I would be finding that there was no error in the First-tier Tribunal decision. I now give my reasons for that decision.
6. The grounds as drafted by the Appellant are completely misconceived. The conclusion at page 7 of the Refusal Letter of the 3rd of September 2014 informed the Appellant that the application had only been considered on the basis of the Immigration (EEA) Regulations 2006. If he wished to have his application considered on any other basis he was advised to go the Home Office website and submit an appropriate application. There was no notice under section 120 of the 2002 Act.
7. By paragraph 400 of the Immigration Rules the Secretary of State is entitled to require a paid application to be made by individuals who wish to have their application considered on private or family life grounds. TY (Sri Lanka) [2015] EWCA Civ 1233 is recent authority which approves the limitation of the matters that can be considered by the First-tier Tribunal in the absence of a notice served under section 120.
8. So far as the grounds as drafted are concerned they are, as I have indicated, misconceived. The Judge was only legally able to consider the application under the EEA Regulations and so committed no error in limiting himself in that way.
9. So far as the grant of permission itself is concerned I regret to say that I do not follow the reasoning of the grant of permission. In EEA marriage cases the leading case is Kareem and the case is clear that it is for an Appellant to show that the marriage is valid under the law of the country in which it was celebrated and also that it is recognised as valid by the state of which the EEA Sponsor is a national.
10. The decision shows that the Judge gave full consideration to this issue. The Appellant had not provided any evidence that would have justified a finding that the marriage was valid following the guidance in Kareem and as no there was no other decision open to the Judge the presence of absence of the Respondent's bundle was irrelevant.
11. With regard to the absence of the Respondent's bundle it is not clear how that could have undermined the Appellant's case. The burden on all issues was on the Appellant and the Appellant's representatives had provided a bundle on the 21st of October 2015 which provided information that was more up to date than anything that would have been in the Respondent's papers.
12. Despite having the benefit of legal representation that bundle did not address the legal issues relating to the validity of the marriage. The Appellant's bundle was properly and fully considered by the Judge when considering the issue of whether the Appellant and claimed Sponsor were in a durable relationship. As he was obliged to focus on the most up-to-date evidence, and did so, I can see no errors in his decision to continue with his consideration of the appeal, the reasoning applied or the findings made. The grounds and grant of permission have no merit and the appeal to the Upper Tribunal is dismissed.
CONCLUSIONS
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside the decision and so the decision of the First-tier Tribunal stands as the final decision on the merits in this case.
Anonymity
The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and I make no order.
Fee Award
In dismissing this appeal I make no fee award.

Signed:

Deputy Judge of the Upper Tribunal (IAC)
Dated: 16th August 2016