Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/47805/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 13 September 2016
On 15 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE FROOM

Between

FELICIA NYAMEKYE
(NO ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Ikoku, Solicitor
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Ghana born on 19 April 1989. Her application for a residence card as a family member of an EEA national exercising Treaty rights was refused and she appealed to the First-tier Tribunal. In a decision promulgated on 20 January 2016 the Tribunal dismissed her appeal. The Tribunal found that the appellant's proxy marriage to Mr Yeboah Nyamekye, a Spanish national, was valid under Ghanaian law but the appellant had not established it was valid under Spanish law. She was not therefore a family member of an EEA national. After considering the evidence that the couple were in a durable relationship, the Tribunal found it had not been established they had resided together in a relationship akin to marriage for two years or at all. The appellant was not therefore the extended family member of an EEA national.
2. Permission to appeal was refused by the First-tier Tribunal but granted by the Upper Tribunal on renewal. Permission to argue all grounds was granted but the principal concern appears to have been the delay of three months between the hearing and the promulgation of the decision.
3. The respondent filed a rule 24 response opposing the appeal and arguing there is no error of law in the decision.
4. The representatives made submissions on the issue of whether the First-tier Tribunal decision contained a material error of law. I have recorded these in full in the record of proceedings and taken them into account.
Error of law
5. I find the decision does not contain a material error of law. My reasons are as follows.
6. Mr Ikoku's first point was essentially that, having found the Ghanaian marriage was valid, the First-tier Tribunal should have allowed the appeal or, alternatively, the provision of the Spanish Code was sufficient evidence to show that the marriage would be valid under Spanish law.
7. To the extent Mr Ikoku argued that the Judge erred by following and applying the decision in Kareem (Proxy marriages - EU law) Nigeria [2014] UKUT 00024 (IAC), I reject his argument. The decision was confirmed and explained in in TA (Kareem explained) Ghana [2014] UKUT 00316 (IAC) and neither case has been overturned on appeal. The principles established in those cases are to be regarded as settled law. The question whether a marital relationship has been entered into must always be examined in accordance with the laws of the Member State of the sponsor, in this case Spain. Evidence proving the private international law of another country must identify, not only the relevant legal provisions, but also how these are applied in practice (see Kareem, paragraph 14). Absent such evidence a Judge cannot be satisfied that the appellant's marriage would be recognised in the Member State.
8. That is precisely the approach taken by the Judge in this case. She noted the text of the Spanish Civil Code but also noted the absence of any other evidence showing how this provision is applied in practice. This was a question to be established by the appellant with evidence and the Judge was entitled to find that burden had not been discharged. It is true the Code refers back to the position under the law in the place in which the marriage was celebrated. However, that was also the position with the Dutch Civil code examined in Kareem.
9. Mr Ikoku's next point focused on the delay between the Judge hearing the appeal on 27 October 2015 and promulgating her decision on 20 January 2016. I pointed out the Judge had signed her decision on 18 January 2016 and the delay between the hearing and the decision being signed off amounted to less than three months. Mr Ikoko argued the Judge had "lost her impression of the case" in the intervening weeks. However, when asked for examples of any errors of recollection appearing in the decision, he could only refer me to paragraph 50 in which the Judge recorded that the appellant, in answer to a particular question, had stated "she could not remember/did not know". Mr Ikoku suggested this was an inconsistent finding but I do not agree. Something has to be known to be forgotten but it can also be said that something forgotten is no longer known. In any event, overall the decision is replete with detail and careful analysis of the evidence and I see no signs of the Judge struggling to recollect the case when she came to write her decision.
10. In SSHD v RK (Algeria) [2007] EWCA Civ 868, Wilson LJ dismissed an appeal in which there had been a "lamentable" delay of 29 months between a hearing and a decision, although the decision appeared to have been written six months after the hearing. Wilson LJ emphasized that, in order to succeed in an argument alleging that the delay had infected a decision with legal error, it was necessary to present reasoned arguments as to why the decision was unsafe. In Arusha and Demushi (deprivation of citizenship - delay) Albania [2012] UKUT 80 (IAC), the UT gave similar guidance and explained there must be shown to be a nexus between the delay and the safety of the decision. The UT looked at earlier authorities which had held that, in an asylum appeal where credibility was in issue, there was a duty on adjudicators to decide appeals within a reasonable time, which would be no more than three months but this was only a rule of thumb.
11. For the reasons already stated above, I do not find any error consequent to the delay, which was in any event only in the region of 82 days. I find nothing in the decision to suggest the Judge's recollection of the case was in any way impaired.
12. Mr Ikoku's final point was simply to challenge the Judge's finding that there was no durable relationship. He pointed to the bundle of evidence which had been submitted to show there was a durable relationship. However, as Mr Tufan pointed out, the Judge committed no less than four and a half pages to assessing the evidence and it cannot be said she was not entitled to come to an adverse conclusion. Her decision was not irrational and she based her decision on the evidence. As said, her decision is thorough and she gave cogent reasons for her conclusions.
NOTICE OF DECISION
The First-tier Tribunal did not make a material error of law and its decision dismissing the appeal shall stand. No anonymity direction has been made.

Signed Date 14 September 2016

Judge Froom,
sitting as a Deputy Judge of the Upper Tribunal