Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/50715/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 January 2016
On 24 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE O'RYAN

Between

BISMARK [B]
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr L J Doyle, M&K Solicitors
For the Respondent: Miss A Everett, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal brought by the Appellant against the Respondent's decision of 8 December 2014 refusing to issue the Appellant a residence card which he had applied for on the basis that he was a family member of a qualified person under the Immigration (European Economic Area) Regulations 2006 ('the 2006 Regulations').
2. The Appellant is married to Mrs [A] and applied for a residence card on the basis that Mrs [A] is a dual Ghanaian and Dutch national who was a qualified person under the 2006 Regulations, on the grounds that she was present in the United Kingdom and was economically active.
3. The Respondent interviewed both parties to the marriage on a date in or around December 2014. In the decision letter the Respondent found that their marriage was one of convenience, specifying six discrete reasons for that finding, as follows (un-numbered in the original, but which I number here for convenience):
"1 You stated that your sponsor recently went to Ghana for two weeks to visit family, your sponsor stated that she went for 10 days to go to a funeral.
2 Your sponsor stated that you originally came to the UK to study English and work, you stated that you just came for a visit.
3 You stated that you don't like football, your sponsor stated that you follow a team and you have watched football.
4 Regarding the proposal, your sponsor stated that you decided to get married in February 2012, you stated that it was on December 22nd on her birthday. You stated that her children were not there and it was in the morning, she stated that her children were there and it was in the evening. You stated that you did not stay over that night, your sponsor stated that you did.
5 You stated that you did not celebrate the wedding in the UK, your sponsor stated that you prayed at church.
6 You stated that your bins are green and that they are collected on Thursday or Wednesday, your sponsor stated that they are black and that they are collected on Friday."
4. Both the Appellant and his wife provided witness statements in support of the Appellant's consequent appeal, providing explanations for those alleged discrepancies.
5. The appeal came before Judge Grant at Hatton Cross on 14 July 2015. She heard evidence from the Appellant and his wife and also from a Mr [P] and Miss [A-A], Mrs [A]'s adult daughter. The judge held in paragraphs 8 to 12 that she agreed with the reasons relied upon by the Respondent that the marriage was one of convenience.
6. The Appellant applied for permission to appeal on 4 August 2015 and was granted permission to appeal by Judge Andrew on 9 November 2015. One of the grounds of appeal which is now no longer relied upon, or if it is relied upon the Appellant accepts that it cannot currently prevail following Amirteymour & Ors (EEA appeals; human rights) [2015] UKUT 466 (IAC), is that in dismissing the appeal the judge erred in law in failing to have regard to the Appellant's rights under Article 8 ECHR in relation to any proposed removal of the Appellant. Permission to appeal was granted in relation to that specific ground at paragraph 3 of Judge Andrew's grant of permission.
7. The Appellant also raised grounds of appeal which I would describe in summary as follows:
(i) that the judge failed to have adequate regard to the Appellant's evidence, including the explanations provided by the witnesses as regards the alleged discrepancies, and failed to have regard to the remainder of the 126 questions which were not said to be discrepant;
(ii) that it was irrational for the Judge to find that the Appellant having had in the early part of his marriage a short extramarital affair, resulting in the conception of a child to another woman, tended to indicate that the Appellant was not in a genuine relationship with his wife;
(iii) that the Judge had failed to make any clear finding as to whether or not the Appellant's marriage to Mrs [A], which took place by proxy in Ghana, was a lawfully valid marriage under even the Ghanaian or Dutch law.
8. Those grounds were described by Judge Andrew as seeming to be nothing more than a disagreement with the judge's findings. However, Judge Andrew gave permission to appeal generally and I have not restricted submissions from Mr Doyle on behalf of the Appellant today.
9. I heard submissions from the parties which are a matter of record. I refer to them below as necessary.
10. In relying upon the grounds of appeal drafted by other Counsel, Mr Doyle did not seek to expand upon ground 3 which was to the effect that no finding was specifically made by the judge at First-tier as to whether or not the proxy marriage was valid. Ground 3 also seeks to argue that the case of Kareem (Proxy marriages - EU law) [2014] UKUT 0024, which held inter alia that to be valid, a marriage contracted between the appellant and a qualified person must be valid according to the national law of the EEA country of the qualified person's nationality, was incorrectly decided.
11. Mr Doyle does not seek to expand upon the grounds of appeal in that regard. I have indicated to him that I feel bound to adopt the approach in the case of Kareem.
12. I find that there is no discrete finding made by the First-tier Tribunal Judge as to whether the marriage was valid in Dutch law.
13. Mr Doyle's remaining submissions related to the judge's finding that the Appellant's marriage was one of convenience. Upon analysing the reasons given by the Respondent in her decision letter of 8 December 2014 and the findings of the judge at paragraphs 8 to 12 of the decision, it would seem that the second and fifth reasons advanced by the Respondent did not receive any specific consideration by the judge in her decision, although the judge did find that there were discrepancies in the Appellant's interviews and that she did not accept the explanations that had been provided. It may well be then that the judge should be treated as having adopted all six of the reasons that had been advanced by the Respondent in the decision letter.
