Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA471182014

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Determination & Reasons Promulgated
On 12th February 2016
On 13th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

mr Basam Alhassan
(ANONYMITY order not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: No legal representation
For the Respondent: Mr D Mills (HOPO)

DETERMINATION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge James, promulgated on 16th March 2015, following a hearing at Birmingham on 17th February 2015. In the determination, the judge dismissed the appeal of Basam Alhassan, who subsequently applied for, and was granted, permission to the Upper Tribunal, and thus the matters comes before me.
The Grant of Permission
2. On 23rd July 2015, permission to appeal was granted by the Upper Tribunal on the basis that this concerned an Appellant who was not represented. There was an email on file dated 18th March 2015 in which the Appellant asked for documents to be returned to him, which she had forwarded to the Tribunal for his appeal, but which were not considered by the judge. On 23rd March 2015, the documents were returned to him by the Tribunal in a letter which states, "please find enclosed documents which were submitted for the above appeal". The appeal reference is IA/47118/2014. The documents are listed as "tax documents, Republic of Ghana documents, letters, photos, utility bills and wage slips". Nevertheless, in a decision dated 12th March 2015, and promulgated on 16th March 2015, these documents were not referred to by the Tribunal Judge. Yet, in a letter dated 23rd March 2015, it was apparent that the Tribunal was in possession of the Appellant's documents which were returned to him on 23rd March 2015, after the decision had been promulgated. The Upper Tribunal, in granting permission now held that it was arguable that there had been a procedural irregularity which has led these documents not being considered by the judge, which is capable of affecting the outcome.
3. On 7th August 2015, a Rule 24 response was entered by the Respondent Secretary of State to the effect that the Tribunal had directed itself appropriately. The Grounds of Appeal allege that the Appellant submitted documents which were not considered by the Tribunal. The Secretary of State, however, has no way of knowing what was, or was not before the judge on the day of the paper hearing. However, the burden of proof was upon the Appellant to show that documents were before the Tribunal. The burden was upon the Appellant to show that they would have made a material difference to the outcome of the appeal. That burden had not been discharged.
Submissions
4. At the hearing before me on 12th February 2016, Mr Alhassan, appeared in person and explained that he comprised a family of two brothers and a girl, all of whom were born as triplets. He had got married to a EEA national, by way of a proxy marriage which was conducted in accordance with the laws of Ghana, and this lady, a French national, had also become the wife of a Pakistani national, and this had upset him and his relationship was now in difficulty. Mr Alhassan stated before me that, "she was seeing other men and I said I am not that kind of a person where you are seeing other people".
5. For his part, Mr Mills submitted that the Appellant's application was rejected because there was a suggestion that deception had been involved. Initially it was suggested that the Appellant was from a family of twins but he was now suggesting that they were triplets. In any event, there had been an application from someone with the same date of birth and the same parents as the Appellant. The papers were not served on the Respondent Secretary of State. But even if they were, these papers which the Appellant claims to have been sent by post to the Tribunal and received by them were not considered, were not relevant to the essential issues that were before the Tribunal. There really was only one issue before the Tribunal, and that was whether the marriage that the Appellant alleged to have contracted with a French national, was in compliance with the law of an EEA country, namely, France in this case, and not in accordance with the laws of Ghana, as the Appellant claimed. This had been established in the leading case of Kareem (Proxy marriages - EU law) [2014] UKUT 00024. The documents that the Appellant had referred to, as having been sent to the Tribunal but not considered by the Tribunal were tax documents, Republic of Ghana documents, letters and photos and utility bills. None of these really dealt with the manner in which the marriage had been contracted, which was a proxy marriage, and not in compliance with the laws of France. Therefore, even if the documents had been considered by the Tribunal on that occasion, in what was a "paper hearing", the appeal would not have succeeded. It would have been lost on the Kareem point.
6. Second, the additional question was whether the Appellant could succeed on the basis that he had a "durable relationship" with the French national under Regulation 8. However, if the sponsoring French national was not going to come to court and give evidence it was difficult to see how the durable relationship could be proved by evidence before the Tribunal. In any event, the Appellant was now reluctantly conceding that the relationship had broken down because this French national had also married a Pakistani national (a matter expressly referred to by the judge at paragraph 8 of the determination), and that the marriage was now in difficulty. Therefore, there could have been no finding of there having been in existence a durable relationship.
7. In reply, the Appellant said that he now had a girlfriend. Her name was Umu. She was a Senegalese national. He did not know her status. He could not say whether she had leave to remain. However, he went on to confirm that his relationship with the French national whom he had allegedly married broke up one and a half years ago. He said that this was prior to the hearing of 17th February 2015 before Judge James in Birmingham.
No Error of Law
8. I am satisfied that that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007), such that I should set aside the decision. My reasons are as follows. First, the sole issue in this appeal was whether the Appellant's marriage was valid in accordance with the law. The relevant law was the law of the EEA national whom the Appellant purported to marry. Under French law, it is relevant that proxy marriages are not allowed. The Appellant furnished evidence in relation to proxy marriages in Ghana and that was entirely relevant as explained in the case of Karim [2015] UKUT 00024.
9. Second, and in any event, it is the Appellant's evidence today that his relationship with the French national broke down before the hearing before Judge James on 17th February 2015. This was because she had married other people as well. As such, that the relationship could not succeed under Regulation 8 as a durable relationship either.
10. Third, in cases of this kind, it is invariably going to be the case that where the nature of the marriage is put in issue by the Secretary of State, the failure of one or both Appellants (as is the case here) to attend court and give evidence, and explain to the Tribunal the nature of their marriage, will inevitably lead to them being unable to show that the marriage was a genuine and subsisting one. This was what the Tribunal found in this case.
11. The Tribunal was entitled to do and it gave compelling reasons for reaching these conclusions at paragraphs 9 and 10 of the determination. The fact that documents were sent, which were essentially in relation to the situation in Ghana, and were not considered, was entirely irrelevant to the issue before the Tribunal.
Notice of Decision

There is no material error of law in the original judge's decision. The determination shall stand.

No anonymity order is made.

Signed Date

Deputy Upper Tribunal Judge Juss 11th June 2016