IA/45781/2013

• Status of case: Unreported
• Hearing date: 17 Apr 2014
• Promulgation date: 22 Apr 2014
• Publication date: 9 May 2014
• Last updated on: 9 May 2014

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/45781/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 17th April 2014
On 22nd April 2014


Before

UPPER TRIBUNAL JUDGE COKER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

MUHAMMAD SHAKRUKH
Respondent
Representation:

For the Appellant: Mr G Saunders, senior home office presenting officer
For the Respondent: no legal representation and no appearance by the respondent or anyone on his behalf.
DETERMINATION AND REASONS

1. Permission to appeal a decision of the First-tier Tribunal allowing an appeal against a decision to refuse a residence card was granted on the grounds that the First-tier Tribunal had made a material misdirection of law by failing to consider the case of Kareem (Proxy marriages - EU law) [2014] UKUT 00024 (IAC) which was promulgated on 16th January 2014. The First-tier Tribunal had heard the appeal on 30th January 2014 and promulgated the decision on 26th February 2014.

2. The respondent had not filed a Rule 24 response to the grant of permission and nor had he given any reason or explanation for either his or his claimed wife's absence from the hearing before me today. It appears from the file that the appellant was served with notice of the grant of permission and the date time and place of the hearing at his last notified address.

3. The First-tier Tribunal judge held that the proxy marriage between the respondent and his EEA National wife was valid. He did not go on to make any findings as to the durability of the relationship on the basis that such issues did not arise because of his decision as to validity. In reaching his decision the judge relied upon the extracts of Ghanaian law produced to him and to a Statutory Declaration that the proper customs had been complied with. He appears to have missed consideration of some of the documents in the file of papers before him; in particular that there are two statutory declarations: one dated 31st October 2013 (which post dates the decision the subject of the appeal) which gives the residential addresses of the couple at the time of the marriage and one dated 15th November 2012, which was the one submitted with the application for a residence card, which does not. Although I am obviously not a handwriting expert it is obvious that the signatures of both purported fathers on the two declarations are markedly different. The earlier declaration does not state that the marriage has been registered although the latter one does.

4. Had the judge seen both declarations it is undoubtedly the case that he would not have been satisfied that the marriage had been registered according to proper procedures; the declarations on their face are not reliable. It is inconceivable that he would have reached the conclusion that the Ghanaian 'marriage' was valid and thus allowed the appeal.

5. I am accordingly satisfied that there was an error of law and I set aside the decision to be remade.

Remaking the decision

6. The documentation produced raise, on their face, serious and significant doubts as to the validity of the Ghanaian customary marriage. I am not satisfied to the requisite standard that the marriage is valid. There is no evidence before me that the marriage would be recognised in the country of nationality of the respondent's purported wife, as required by Kareem. I find that the couple are not married as claimed.

7. I note that the couple also asserted that they were in a durable relationship and had submitted a few limited documents purporting to support that contention. I also note that despite the reasons for refusal of the residence card challenging the durability of the relationship, the respondent chose to have his appeal before the First-tier Tribunal determined on the papers and has not appeared before me. I am satisfied that this casts doubt upon the nature, genuineness and viability of the relationship which, combined with the paucity of the documentation, leads inevitably to the conclusion that the couple are not in a durable relationship.

8. I am not satisfied that the respondent is entitled to the issue of a residence card.

Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision
I re-make the decision in the appeal by dismissing it
Date 17th April 2014
Judge of the Upper Tribunal Coker