Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/39028/2014

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 19 September 2016
On: 20 September 2016

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

MARYAM MOHAMED SHEIKH
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr O Idemudia of Obaseki Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Following a grant of permission to appeal against the decision of the First-tier Tribunal allowing the appellant's appeal against the respondent's decision of 17 September 2014 to refuse her application for a residence card under the Immigration (European Economic Area) Regulations 2006 (the "EEA Regulations"), it was found, at an error of law hearing on 6 June 2016, that the First-tier Tribunal had made errors of law in its decision. The decision was accordingly set aside.

Background to the Appeal
2. The appellant, a national of Somalia born on 27 July 1995, claims to have entered the United Kingdom in January 2014 after having married her husband, an Italian national of Somali origin, in Somalia on 18 January 2013. On 17 July 2014 she applied for an EEA residence card as the family member of an EEA national. Her application was refused by the respondent on 17 September 2014. Since the refusal, the appellant has given birth to a child on 22 February 2015.
3. The respondent, in refusing the appellant's application, was not satisfied with the evidence produced in relation to the EEA national sponsor's employment in the UK and therefore did not accept that he was a qualified person exercising treaty rights, as defined under Regulation 6 of the EEA Regulations. The respondent, furthermore, was not satisfied with the evidence produced in regard to the relationship between the appellant and the sponsor, since the documents were photocopied, and therefore did not accept that the appellant was the family of an EEA national. In addition, the respondent did not accept that there was sufficient documentation to suggest that the appellant was in a durable relationship with the sponsor for the purposes of Regulation 8(5) of the EEA Regulations and therefore considered that she had failed to demonstrate that she was an extended family member of an EEA national. The respondent accordingly refused the appellant's application.
Appeal before the First-tier Tribunal
4. The appellant appealed that decision and her appeal was heard on 6 November 2015 by First-tier Tribunal Judge Mozolowski. Judge Mozolowski noted that there had been a change in the sponsor's employment and, whilst she was not satisfied with the reliability of the evidence of his previous employment, she accepted that he was currently employed and that he was therefore a qualified person for the purposes of the EEA Regulations. She also accepted that the appellant and sponsor were married and that the appellant was therefore entitled to an EEA residence card. She accordingly allowed the appeal.
5. The respondent sought permission to appeal to the Upper Tribunal on the grounds that the judge had failed to provide adequate reasons for accepting that the appellant and sponsor were married, given her otherwise adverse credibility findings. The respondent no longer disputed that the sponsor was exercising Treaty rights. Permission to appeal was granted to the respondent.
Appeal in the Upper Tribunal
6. At a hearing on 6 June 2016 there was no appearance by or on behalf of the appellant. I found errors of law in the judge's decision and set it aside, as follows:
"DECISION ON THE ERROR OF LAW
1. This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal allowing Ms Sheikh's appeal against the decision to refuse to issue her with a residence card under the Immigration (European Economic Area) Regulations 2006 as the family member of an EEA national.
2. For the purposes of this decision, I shall hereinafter refer to the Secretary of State as the respondent and Ms Sheikh as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.
3. The appellant is a citizen of Somalia, born on 27 July 1995. On 17 July 2014 she applied for a residence card as the spouse of Abdi Fatah Sheikh Mohamed, an Italian national, whom she claimed to have married in Somalia on 18 January 2013. It is claimed that she came to the UK in January 2014.
4. The respondent refused the application on 17 September 2014, on two main grounds: firstly, that the appellant had failed to provide sufficient evidence to demonstrate that her EEA family member was a qualified person; and secondly, that she had failed to provide sufficient evidence of her relationship to the EEA national sponsor. With regard to the first ground, the respondent had been unable to verify the sponsor's claimed employment from the documents submitted due to an inability to contact or locate the company for which he claimed to work and due to discrepancies in his wage slips. With regard to the second ground, the respondent considered the application on the basis that the sponsor was claiming to be an extended family member of the appellant, but found insufficient evidence of a durable relationship.
