IA/50019/2013

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The decision


Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/50019/2013


THE IMMIGRATION ACTS


Heard at: Field House
Determination Promulgated
On: 25th July 2014
On: 1st August 2014



Before

DEPUTY UPPER TRIBUNAL JUDGE BRUCE

Between

Secretary of State for the Home Department
Appellant
and

Linda Boateng
(no anonymity order made)
Respondent

For the Appellant: Mr Duffy, Senior Home Office Presenting Officer
For the Respondent:

DETERMINATION AND REASONS

1. The Respondent is a national of Ghana born on the 28th December 1990. On the 8th May 2014 the First-tier Tribunal (Judge Howard) allowed her appeal against a decision to refuse to issue her with a residence card confirming her right of residence as the spouse of an EEA national. The Secretary of State now has permission to appeal against that decision.

2. The matter in issue at the date of refusal was simply whether the Appellant's marriage to her husband, conducted by proxy in Ghana, was considered valid by the Ghanaian authorities.

3. The First-tier Tribunal resolved that issue in the Appellant's favour and allowed the appeal.

4. Although the Secretary of State takes no issue with the findings of fact in respect of the Ghanaian marriage it is now submitted that the First-tier Tribunal erred in allowing the appeal. The decision was well after the Upper Tribunal promulgated the decision in Kareem (proxy marriage - EU law) Nigeria [2014] UKUT 24 (IAC) and there was a failure to take that decision into account. The burden of proof lies on the Appellant to establish that her marriage would also be considered valid in France, the country of nationality of her EEA spouse. For that reason the appeal cannot succeed because the Appellant has produced no evidence to that effect.

5. I find that the First-tier Tribunal erred in law in failing to have regard to the decision in Kareem. The decision is set aside.

6. I re-make the decision in the appeal by dismissing the appeal. The Appellant has not discharged the burden of proof in showing her marriage is considered valid by French law.


Decisions

7. The decision of the First-tier Tribunal contains an error of law and it is set aside.

8. I re-make the decision in the appeal by dismissing it.

9. I make no direction as to anonymity.



Deputy Upper Tribunal Judge Bruce
25th July 2014