Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/16275/2015 &
IA/16277/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 April 2017
On 21 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE APPLEYARD

Between

Mr samir maddoui – first appellant
Ms immacolata pietrapertosa – second appellant
(anonymity direction NOT MADE)

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr G Lee, Counsel.
For the Respondent: Ms J Isherwood, Home Office Presenting Officer.

DECISION AND REASONS
1. These are linked appeals. The first Appellant is a citizen of Algeria and the second Appellant is a citizen of Italy. They appealed decisions of the Respondent dated 22 April 2015 refusing the first Appellant a Residence Card as confirmation of a right of residence under the European Community Law as the spouse of an EEA national exercising Treaty rights in the United Kingdom and a decision to remove the second Appellant on the grounds of abuse of rights in accordance with Regulation 21B(2) of the Immigration (EEA) Regulations 2006.
2. Their appeals were heard by Judge of the First-tier Tribunal Colvin who, in a decision promulgated on 26 September 2016, dismissed them.
3. The Appellants sought permission to appeal on the basis that they say the Judge erred in undertaking the Respondent’s role of cross-examining in the absence of a Home Office Presenting Officer at the hearing. The application was initially refused by Judge of the First-tier Tribunal Grimmett on 30 January 2017. However, a renewed application was made and in a decision dated 7 March 2017 Upper Tribunal Judge Chalkley granted permission to appeal. His reasons for so doing were:
“I am satisfied that it is properly arguable that the First Tier Tribunal Judge may have erred in adopting in (sic) inquisitorial approach, although it is possible that the Upper Tribunal may find that the judge was merely clarifying the witnesses evidence (given the serious allegation made by the respondent) and did not err.”
4. Thus the appeal came before me today.
5. At the outset of the hearing I referred both advocates to the authority of BW (witness statements by advocates) Afghanistan [2014] UKUT 00568 (IAC). Both were aware of the authority and subsequently addressed me upon it. The issues raised in this appeal relate to the conduct of the hearing before the First-tier Tribunal and I considered that BW may have relevance.
6. The nub of the grounds seeking permission to appeal can be found at paragraphs 6, 7, 8 and 9 of the grounds which were drafted by Mr Otchie of Counsel who was the advocate for the Appellants in the First-tier Tribunal. Those grounds state:-
“6. Yet, in order to substantiate the veracity of their marriage, before the Tribunal, the Appellants each submitted detailed witness statements that explained why they had committed certain errors and then averred that their marriage was indeed genuine. No HOPO was in attendance to cross-examine the Appellants.
7. In the usual course of events, the Appellants’ evidence ought to have been accepted in full by the FTT; the Appellants’ evidence was unchallenged by the Respondent, who was the only party opposed to the appeal and therefore, it was appropriate for the Respondent only to challenge the Appellants’ evidence. The Respondent had been given every opportunity to attend the hearing, yet failed to do so. However, the approach FTT Judge Colvin, was to ask a number of detailed and searching questions herself [see page para 10 of the FTT determination], effecting (sic) undertaking the Respondent’s role in cross-examination.
8. After asking her questions, the Judge was very critical of the Appellants’ evidence and came to the conclusion that she ‘had no doubt’ the marriage was one of convenience [see para 27 of the FTT determination]. However, the Judge had effectively adopted an inquisitorial approach, contrary to English common law, as the Respondent was not present to challenge the Appellants’ evidence.
9. The Judge did exceed the function of undertaking reasonable judicial enquiries. At para 24 of the FTT determination, it is clear that she formed a certain view of the Appellants and the individuals with whom they share a household, without even putting such matters to them. To this extent, the Appellants did not receive a further hearing and it cannot be discounted that the (rather fundamental) matters not put to the Appellants (who lives at their address) affected the overall outcome of the determination [see para 27 of the FTT determination].”
7. In his submissions Mr Lee expanded the grounds seeking permission to appeal. Whilst acknowledging the guidance in BW he urged me to accept that from consideration of the Judge’s decision alone I was entitled to draw the conclusion that the Judge had “stepped into the arena”. Accordingly any witness statement by Mr Otchie, pursuant to BW, could do no more that highlight that with particular reference to paragraphs 10, 12 and 23 of the Judge’s decision. They state:
“10. In answer to questions from myself the first appellant said that he was in immigration detention for about a month and his wife visited once and she was in charge of making the bail applications. He was not working last Saturday but his wife was working a double shift leaving at 9 to 10am and returning at 10 to 11 pm. They last had a meal together at Nando in Wood Green. On Sunday he did not work and his wife worked half day on a morning shift. He was not at home when she came back but they met between 5 to 6 pm. Neither of them cooked on Sunday and he thinks that they ate at different times and cannot remember if they ate together. Christina was not there on Sunday evening as she was working. Christina is also Italian and she went back to Italy about 3 to 4 weeks ago staying for a couple of weeks as a cousin was ill. She returned about a month ago. In re-examination he said that that (sic) his wife sometimes eats breakfast at home and she might eat a croissant.
