Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/44412/2014

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
On 11 December 2015
On 28 January 2016

Before

Mr C M G OCKELTON, VICE PRESIDENT
& UPPER TRIBUNAL JUDGE MACLEMAN

Between

MAHDI TOUATI
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Brown, of Drummond Miller, Solicitors
For the Respondent: Mr M Diwnycz, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant, a citizen of Algeria, appeals against a determination by First-tier Tribunal Judge Mozolowski, dismissing his appeal against refusal of a residence card following his marriage in Edinburgh on 10 March 2014 to a citizen of Poland.
2. Permission to appeal was granted on the grounds that the judge might have erred by basing her conclusion on the appellant having failed to discharge the burden of proof upon him, in light of Papajorgi [2012] UKUT 00038.
3. In Agho [2015] EWCA Civ 1198, published on 26 November 2015, Underhill LJ, with whom the two other members of the Court agreed, explained as follows:
"PRELIMINARY: THE BURDEN AND STANDARD OF PROOF
11. I should start by stating what the position is about the burden and standard of proof in a case where the Secretary of State or an Entry Clearance Officer ("ECO") alleges that a marriage is a marriage of convenience. That question is carefully reviewed by the UT in the Papajorgji case to which I have already referred. In that case the ECO had refused an application for entry clearance on the basis of marriage to an EEA national on the ground that all that she had produced in support of the application was her marriage certificate and a copy of her husband's Greek passport and that she had failed to produce "any documentary evidence of your marriage, such as photographs of your wedding or your life together or agreements in joint names such as a bank account or a tenancy agreement". The UT's determination falls into two parts.
12. At paras. 24-32 the UT holds that the ECO's approach was wrong. As it put it at para. 27 of its determination
"? [T]here is no burden on the claimant in an application for a family permit to establish that she was not a party to a marriage of convenience unless the circumstances known to the decision-maker give reasonable ground for suspecting that this was the case. Absent such a basis for suspicion the application should be granted without more on production of the documents set out in article 10 of the Directive. Where there is such suspicion the matter requires further investigation and the claimant should be invited to respond to the basis of suspicion by producing evidential material to dispel it."
It goes on to say that a failure to provide evidence in support of the genuineness of the marriage will only justify an adverse inference if such documents have been asked for. At para. 32 it emphasises that the evidential burden of showing that there are reasonable grounds for suspecting a marriage of convenience lies on the decision-maker.
13. Thus far, the UT was concerned with the approach to be followed by the ECO. At paras. 33-38 it goes on to discuss the burden of proof in proceedings in the Tribunals. It was concerned about a possible reading of an earlier decision - IS (Marriages of Convenience) Serbia [2008] UKAIT 31 - to the effect that "once evidence of reasonable suspicion has been raised, there is a legal burden on the applicant to demonstrate that it is more probable than not the marriage is not one of convenience" (see para. 33). It expressed considerable reservations about such an approach, and although it said that the issue did not fall for decision it went on at paras. 34-37 to explain why it was strongly inclined to believe that it was wrong in principle. Mr Gullick took no issue with the reasoning in those paragraphs, but it is fair to say that the grounds of appeal did not turn on the issue of the burden of proof and it does not fall for decision before us any more than it did before the UT in Papajorgji. In those circumstances I will not attempt to summarise the passage in detail. What it comes down to is that as a matter of principle a spouse establishes a prima facie case that he or she is a family member of an EEA national by providing the marriage certificate and the spouse's passport; that the legal burden is on the Secretary of State to show that any marriage thus proved is a marriage of convenience; and that that burden is not discharged merely by showing "reasonable suspicion". Of course in the usual way the evidential burden may shift to the applicant by proof of facts which justify the inference that the marriage is not genuine, and the facts giving rise to the inference may include a failure to answer a request for documentary proof of the genuineness of the marriage where grounds for suspicion have been raised. Although, as I say, the point was not argued before us, that approach seems to me to be correct - as does the UT's statement that the standard of proof must be the civil standard, as explained by the House of Lords in Re B (Children) [2008] UKHL 35, [2009] 1 AC 11.
14. The UT in Papajorgji concluded, at para. 39:
"In summary, our understanding is that, where the issue is raised in an appeal, the question for the judge will therefore be 'in the light of the totality of the information before me, including the assessment of the claimant's answers and any information provided, am I satisfied that it is more probable than not this is a marriage of convenience ?'
Consistently with the prior discussion, that formulation clearly places the burden of proof on the Secretary of State (or ECO)."
4. Mr Brown's submissions concentrated on persuading us that the judge went wrong in examining the evidence about the relationship since the date of the marriage, because it had to be shown that it was not one of convenience only at the date it was contracted. We do not agree. Where an appellant says that the relationship has remained the same throughout, it would be wholly artificial to examine the position only at the date of the ceremony and treat as irrelevant any deficiencies in the evidence after that date. If an appellant's evidence about the relationship since the ceremony is found unreliable, that may bear on the relationship at that date. That is quite different from an appellant who says that the marriage was not one of convenience, but has since broken down.
5. We also observe that if an appellant were to produce a certificate of marriage and nothing further, then although the burden does not shift, the SSHD might not have to do very much to discharge it.
6. Where, as in this case, there has been substantive evidence from both sides a decision which misstates the burden cannot stand. The judge erred at paragraph 53 where she found that "on balance the appellant has not demonstrated that he is in a genuine relationship with the sponsor" and again at paragraph 56 where she was not satisfied that he had shown that his marriage was "not one of convenience".
7. We note that the grounds of appeal to the Upper Tribunal aimed to show that the judge went wrong not only about the burden of proof but because a high standard, above the balance of probabilities, applies. That point was not mentioned before us but we record for avoidance of future doubt that it is not a good one, in light of the citation above and of Scottish Ministers v Stirton and Anderson 2014 SC 218 at pages 251-252.
8. We express no view on the eventual outcome on any particular point, or in general, but we record some matters which arose in course of submission and will be apt for attention at the rehearing in the First-tier Tribunal. The appellant should produce evidence of payment of the rent on the flat said to have been occupied by the parties, and by whom; explain why although originally council tax demands appear to have been in two names, a demand for an unpaid balance is addressed to the appellant only (page 105 of his inventory of productions in the First-tier Tribunal); and explain the history of his employment and pay for the month of October 2014, when he appears to have been paid the same as in subsequent months, although his employment is said to begin only with the trial shift early on 15 October, leading to his absence from the flat at the time of the immigration visit (pages 108 and 161 - 163). It was agreed that he was to be directed to produce his bank statements from the date of the marriage, showing the history of transactions and the address to which those statements were sent. Those statements are to be sent to the First-tier Tribunal and copied to the respondent within one month from the date this determination is issued.
9. The determination of the First-tier Tribunal is set aside. No findings are to stand. Under section 12(2)(b)(i) of the 2007 Act and Practice Statement 7.2 the nature and extent of judicial fact finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal. The member(s) of the First-tier Tribunal chosen to reconsider the case are not to include Judge Mozolowski.
10. No anonymity direction has been requested or made.

Upper Tribunal Judge Macleman

18 December 2015