5. The appellant appealed against that decision. Her appeal was heard in the First-tier Tribunal on 6 November 2015, by First-tier Tribunal Judge Mozolowski. Judge Mozolowski noted that there had been a change in the sponsor's employment from 1 January 2015 when he had started working for Mcdonald's. Whilst she was not satisfied with the reliability of the evidence of his previous employment, she accepted that he was currently employed and that he was therefore a qualified person for the purposes of the EEA Regulations. She also accepted that the appellant and sponsor were married and that the appellant was therefore entitled to an EEA residence card. She accordingly allowed the appeal.
6. The respondent sought permission to appeal to the Upper Tribunal on the grounds that the judge had failed to provide adequate reasons for accepting that the appellant and sponsor were married, given her otherwise adverse credibility findings. The respondent no longer disputed that the sponsor was exercising Treaty rights.
7. Permission to appeal was granted to the respondent on 28 April 2016.
8. The appeal came before me, but there was no appearance by or on behalf of the appellant. The notice of hearing appeared to have been properly served on the appellant's representatives and on the appellant at the address last given to the Tribunal. Mr Tufan confirmed that that was also the most recent address held by the respondent. Accordingly there was no reason not to proceed with the appeal in the appellant's absence.
9. Having heard submissions from Mr Tufan I agreed that the judge had made errors of law in her decision such that it had to be set aside and re-made.
10. The judge's reasoning in regard to the appellant's marriage and relationship is difficult to follow. The judge made various adverse findings against the appellant. At [3] she found that a durable relationship had not been sufficiently documented. At [11] she noted that a council tax bill issued at a time when the appellant and sponsor claimed to be living together referred to a single person discount, albeit that there was a subsequent joint council tax demand. At [18] she found that the appellant had provided unreliable documentary evidence in relation to the sponsor's previous employment. At [16] she found several aspects of the appellant's evidence to be unsatisfactory and lacking in credibility, in particular in regard to the marriage certificate that had been produced, including how it was obtained and concerns about its contents. However, on the basis that the appellant and sponsor both attended the hearing, that a birth certificate had been produced showing that they had a child together and that there was a joint council tax demand, the judge accepted that they lived together and were probably likely to be married.
11. In view of the various concerns the judge had about the reliability of the evidence, including in particular the marriage certificate, I would agree with the respondent that she has not provided adequate reasons as to why she ultimately concluded that the appellant and sponsor were married. Accordingly, I set aside her decision.
12. Mr Tufan suggested that, in the interests of fairness, given that the appellant and sponsor were not present at the hearing, the decision should be re-made at a further hearing where they would have an opportunity to attend and explain their absence, and to provide any further oral and documentary evidence.
13. The appellant's appeal will therefore be listed for a resumed hearing in the Upper Tribunal in order for the decision to be re-made on the question of whether or not the appellant and sponsor are genuinely married or in a durable relationship."
Resumed Hearing
7. The appeal then came before me again on 19 September 2016. The appellant and sponsor were in attendance and were legally represented. They both gave oral evidence.
8. The sponsor explained that he had obtained his Italian citizenship when he was 18 years of age, when his father applied for citizenship for the whole family. He lived in Italy for several years until he came to the UK in 2013. His daughter, through a previous relationship, was born in Italy. He was related to the appellant as a first cousin, as their fathers were brothers. They met when he was visiting Mogadishu at the end of 2012 and the marriage was arranged and took place a month or two later at his wife's father's house. He remained in Somalia after the marriage for a few days and then returned to Italy. He did not have any evidence of the wedding, although he had given photographs to his previous solicitors which he had expected them to send on to the Home Office. He had a video of the wedding. His wife joined him in Italy, on a Schengen visit visa, and stayed there with him for a few weeks until they moved to the UK. The visa was obtained at the Italian Embassy in Kenya and was stamped in her passport. With regard to the marriage certificate, there were two different ones. The first one which was submitted with the application was a copy, although he had believed that it was an original. He then produced the original at the previous hearing before the First-tier Tribunal. When it was not accepted as being sufficient he obtained another copy, but this time bearing all the correct government stamps. His uncle obtained the certificates and he contributed to the cost.
9. The appellant gave similar evidence and both parties then made submissions.
