Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/36533/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 November 2016
On 30 November 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MS MARIA POLLAKOVA
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr D Clark, Senior Home Office Presenting Officer
For the Respondent: Mr K Hasan, counsel instructed by Kalam Solicitors

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Majid, promulgated on 23 October 2016. Permission to appeal was granted by First-tier Tribunal Judge Parkes on 24 October 2016.

Anonymity
2. No direction has been made previously, and there is no reason for one now
Background
3. On 9 September 2014, a decision was taken to remove the respondent from the United Kingdom. Such action was considered justified on the grounds of abuse of rights in accordance with regulation 21B(2) of the Immigration(European Economic Area) Regulations 2016. The statement of reasons stated that the respondent "assisted another to enter or attempt to enter into a marriage or civil partnership of convenience." Reference was made to the respondent's interview which also took place on 9 September 2014, following which her marriage was deemed one of convenience. Attached to the decision was a reasons for refusal letter concerning a Mr Anthony Chisom Brown, a Nigerian national, whom it transpires is the respondent's husband.
4. The appeal of the respondent's husband against an earlier decision to refuse a residence card on 29 November 2012, was dismissed by Judge Hamilton on 15 April 2013. On that occasion, the judge heard evidence from the respondent in this appeal, her husband and her brother, but concluded that the relationship in question was casual and impermanent.
The hearing before the First-tier Tribunal
5. At the hearing before First-tier Tribunal Judge Majid, the respondent was the only witness. Her husband, Mr Brown had apparently returned to Nigeria. Judge Majid allowed the appeal, having found that the respondent was in a genuine relationship with her husband. He also departed from Judge Hamilton's findings because the latter "perhaps did not have a lot of the new evidence showing that the (respondent) deserves EU treatment ?"
The grounds of appeal
6. The grounds of appeal in support of the application were on three bases. Firstly, it was argued that the judge failed to make any findings under the Regulations, including whether the marriage was one of convenience. He had also failed to consider the guidelines in Papajorgji (EEA spouse - marriage of convenience) Greece [2012] UKUT 00038(IAC). Secondly, it was submitted that the judge failed to make any findings on the marriage interview, why he had discounted the reasons for refusal or why he had departed from the findings of Judge Hamilton. Thirdly, the judge failed to follow the guidelines in Devaseelan [2002] UKIAT 00702.
7. Permission to appeal was granted on the basis that the grounds raised arguable points.
8. The respondent filed no Rule 24 response.

The hearing
9. Mr Clark reminded me that this was an abuse of rights case. While at [23] the judge was happy that the relationship was genuine, at [10] he failed to mention Judge Hamilton's decision when referring to evidence considered; he failed to deal with the substance of marriage interview and made no findings in respect of either.
10. At [16] Mr Clark argued that the judge mentioned the issue of fertility treatment, but Judge Hamilton made contrasting findings regarding this at [31] of his decision and a more reasoned determination was needed to depart from that finding. Mr Clark argued that there was no engagement with this determination; no recognition that it was a starting point and no explanation as to why the judge departed from it.
11. Mr Hasan asked me to note that the judge had recorded the evidence. He argued that the issues were "probably" in the judge's mind but conceded that he failed to mention Devaseelan or why he departed from the previous judge's findings. Mr Hasan argued that the judge gave reasons for his findings which were based on the evidence contained in a185-page bundle. While he failed to mention the discrepancies, Mr Hasan argued that this was not material because he gave adequate reasons. He believed the appellant and it would not make any difference to the outcome of appeal. He conceded that there was no reference to the issue of abuse of rights in the decision.
Decision on error of law
12. There were material errors of law in the judge's decision for the following reasons.
13. Firstly, there was no recognition by the judge as to the nature of the appeal under the Regulations. At [1] the notes that the appeal concerns the refusal of "leave to remain" and at [24] that the case fell within "the relevant immigration law." There is no mention of regulation 21B(2) nor any reference to the allegation made against the respondent. He therefore failed to make any findings in relation to the relevant Regulations.
14. The basis of the Secretary of State's conclusion that the respondent had entered into a marriage of convenience was the conflicting answers she and her husband gave when interviewed on 9 August 2014. Nine separate areas of concern were highlighted in the reasons for refusal letter relating to the EEA sponsor. In addition, the entire interview record, consisting of 168 questions and answers was before the judge. There is no mention in the judge's decision of either the interview record or even the nine matters identified by the respondent. Nor is there any mention or assessment of the discrete findings made by First-tier Tribunal Judge Hamilton in the appeal of the EEA sponsor. Accordingly, the judge's decision and reasons suffers from a failure to give adequate reasons for his favourable findings as to the relationship in question.
15. Lastly, the judge ought to have taken the determination of Judge Hamilton as the starting point, Devaseelan considered. The judge did not mention the aforementioned case and nor did he apply it. The sole mention of the previous decision was a suggestion at [23] that Judge Hamilton "perhaps did not have a lot of the new evidence." That comment did not suffice to address the previous judge's adverse findings, which were reached after the judge had the benefit of hearing oral evidence from the respondent, her spouse and brother. By contrast, Judge Majid heard only from the respondent.

Decision
The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Taylor House by any judge except First-tier Tribunal Judge Majid.

Signed Date

Upper Tribunal Judge Kamara