14. However, I am concerned about the judge's conclusions in two respects. Firstly, in relation to the finding about the Appellant's child, the judge held as follows at paragraph 8:
"I find that the Appellant has entered a marriage of convenience. During the duration of this marriage the Appellant has had an allegedly brief relationship with another woman which has resulted in the birth of a child. These are not the actions of an Appellant in a genuine relationship with the sponsor as alleged or at all. I have heard a variety of explanations for that conduct which asserted that he got drunk and that it was a one-off and resulted in the birth of the child but the Appellant is plainly on cordial terms with the mother of the child and he sees the child and I draw an adverse inference as to the credibility of his explanation and that of the witnesses before me from the absence of any evidence from the mother of that child."
15. It is not entirely clear to why an adverse inference ought to be drawn against the Appellant's credibility merely from the fact that he seemed to be on cordial terms with the mother of his child. It may or may not be likely that the mother of a child conceived in such circumstances would allow the father of the child to maintain contact with her and the child.
16. However, and more particularly, the adverse inference that the judge drew was specifically stated to be on the basis that there was an absence of any evidence from the mother of that child. That transpires to be factually incorrect. There is a letter in the Appellant's bundle at page 22 from [CF], the mother of the Appellant's child, which describes that the Appellant is the father of their child, [G]. The letter confirms that the Appellant comes round once a week to spend quality time with his son and takes his son to the Appellant's own house, sometimes to spend time there with him and his wife as well. Ms [F] states that [G]'s welfare was extremely important to the Appellant, and she states that she wanted the Appellant to play an active role in decision-making throughout their son's upbringing.
17. It was therefore factually incorrect for the judge to assert that there was no evidence from the mother of the Appellant's child. Ms [F] gave evidence of the nature of the Appellant's relationship with his child. There was no suggestion within her letter of an ongoing relationship between herself and the Appellant. I am therefore concerned that this affair, and the consequences of it, which appear to have played a significant role in the judge coming to a finding that the Appellant's marriage is not a genuine one, is seriously undermined by the judge having omitted reference to the letter from the mother of the Appellant's child.
18. The second matter which I am concerned about relates to one of the alleged discrepancies relied upon by the Respondent in their decision letter of 8 December 2014, that being that in relation to the proposal, the sponsor stated that "You decided to get married in February 2012 whereas you [the Appellant] stated that it was on December 22 on her birthday".
19. It seems relevant to refer directly to the evidence that both witnesses had given in the marriage interview commencing at question 39. The question there was "So when did you decide to get married" to which the Appellant answered "December 22, it was her birthday. There was no party". And the wife answered "in February 2012".
20. Considering those two answers in isolation there would appear to be a difference in the date given, but I find that it is also appropriate to consider the next question asked by the Respondent, which is "So that's when you decided to get married?" That question may not have been put to the Appellant because the text box in his column is blank, but the sponsor, the Appellant's wife, answered "No, 22 December 2011. That's my birthday. He proposed."
21. It seems to me that the question such as "When did you decide to get married?" can often lead to confused answers because it could be understood to mean "On what date was the decision taken to marry?" on the one hand, or it could be interpreted as a question of "What date did you decide to marry on?". Any confusion which may have been in the Appellant's wife's mind was immediately clarified in her answer to question 40 and I find, and Miss Everett on behalf of the Respondent agrees, that there is no discrepancy in relation to that question being the date the decision was taken to marry. She says that that issue cannot be easily separated from questions which then immediately follow which deal with who was present at the time that the Appellant's proposal to his wife was made in which on any assessment there were difference between the Appellant's and his wife's answers.
22. The judge held simply that there were discrepancies in relation to the proposal. She does not particularise whether those discrepancies related to the date of the proposal or who was present at the time of the proposal.
23. I find that there is an element of doubt as to the safety of the judge's finding that there was a material discrepancy between the Appellant's and his wife's answers in relation to the proposal such that I am concerned about the sustainability of that part of the judge's decision. Taken together with the judge's previous error by finding an absence of evidence from the mother of the Appellant's child, I find that there are material errs of law in the judge's decision that the marriage was one of convenience. Had the judge not made such errors, I am not satisfied that the judge would inevitably arrived at the same conclusion on the central issue.
24. There was however, following Amirteymour, no error in law in the judge failing to make any findings as to whether refusal of a residence card to the Appellant was unlawful under Article 8 ECHR.
Notice of Decision
25. I set aside the decision of the judge dismissing the appeal.
26. Upon hearing from the parties as to the course of action to be taken in this matter, I find that the extent of fact-finding that is required to be made in the appeal (all matters, including whether the marriage is valid in law, and whether the marriage is one of convenience) are such that remittal to the First tier Tribunal is appropriate.
27. The appeal is remitted to the First tier Tribunal.
28. The present decision was given ex tempore in court before the parties. The Tribunal regrets the time taken for this written decision to be issued.

Signed:

Date: 21.10.16

Deputy Upper Tribunal Judge O'Ryan