IA/47227/2014

• Status of case: Unreported
• Hearing date: 4 Aug 2016
• Promulgation date: 2 Sep 2016
• Publication date: 17 Apr 2020
• Last updated on: 17 Apr 2020

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/47227/2014


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 4 August 2016
On 2 September 2016



Before

Mr H J E LATTER
DEPUTY UPPER TRIBUNAL JUDGE


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

BROWN OKPEGWA
(ANONYMITY DIRECTION not made)
Respondent


Representation:
For the Appellant: Mr E Tufan, Home Office Presenting Officer
For the Respondent: Mr N Aghayere of Melrose, Solicitors


DECISION AND REASONS

1. This an appeal by the Secretary of State against a decision of the First-tier Tribunal (Judge Majid) allowing an appeal by the applicant against the decision made on 10 November 2014 refusing him a residence card as the spouse of an EEA national exercising treaty rights. In this decision I will refer to the parties as they were before the First-tier Tribunal, the applicant as the appellant and the Secretary of State as the respondent.

Background

2. The appellant is a citizen of Nigeria born on 13 February 1992. On 19 December 2013 he applied for a residence card as confirmation of a right to reside in the UK on the basis that he was in a genuine relationship with his partner, a Portuguese national exercising treaty rights. However, the application was refused for the reasons set out in the Reasons for Refusal Letter dated 10 November 2014. The respondent noted that the appellant had previously applied for a residence card on 8 February 2011 on the basis of his claimed marriage to a French national and that this application had been refused on 10 May 2011. As far as the present application was concerned, the respondent was not satisfied that the appellant had shown that any previous marriage had been dissolved prior to the present marriage and he was free to marry his current partner.

3. Further, in the light of the responses given at interview by both the appellant and his partner, it was the respondent's view that the discrepancies were such that his claim that he was in a genuine relationship with his partner had been irreparably undermined. The respondent found that the marriage was one of convenience for the sole purpose of remaining in the UK and the application was accordingly refused.

4. The appellant appealed against this decision and his appeal was heard at Taylor House on 6 January 2016. The appellant adopted his statement of 3 July 2015 and said that he had entered into a genuine marriage covered by the relevant regulations [7]. The judge heard submissions from the appellant's representative, which he summarised at [12] of the decision. It was submitted the allegation that the marriage was one of convenience had been amply proved to be groundless by the oral evidence of the appellant and his wife who had said that they had been living together since October 2013. It was argued that this was a genuine marriage and there had been evidence that there had been no exchange of money to render the marriage fraudulent. The appellant's wife had no link with Nigeria and it was argued that the marriage was patently genuine and that his wife was exercising treaty rights.

5. When allowing the appeal, the judge set out his conclusions in [23] as follows:

"Faithful to the dictum in the preceding paragraph, I am fully conscious of the 'legal requirements' stipulated by immigration law. It is incumbent upon me to advert to the new rules giving respect to the democratic intention expressed by the legislature dictated by the supremacy of Parliament. The rule of law demands that this appellant should be allowed to benefit from the regulations. I am aware that I am dealing with an appeal. Therefore, the facts that have led the JR judge in the High Court to shut the door on this appellant cannot be regarded as final. The new legal documents available to me will indubitably persuade any judge that this is a genuine marriage and should be supported. I am absolutely clear that the regulations of the EEA should benefit this appellant who has told me in his oral evidence that he has no reason for assuming that the respondent could assert that his relationship is a marriage of convenience; the Portuguese wife corroborated her husband's evidence and said 'I am in love with this appellant. We are living as husband and wife at the Lewes House address for more than three years. Today we have travelled to the Tribunal by using buses. We were dropped in front of the Tribunal by bus 53.'"

The Grounds and Submissions

6. In the grounds it is argued that the judge erred in law by failing to set out the respondent's reasons for refusing the application simply referring at [2] and [11] to the fact that that the reasons were a negative decision. Accordingly, so it is argued, it is not clear that the judge properly engaged with those reasons. Secondly, it is argued that the judge's treatment of the evidence was inadequate. At [4] the judge referred to the appellant's statement of 4 July 2015 with no further details and at [6] to the fact that he had read those statements and other documents in the bundles but no further indication was given as to their contents. Thirdly, it is argued that the judge gave inadequate reasons for his findings. In [23] there was no indication whether and in what circumstances the matter had been considered by a judge in the High Court. No explanation was given of what new legal documents were referred to which would "indubitably persuade any judge that this is a genuine marriage". In summary, the judge had failed adequately to address the matters raised by the respondent including whether the appellant was in fact free to marry his current partner.

7. Mr Tufan adopted his grounds submitting that the judge had not engaged with the relevant issues. He had made a number of comments which appeared to be irrelevant such as his reference to Sir Frederick Lawton in [15] and to the judgment in Forrester v Secretary of State [2008] EWHC 2307 where Sullivan J had expressed concerns about the way the respondent had dealt with the decision under challenge in that judgment. He referred to the judgment of the Court of Appeal in Malaba v Secretary of State for the Home Department [2006] EWCA Civ 820 and in particular to para 20 where the court underlined that it was imperative for an adjudicator to explain how the main conclusions had been reached. He submitted that the judge had failed to make it clear that he had considered all relevant issues to explain how he had reached his findings and conclusions.

8. Mr Aghayere submitted that the judge could not reasonably be expected to set out the entire contents of the decision letter or of the evidence produced at the appeal. He accepted that whilst some criticisms might be made of the judge's reasoning that should not undermine the fact that it was clear from the decision that the judge had accepted the appellant's evidence. He argued that any error of law so far as adequacy of reasons was concerned was not material to the outcome of the appeal.

Consideration of whether the judge erred in law.

9. I must consider whether the judge erred in law such that the decision should be set aside. In Malaba at [29], Pill LJ said that:

"In assessing the adequacy of a fact-finding exercise, an Appellate Tribunal expects findings to be adequately reasoned. By its reasoning, the fact-finding Tribunal not only tells the losing party why he has lost but may also be able to demonstrate that it has adequately and conscientiously addressed the issue of fact which has arisen...".

In the present case the reasons given by the judge do not tell the respondent why he lost this appeal. Serious issues were raised in the Reasons for Refusal Letter and in particular the validity of the appellant's marriage to his current partner and the discrepancies arising at interview which were fully identified and commented on in that letter but there is no reference to these in the judge's decision and nothing to indicate that they were considered by him.

10. In Atputarajah [2001] Imm AR 566 Elias J said that reasons would be inadequate if they gave rise to a real cause for concern that a relevant matter had not been properly taken into account and that if it had, there was a real prospect of a different decision being reached. I am satisfied that this is the situation in the present case. There is nothing to indicate that the judge gave any adequate consideration either to the validity of the marriage or to the discrepancies in the accounts given by the appellant and his wife at interview. This gives rise to a real concern that matters clearly relevant to the outcome of the appeal were not properly taken into account.

11. I am satisfied that the judge erred in law by failing to give adequate reasons for his decision. The error is such that the decision should be set aside. Both representatives accepted that in these circumstances the appeal should be remitted to the First-tier Tribunal for a full rehearing before a different judge.

Decision

12. The First-tier Tribunal erred in law and the decision is set aside. The appeal is remitted to the First-tier Tribunal for reconsideration by way of a full rehearing before a different judge.


Signed H J E Latter Dated: 30 August 2016

Judge of the Upper Tribunal