10. Mr Melvin submitted that there was insufficient evidence to show that the couple had genuinely contracted a marriage. He accepted that the appellant and the sponsor had a child together and that they lived at the same address but he submitted that that was not sufficient to point to a genuine and subsisting relationship. There was no marriage for the purposes of Regulation 7. There was no right of appeal in relation to Regulation 8, as held in the new decision of the Upper Tribunal in Sala (EFMs: Right of Appeal) [2016] UKUT 00411.
11. Mr Idemudia submitted that there was a genuine marriage, which had been contracted in accordance with tradition, and a genuine and subsisting relationship.
Consideration and findings
12. Having now had the benefit of hearing from the appellant and sponsor, I have no hesitation in concluding that there is a genuine and subsisting relationship between them. Their evidence was entirely consistent as to the circumstances of how they met, the details of the marriage ceremony, the evidence of their marriage, where they went after the marriage (for a day trip to Jazira), when they left Somalia, where they went from Somalia, how the appellant entered Italy and how they came to the UK. The sponsor gave what I considered to be an honest and open explanation as to why the appellant had applied for a visitor visa for Italy rather than a spouse visa, as it was expected to be the quicker route, and he admitted that that was why they were now facing the current situation of having to undergo an appeal. Mr Melvin submitted that the fact that the couple had a baby together, as proved by the DNA evidence, and that they lived at the same address, did not necessarily mean that they were in a genuine relationship. However, having heard from both parties, I do not agree with that. On the basis of the oral evidence and the documentary evidence I accept that the appellant and sponsor have lived together since the appellant's arrival in the UK and that they do so in a relationship as a couple.
13. Whilst Judge Mozolowsi was unable to find that there was a durable relationship, and rightly so since there had been less than two years from the sponsor's entry to the UK to the date of the hearing, circumstances have moved on and the couple have been together now for over two years. I therefore have no hesitation in concluding that the couple are in a durable relationship for the purposes of Regulation 8(5) of the EEA Regulations. However, as Mr Idemudia accepted, if the Upper Tribunal's decision in Sala is to be followed, the appellant is precluded from relying upon that as a basis for the appeal being allowed. The appeal can be allowed only if it is found that the appellant is a family member of the sponsor for the purposes of Regulation 7.
14. The relevant question, therefore, is whether the appellant and sponsor are in fact married. It is relevant to note that the respondent's reason, in refusing the appellant's application, for not being able to accept that she was related as claimed to an EEA national, was that the evidence of the relationship, including the marriage certificate, was insufficient as it was photocopied. Furthermore, the respondent's grounds of appeal challenging Judge Mozolowski's acceptance of the marriage include the fact that there was no evidence of paternity of the appellant's child. However I now have the benefit of DNA evidence confirming the paternity of the child, which Mr Melvin accepted, as well as the original marriage certificate, which was produced only on the day of the hearing in the First-tier Tribunal. I have also had the benefit of hearing from the appellant and sponsor.
15. With regard to the marriage certificate, I note that the reliability of the document was questioned by the Home Office Presenting Officer before Judge Mozolowki and is also questioned by Mr Melvin. However, I found the explanation given by the sponsor about the document to be a plausible one. He explained that his marriage was a traditional one and, as such, occurred without the routine issuing of a marriage certificate, as would occur in Europe. Accordingly, practical steps had to be taken to obtain a certificate as proof of the marriage for the purposes of making an application and, as it was to be presented in the UK, it was considered appropriate for it to contain a translation in English. As for why there were two marriage certificates, the sponsor explained that a second one was obtained by his uncle, the appellant's father, when it became apparent that the previous document was not considered to be satisfactory, and his uncle ensured that the second one had all the relevant official stamps from the Somali authorities. I find nothing inherently implausible about that explanation. When taken together with the consistent account given by the appellant and sponsor about the marriage itself, including the identity of the witnesses, the dowry, the place where it took place, and the fact that the couple have a baby together and have been, and continue to, live together in the UK, I accept that the couple contracted a genuine marriage which was accepted as valid in Somalia and would thus be considered as valid in the UK.
16. Accordingly, I reach the same conclusions as Judge Mozolowsi and accept that the appellant is married to, and the family member of, an EEA national exercising Treaty rights in the UK and that she is therefore entitled to an EEA Residence Card as such.

DECISION
17. The original Tribunal was found to have made an error of law. I re-make the decision by allowing the appeal under the EEA Regulations.

Signed Date 20 Sep 2016
Upper Tribunal Judge Kebede