IA/47733/2014

• Status of case: Unreported
• Hearing date: 22 Sep 2016
• Promulgation date: 4 Oct 2016
• Publication date: 25 Jul 2018
• Last updated on: 25 Jul 2018

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/47733/2014


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 22nd September 2016
On 4th October 2016



Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY


Between

THE SECRETARY OF STATE FOR the HOME DEPARTMENT
Appellant
and

SUSANA [L]
(ANONYMITY DIRECTION NOT MADE)
Respondent


Representation:
For the Appellant: Ms Z Ahmad, Home Office Presenting Officer
For the Respondent: Mr Claire, Counsel for Farani Javid Taylor, Solicitors, London


DECISION AND REASONS
1. The Appellant is a citizen of Portugal born on 28th December 1978. She appealed against the decision of the Respondent dated 11th November 2014 to remove her from the United Kingdom in accordance with Section 10 of the Immigration and Asylum Act 1999 (which applies by virtue of Regulations 19(3)(a)/19(3)(c) pursuant to Regulation 21B(2) and 24(2) of the EEA Regulations). Her appeal was heard by Judge of the First-tier Tribunal Cockrill on 7th March 2016 and allowed under the Immigration (European Economic Area) Regulations 2006 in a decision promulgated on 23rd March 2016.
2. An application for permission to appeal was lodged. Permission to appeal was granted by Judge of the First-tier Tribunal Holmes on 20th August 2016. This states that the judge accepted that this was a marriage of convenience entered into between the Appellant and Mr Singh but concluded that this was only the case from the point of view of Mr Singh. When he reached his decision he accepted that the Appellant's evidence about whether Mr Singh was left or right-handed and whether she, the appellant, had been using oral contraception was inconsistent with the evidence Mr Singh had given. The decision arguably offers no explanation as to how the appellant would not know these things if she genuinely believed she had ever been in a genuine and subsisting relationship with Mr Singh. The permission states that the evidence points squarely to the Appellant not having been a party to any relationship with Mr Singh. This was the fundamental issue of fact in the appeal. The permission states that it is arguable that the judge either misdirected himself as to the applicable burden and standard of proof or failed to give adequate reasons for his decision and failed to resolve that issue adequately.
3. There is no Rule 24 response.
The Hearing
4. The Appellant in these proceedings is the Secretary of State however for convenience I shall now refer to the parties as they were before the First-tier Tribunal.
5. The Presenting Officer submitted that she is relying on the grounds of application for permission and that there has been a lack of reasoning throughout the decision. I was asked to take into account the judgment in the case of Muse and others (by their litigation friend Fadumo Nur Ali) and Entry Clearance Officer C5/2011/0988. At paragraph 33 of that judgment reference is made to the decision having to be intelligible and adequate.
6. I was referred to paragraph 12 of Judge Cockrill's decision in which he states that he has concerns about the discrepancies in the Appellant's interview compared to Mr Singh's interview, in particular relating to core matters such as: "Was Mr Singh left or right-handed?" and "Did the Appellant use contraception?" The Presenting Officer submitted that the Appellant's evidence is that she was in a relationship with Mr Singh but had she been in a relationship with him she would have known these things.
7. I was referred to paragraph 14 of the decision in which the judge states that the Appellant has been working legitimately in the United Kingdom and there is no reference to money being offered to the Appellant to marry Mr Singh. The judge went on to allow the appeal. The Presenting Officer submitted that the judge states in paragraph 14 that the Appellant was not a party to some proposed marriage of convenience but this is contrary to the evidence before him and it is not clear how he came to this decision.
8. I was asked in particular to consider paragraphs 12, 13 and 14 and find that the Appellant was a party to a sham marriage although the marriage did not actually go ahead. The Presenting Officer submitted that the judge's reasoning has to show how he put matters together, in particular the inconsistencies in the interviews and how he concluded that the Appellant was not a party to the sham marriage.
9. The Presenting Officer submitted that this has not been done so the decision contains a material error of law due to lack of reasoning.
10. Counsel for the Appellant submitted that this is a rationality challenge. The Respondent would have to show that the judge could not have come to the conclusions he did based on what was before him. He submitted that she has not done so and this is purely a disagreement by the Respondent with the judge's decision.
