Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/42725/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 June 2016
On 3 August, 2016
Delivered orally

Before

UPPER TRIBUNAL JUDGE GOLDSTEIN

Between

Secretary of State for the Home Department
Appellant
and

MISS OKWUCHI MARYCLAIR OKOFOR
(ANONYMITY DIRECTION not made)
Respondent

Representation:

For the Appellant: Mr P Duffy, Home Office Presenting Officer
For the Respondent: Mr C Mgbeike, a Legal Representative of Messrs Moorehouse Solicitors

DECISION AND REASONS

1. This is an appeal by the appellant (hereinafter called the Secretary of State) against the decision of First-tier Tribunal Judge Keith who following a hearing at Hatton Cross on 20 October 2015 and in a decision promulgated on 2 November 2015 allowed the appeal of the respondent (hereinafter called the Claimant), a citizen of Nigeria, born on 19 December 1993 against the decision of the Secretary of State dated 13 October 2014 to refuse to issue a residence card to the Claimant as confirmation of a right of residence under European Community Law as the spouse of an EEA national exercising Treaty rights in the United Kingdom.

2. The brief immigration history of the Claimant is that she was granted leave to remain in the United Kingdom in 2011 but that she had since submitted three applications for residence cards each of which had been refused.

3. The Secretary of State's letter of refusal was clear that in order to qualify for a residence card the Claimant had to provide evidence to show that she was related as claimed to her EEA family member who was a qualified person exercising free movement rights in the UK in accordance with the 2006 EEA Regulations. On 15 September 2014 the Claimant was encountered by Immigration Officers when a visit was undertaken at her home address in Redhill. The officers noted that there was no furniture or signs of habitation at the property and the bins were empty. There was no evidence the Claimant or her EEA Sponsor resided at this address and the Claimant had not updated the Secretary of State with the new address which would be expected if she had resided there and left. It was therefore believed the Claimant had given the Secretary of State a false address thus preventing the Secretary of State from verifying the genuine nature of her relationship. It was therefore believed that she had entered into a marriage of convenience.

4. Suffice it to say for the purposes of my decision that the Judge, for reasons that were accepted on the evidence, decided that contrary to the Secretary of State's understanding the parties were in a genuine marriage, it was not one of convenience and on that basis he proceeded to allow the appeal.

5. However the Secretary of State, for reasons which will become apparent and not surprisingly, challenged that decision on the following basis:

"It is respectfully submitted that the Immigration Judge has mistakenly found that there was no other issue raised in respect of the 2006 EEA regulations other that the appellant's marriage being one of convenience. At paragraph 14 of the determination the Immigration Judge states (emphasis added):

'It was not disputed that the appellant and sponsor were married (as evidenced by a marriage certificate) or that the sponsor was exercising his treaty rights in working. The sole issue in contention was whether the marriage was one of convenience, based on the inspection at their last known address'.

It is argued that these findings are incorrect and it was not accepted that the appellant's sponsor was exercising treaty rights in the UK. The following paragraphs of the reasons for refusal letter dated 28/10/2015 state the following (emphasis added),

'You have also provided evidence to suggest that your EEA sponsor exercises his treaty rights through employment with Apex Recruitment Agency.

This department has attempted to confirm this employment through internet searches and telephone calls however we were unable to verify that your employment is genuine and subsisting. The burden of proof lies with the applicant and therefore this department is unable to accept that your EEA sponsor is a qualified person as required under regulation 6 of the Immigration (EEA) Regulations 2006.'

It is submitted that this mistake of fact has led to the Immigration Judge failing to make any findings in respect of the qualified status of the appellant's spouse. As such it is submitted that this mistake has resulted in what has become a material impact of the outcome of the appeal and as such amounts to a material error of law.

It is respectfully submitted, similar to the above grounds that the Immigration Judge has failed to take into account and resolve the issue of the appellant's spouse being a qualified person. As this was clearly raised as an issue in the Reasons for Refusal Letter and has been overlooked by the Immigration Judge, the failure to resolve this issue amounts to a material error of law."

6. Mr Mgbeike who represented the Claimant informed me that he now had in his possession additional evidence to show that the applicant was exercising treaty rights either at the date of the hearing before the First-tier Tribunal Judge or indeed at the present time, but he accepted that such additional evidence could form no part of my decision as to whether or not the Judge on the basis of his decision materially erred in law for the reasons submitted by the Secretary of State. He also realistically accepted that whilst the Judge formally found that the Sponsor was exercising treaty rights he gave no reasons for so finding and he simply did not deal with the issue and Mr Mgbeike concluded that "it must follow that the Judge materially erred in law".

7. It is self-evident from the above that the Judge indeed so materially erred in law and that for that reason his decision insofar as he failed to deal with that issue must be set aside.

8. I note however the Judge's positive and reasoned finding of the evidence before him, that the Claimant and her EEA spouse were in a marriage that was not one of convenience. That has not been challenged and that finding will therefore be preserved.

9. In that there has been no finding as to whether or not at the material time the Claimant's EEA Sponsor was exercising treaty rights, I have considered as to how the decision should be re-made. After discussion with the parties and bearing in mind the fact that there is apparently new evidence that has to be the subject of an application to the Tribunal in order for it to be tendered under Rule 15(2)(a) of the Procedure Rules and given that I am told that the Sponsor and the Claimant would now wish to give evidence, that the appropriate course is to remit this case to be heard afresh on this issue to the First-tier Tribunal at the Taylor House Hearing Centre before a First-tier Tribunal Judge other than First-tier Tribunal Judge Keith.

10. It was further agreed that in all the circumstances, having regard to the error of law found, there were highly compelling reasons falling within paragraph 7.2(b) of the Senior President's Practice Statement as to why the decision should not be remade by the Upper Tribunal. It was clearly in the interests of justice that the appeal on this issue be heard and considered in the First-tier Tribunal.

11. For the reasons I have above given and by agreement with the parties, I have concluded therefore that the appeal should be remitted to a First-tier Tribunal Judge other than First-tier Tribunal Judge Keith to the Taylor House Hearing Centre on the first available date. I am informed that for this purpose no interpreter will be required.

12. As I had earlier stated, the positive findings of the First-tier Tribunal Judge in concluding that the Claimant's marriage was not one of convenience will however be preserved.

13. I would add for the sake of completeness that Mr Duffy most helpfully indicated to the Claimant and to her representative, that if there was further evidence that she now wished to tender to demonstrate that the Sponsor is exercising treaty rights then it would be helpful, if such evidence could be forwarded to him at first instance before the remitted hearing date, so that he might consider whether such evidence enabled him in the circumstances to recommend to the Secretary of State that a residence card is issued. For that purpose I note that Mr Duffy has provided to the Claimant's representative his direct email address.

Decision

14. The making of the decision of the First-tier Tribunal involved an error on a point of law such that the decision be set aside save that the positive findings of the Judge that the Claimant's marriage was not one of convenience be preserved.

15. No anonymity direction is made.

Signed Date 3 June 2016

Upper Tribunal Judge Goldstein