Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/44074/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 July 2016
On 9 August 2016
Decision given orally at the hearing

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

Muhammad Mujtaba Hashmi
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr R Claire of Counsel, Law Lane Solicitors
For the Respondent: MR L Tarlow, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant in this case is a citizen of Pakistan born in March 1992. He came to Britain as a student and thereafter applied for the issue of a residence card as a family member of an EEA national exercising treaty rights. That application was refused. The appellant appealed and the appeal came before Judge of the First-tier Tribunal Nicholls on 12 October 2012.

2. The judge heard evidence from the appellant and from his wife, a Romanian national, and in a thorough determination set out her findings of fact in paragraphs 15 onwards. In particular, in paragraph 19, she emphasised that she had had the benefit of seeing both parties to the marriage, hearing their testimony and considering the interview records of the interviews conducted with them both. The conclusion of the judge was that this was a genuine marriage and that the wife was exercising Treaty rights.

3. Some time later, on 28 October 2014, the appellant attended a marriage of a friend of his with an EEA national. That marriage was raided by the Immigration Service because it was a suspected sham marriage. It appears from the papers before me that although the marriage did not go ahead on the date when the marriage ceremony was raided it did go ahead on another occasion so had it been a suspected sham marriage then that is possibly shown to be incorrect by the fact the marriage was able to go ahead on a later occasion. There is no evidence in the papers from the Secretary of State regarding that marriage. In any event the appellant was interviewed and in fact it appears that he was at one stage handcuffed. He answered questions put to him about his marriage: in particular, he was asked if his wife was working and he said that she was not. The context of that question is unclear: it is unclear whether or not he had in mind that she was not working on that day or whether she had ceased work altogether. He was also asked about his telephone numbers for his wife and why there were not photographs of her on his mobile phone. At that stage the Secretary of State decided to issue the Section 10 notice which followed the relevant law in Regulation 19, but following the terms of Regulation 26, meant that the appellant had an in country right of appeal.

4. The appeal came before Judge Thomas. There was no attendance by or on behalf of the appellant on that occasion. Judge Thomas heard submissions from the Presenting Officer and concluded that despite the fact there was some evidence before her that the appellant's spouse was working, the appellant had not addressed any of the issues detailed in the decision against him and that the matters raised by the respondents remained, it was stated, unchallenged. The judge stated that the appellant had provided no evidence to the Tribunal of either his immigration or his marital status. There was no marriage certificate and no evidence to prove that they were living in a marital or a durable relationship. It is most unfortunate that the judge did not have before him the determination of Judge Nicholls two years before.

5. The judge concluded that the appellant had not proved to the required standard that he had valid immigration status in the United Kingdom or that he was married to an EEA national exercising Treaty rights as a worker here and therefore the judge concluded that the decision was justified. The judge reached that conclusion despite the evidence that the appellant had married in Slough on 6 September 2012.

6. The decision of the judge to dismiss the appeal was then appealed in the First-tier, permission was then refused but permission was granted by Upper Tribunal Judge Reeds in the Upper Tribunal. She pointed out that whilst the judge had found that he had not provided evidence of his marital status that had not been disputed by the Secretary of State and that he had been granted a residence card by reason of his marriage to an EEA citizen and the issue was whether or not he would cease to be a family member of an EEA national who was exercising Treaty rights.

7. The matter has now come before me and usefully I have the determination of Judge Nicholls and also the detailed notes of the interview. It is clear that after the interview there was a telephone call from a woman purporting to be the appellant's wife. I have been able to consider all the documentation but in the light of the findings of Judge Nicholls I can only conclude that this marriage was not a sham, that the appellant had properly been issued with a residence card and that there was evidence that his wife was working. The circumstances of the interview with the appellant were unfortunate: it was not a formal interview it appears, but really a subsidiary matter to a raid on what was thought might be a sham marriage. I therefore place less weight on what the appellant said then because in particular the evidence before me shows that the appellant's wife was working.

8. I consider that there are material errors of law in the determination of the judge in his conclusion that the Secretary of State had discharged the burden of proof and that there was sufficient evidence to show that the appellant's wife was not exercising Treaty rights. Clearly that evidence was available in the totality of the evidence and indeed, of course, the judge did accept that evidence of the appellant's wife working was available. I consider that the decision reached by the judge was not based on all the evidence before him. I have considered all the evidence and I conclude that this is an appeal which it is appropriate to allow. The evidence indicates that the appellant's wife is exercising Treaty rights here, that this is a genuine marriage and that the appellant has a residence card valid until 2018. So the appeal of the appellant is therefore allowed.

Signed Date

Upper Tribunal Judge McGeachy