Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/49485/2014

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 24 February 2017
on 03 March 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

ARSAL MEHMOOD
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Appellant present, no legal representative

For the Respondent, Mrs M O’Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a determination by First-tier Tribunal Judge D H Clapham, promulgated on 27 November 2015, dismissing his appeal against refusal of a residence card under the Immigration (EEA) Regulations 2006.
2. The grant of permission adequately summarises the grounds:
The grounds complain that the judge failed to give adequate reasons for findings, failed to consider evidence and made no assessment under article 8.
The format of the decision renders it difficult to identify which discrepancies the judge found led to a conclusion that the marriage was one of convenience. It is arguable that this amounts to an error of law.

3. The grounds were prepared by the solicitors who represented the appellant at the first-tier tribunal hearing, but he had no representation at the hearing in the upper tribunal. He submitted as follows. The communication tests which he and his wife undertook were not explained properly to either of them. A suitable interpreter for his wife was not provided. It is not correct that he and his wife cannot communicate in any language. The Home Office became confused between the Romanian and Roma languages. A Romanian rather than Roma interpreter was provided. He and his wife live together. Contrary to what the judge thought, his wife has always worked. They do receive benefits, but that is related to her work. The documents were all provided. He does not understand why the judge thought his wife had not been exercising treaty rights. He does not understand why the judge concluded that theirs is a marriage of convenience. They lived together for some years and he regards her two children as part of his family. They are able to communicate because he speaks Punjabi and she speaks Roma, and there are many similarities between those languages.
4. A rule 24 response from the SSHD says that the judge did refer to the evidence, and is not required to make reference to every particular item; that the record of evidence from the appellant, sponsor and witnesses, read in the round and in its entirety, made it abundantly clear that there are significant inconsistencies and disagreements in the accounts of all parties on material matters; and it was open to the judge to conclude that the marriage is one of convenience, and the sponsor was not exercising treaty rights.
5. Mrs O’Brien submitted that although the judge might have referred back in greater detail to the evidence, once the record of it in the decision was read along with the conclusions, it was clear that the judge’s view was justified and adequately explained. For example, the appellant and his wife were virtually unable to communicate and knew very little about each other, and there was no evidence that they shared accommodation.
6. I reserved my decision.
7. The appellant’s submissions did not amount to more than repetition of the case on the facts which he did not establish in the FtT. I make allowance for the absence of legal representation, but I am able to set aside the decision of the FtT only if it involved the making of any error on a point of law.
8. I find no such error.
9. The judge’s findings and reasons are briefly expressed at paragraphs 77 - 82 in less than a page, but these findings have to be read as part of the decision, and in context.
10. The respondent provided the first-tier tribunal with the materials from which the reasons for refusal letter dated 20 November 2014 was built. Together, these make a strong case that the marriage was one of convenience and of no real substance.
11. The appellant’s grounds of appeal to the first-tier tribunal were formal and generic, raising no specific point for decision.
12. The evidence in the first-tier tribunal is clearly set out from paragraph 13 - 68 of the decision. Paragraphs 69 to 75 set out the submissions, identifying the issues as put to the judge. Reading fairly and as a whole, it is abundantly clear why the judge held at paragraph 77 that it was “transparent … that there were gross discrepancies between not only the evidence of the appellant and his wife but also between the appellant and 2 witnesses". The appellant’s case, starting from a poor base, had become worse rather than better as it was developed in evidence. The judge goes on to give only a few examples, but the decision as a whole shows clearly why she arrives at the outcome she does. It can come as no surprise to a sensible reader.
13. The foregoing is sufficient to dispose of the issues of inadequacy of reasoning or failure to address evidence, but it is difficult to see that any judge might sensibly have come to any other view, given the hopeless state of the evidence on the appellant’s side.
14. Contrary to the grounds, article 8 issues do not arise for decision in cases of this nature: see Amirteymour and Others (EEA appeals; human rights) [2015] UKUT 00466 (IAC) and TY (Sri Lanka) [2015] EWCA Civ 1233. In any event, on the facts found no article 8 case could have got off the ground.
15. The determination of the First-tier Tribunal shall stand.
16. No anonymity direction has been requested or made.

2 March 2017
Upper Tribunal Judge Macleman