11. Counsel submitted that the judge considered all the evidence before him and found that the Appellant was genuine and that her intentions were genuine. He submitted that he carried out a proper balancing exercise looking at the positive matters in this claim. It is clear that he knew that the Appellant was exercising treaty rights in the United Kingdom and he was satisfied with the explanation of how the relationship developed. He also considered the negatives, being that the appellant did not know if Mr Singh was left or right- handed and she gave a different answer about contraception at interview to the answer given by Mr Singh. He submitted that the judge states that there are difficulties with the negative issues but based on the evidence before him the judge has come to a properly reasoned decision.
12. He submitted that the judge found that the Appellant was living with Mr Singh and wanted to marry him and it was Mr Singh who was unreliable and dishonest and deserted the Appellant. He submitted that the judge found it was plausible that the Appellant thought the relationship might work and he found that the Appellant was not abusing her treaty rights.
13. Counsel submitted that the judge considered everything. There was no apparent financial motive. He submitted that there is no error of law in the judge's decision and the judge accepts that the Appellant's child is probably Mr Singh's.
14. I put to Counsel that this does not explain how, if the Appellant was in a relationship with Mr Singh, she did not know if he was left-handed or right-handed and gave different answers to many of the questions at interview from the answers given by Mr Singh.
15. The Presenting Officer submitted that the Respondent is not merely disagreeing with the judge's findings, the judge has given no explanation for these findings and for coming to the decision he did based on the inconsistencies in the interviews with the Appellant and Mr Singh. She submitted that the judge makes the finding that Mr Singh is dishonest but it is not merely Mr Singh's evidence which is being considered, the Appellant's evidence is also being considered and there is no way in the circumstances and based on the evidence provided, that the Appellant is an innocent party. He submitted that the judge does not state that Mr Singh misled the Appellant. He and the Appellant both gave evidence and the judge's decision is inconsistent with the evidence given.
Decision and Reasons
16. The Appellant did not actually enter into a marriage with Mr Singh but she was on the point of doing so. She is a Portuguese national exercising treaty rights in the United Kingdom. If she intended entering into a sham marriage this would be an abuse of her rights and if she was aware that it was a sham marriage it would be proportionate to remove her from the United Kingdom under the EEA Regulations.
17. The Appellant did not attend the First-tier hearing stating that she has a young child and could not come to hearing centre. The judge refers to this at paragraph 11. Her non-attendance could be found to be significant.
18. At paragraph 12 the judge states that the Appellant and Mr Singh gave different answers to a number of questions at interview. They had separate interviews and some of the answers which were inconsistent, were quite superficial but some went to the core of the case, eg: Was Mr Singh left or right-handed and did the Appellant use oral contraception? The Appellant's account was that she had been living with Mr Singh and had thought the relationship was stable and she wanted to marry but if that had been the case she would have been able to answer the questions at interview consistently with Mr Singh. At paragraph 13 the judge states that he is going to accept the account presented by the Appellant but he gives no reasons for this.
19. At paragraph 14 the judge states that the Appellant has been working legitimately in the United Kingdom and there has been no specific reference to money being offered to the Appellant. He states that he finds the Appellant was not aware that this was a marriage of convenience.
20. It is clear from the evidence before the judge that this was a sham marriage. The judge noted at paragraph 12, major discrepancies which go to the core of the Appellant's account. As stated by the Presenting Officer it was not only Mr Singh's evidence that was being considered, the Appellant's evidence was also being considered and if the Appellant had ever been in a relationship with Mr Singh their answers to the questions would mainly have been the same, particularly relating to matters that go to the core of the claim.
21. The judge states that he has looked at the matter on balance but he has not explained why he finds the Appellant to be an innocent party. This finding goes against all the evidence in this claim.
22. I find that the Home Office has successfully shown that the judge could not have come to the conclusions he did based on what was before him.
Notice of Decision
There are clear material errors of law in the judge's decision and it must be set aside.
Based on the evidence before the judge I find that the Appellant was well aware that she was entering into a sham marriage with Mr Singh and I am dismissing her appeal.
Anonymity has not been directed.


Signed Date 4th October 2016

Deputy Upper Tribunal Judge I A M Murray