Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/48840/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5th October 2016
On 19th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

miss salimatou jallow
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr E Eluwa, Solicitor
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Gambia who applied for a residence card as confirmation of a right to reside here as an unmarried partner of a Netherlands national. The application was rejected and her subsequent appeal to First-tier Tribunal Judge Bart-Stewart dismissed in a decision promulgated on 11th April 2016. The judge found that the issue focused on whether the marriage was one of convenience as the Respondent had asserted. Having considered the evidence presented to her the judge found that the Appellant had failed to show that her marriage to the EEA national was not one of convenience before going on to dismiss the appeal.
2. Grounds of application were lodged indicating that the judge erred in relation to the burden of proof per Papajorgji (EEA spouse - marriage of convenience) Greece [2012] UKUT 00038. The judge had also erred in finding that the marriage was one of convenience and there was a mistaken basis for an adverse credibility finding against the Appellant. Permission to appeal was granted.
3. A Rule 24 Notice was lodged by the Secretary of State submitting that the Tribunal had directed itself appropriately and had properly applied the correct burden of proof and found that the marriage was one of convenience for reasons given at paragraphs 26 to 28 of the decision.
4. Thus the matter came before me on the above date.
5. For the Appellant Mr Eluwa appeared and said it was important to note that the Home Office bundle had not been made available to the judge. Had it been so then much of the Appellant's and Sponsor's case would have been confirmed. The Respondent had been relying on suspicion about the marriage and there was no other evidence to support the conclusion that the marriage was a sham one. As such the appeal should be allowed and then sent back to the First-tier Tribunal for a fresh hearing. In response to submissions by Mr Jarvis, Mr Eluwa told me that both the Sponsor and Appellant were in court today.
6. For the Home Office it was said the application was misconceived. There had been an extensive refusal letter challenging the failure of the Appellant to attend an interview but that issue was not in dispute. Having raised the issue of a sham marriage it was to be expected that the Appellant and Sponsor would attempt to rebut that by giving oral evidence but what had happened in this case was that the Sponsor had not appeared at the hearing. As such the judge had been entitled to regard this as a negative credibility factor to weigh in the balance. The judge had properly reasoned the decision and there was no error in law.
7. I reserved my decision.
Conclusions
8. Before me the parties agreed that Papajorgji was good law. The European Commission has produced a handbook with the expressed aim of helping national authorities tackle the abuse which marriages of convenience represent without compromising the free movement of EU citizens and the family members who are acting bona fide. The latest edition of that handbook (26th September 2014) defines a marriage of convenience as a marriage contracted for the predominant purpose of conferring a right of free movement and residence under EU law to a person who would otherwise not have such a right. The key is whether there is abuse; the abuse of conduct is linked to the absence of intention of the married couple to create a family as a married couple and to lead a "genuine marital life". The abuse of conduct is represented by bad faith of the spouses or one of them.
9. In this case the issue was clearly raised by the Secretary of State in the refusal letter. The question for the judge was, in the light of the totality of information before her to state whether she was satisfied that it was more probable than not that this was a marriage of convenience. The judge had to consider all the factors and make clear findings before coming to a decision.
10. The curious element in this case is that the Sponsor elected not to attend the hearing to give evidence. We know this because having refused an adjournment request the judge was told by Mr Karim acting for the Appellant that, having taken instructions "the Sponsor had failed to attend the hearing". It has to be noted that this was in the context that the Secretary of State did not accept that the Appellant and Sponsor were in a durable relationship for the purpose of the EEA Regulations.
11. Whatever the merits of the explanation for the Appellant's non-attendance at interview the burden of proof was on the Appellant to show, as at the date of the hearing, that she was entitled to a residence card. In that connection the judge made clear factual findings at paragraph 26 to 28 inclusive. In particular she noted the Appellant's claim that her husband had encouraged her to get pregnant and then changed his mind was not credible. On the face it and in the absence of the Sponsor this was a conclusion which the judge was entitled to make. Indeed it can be said that absent the evidence of the Sponsor it is very difficult indeed to see how the judge could have decided otherwise than to go on, as she did, and dismiss the appeal.
12. As such there is no error of law in the judge's decision which must stand.
Notice of Decision

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

I do not set aside the decision.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge J G Macdonald 19th October 2016