12. In oral evidence she confirmed that she and her husband communicate in English with each other. She felt under pressure during the interview and was forced by the interviewer to say what she wanted to hear. She did say after the first appellant was detained that he was a friend as she was threatened with being arrested if she didn’t say that. She lives with her husband and Christina. The rent is £1385 per month which is shared equally between them of £462 per month. She pays the rent through her bank account by direct debit: she pays for her husband and Christina pays her by direct debit into her bank account. Her friends are Christina, Mike and Ilaria and her husband’s friend is Mohammed. They visited a woman friend of his for a birthday party and she came to their house about 4 months ago for tea. At their home yesterday was herself, her husband, Mike and Christina. She and her husband spent the day out and returned at 5pm when Mike was already there. Christina was working until 5pm. On last Sunday neither herself nor her husband were working: she had a rest and then they went for a walk with the dog. They had dinner together after ordering food from Just Eat which was delivered. Christina works at the same place as herself and she has friends round to the home and the appellant would have met some of them. She went back to Italy in June when her cousin died and came back 3 weeks ago. She does not remember the name of the appellant’s (sic) with whom they shared at Dieppe Close, it was an Arabic name and don’t remember his nickname. Her friend Ilaria visits them and she last visited no more than 3 months ago. Yesterday she and the appellant went to the solicitors office and then to Nandos. She would follow the appellant to Algeria if she had to and is trying to learn a bit of French. She goes out to get a croissant and coffee for breakfast.
23. In addition to these discrepancies and inconsistencies in the marriage interview record, there were the significant differences in the evidence of both appellants at the hearing particularly in relation to the previous few days. These include the following:
The first appellant said that he and his wife were at home together yesterday when the friend Mike came round at about 4 to 5 pm and Christina came home around 3 to 4 pm. The second appellant said that she and her husband spent the day out of the home yesterday and returned at 5 pm when Mike was already there.
The first appellant said that he did not work last Sunday but his wife worked a half-day shift in the morning and he was not at home when she came back. They met at home at about 5 to 6 pm and he could not remember whether they ate together and thought that they had ate (sic) separately. The second appellant said neither herself nor her husband worked last Sunday and they went for a walk together with the dog. She also said they had dinner together getting a delivery Just Eat.
The first appellant said that Christina who also lives at the accommodation never brings anyone home when he is there whereas the second appellant said that Christina has friends round and her husband would have met some of them
The second appellant was unable to remember the name or nickname of her husband’s friend with whom they shared accommodation for 5 months between July to November 2014.”
8. Mr Lee submitted that the Judge had gone beyond seeking clarification and had effectively cross-examined both the Appellants and the witness Christina Santini adopting the classic “Mr & Mrs questions” often used by the Respondent. The Judge had tested one witness against the other and by virtue of paragraph 23 of her decision had made a material error of law. He referred me to the authority of MNM (Surendran guidelines for Adjudicators) Kenya* [2000] UKIAT 00005 and particularly drew my attention to paragraph 6 of the Surendran guidelines annexed thereto. He highlighted paragraph 21 and urged me to accept that in the instant appeal before me there was nothing to suggest that the Appellant’s Counsel had waived the irregularity (“stepping into the arena”) by failing to challenge the Judge’s approach. It is plain, he asserted, that the Judge’s conduct was irregular but no clear waiver was made. He emphasised the mandatory language used in paragraph 6 of the Surendran guidelines with particular reference to it “not” being the function of the Judge to expand upon the Respondent’s refusal letter nor to raise matters which are not raised in it unless these are matters which are apparent to the Judge from a reading of the papers. That guidance is in fact further detailed by comment that in such circumstances the matter should be drawn to the attention of the Appellant’s representative who should then be invited to make submissions or call evidence in relation thereto.
9. Ms Isherwood urged me to accept that there was no material error of law within the Judge’s decision. BW was applicable and it was incumbent upon those seeking permission to appeal to provide evidence from the advocate at the hearing. Not only is there no evidence from that source but also no copy of any record of proceedings held by Counsel. The grounds are no more than “simple assertions”. On a reading of the totality of the Surendran guidelines (not just paragraph 6) the Judge was entitled to proceed in the way that she did. It was plain the Judge had gone through the totality of the papers and evidence and important to note that the Appellants’ advocate did not challenge, at the hearing, what was occurring. These were Appellants who had had every opportunity to present their case and had been given the benefit of an Algerian interpreter to remedy the complaints that they made regarding the conduct of their interview. The Appellant’s evidence was inconsistent at interview and the Judge was entitled to take this into account in her approach to the hearing. She submitted that the Judge had not materially erred.
10. I find this an appeal where BW is relevant and it was incumbent upon Mr Otchie (Counsel in the First-tier hearing) to provide a witness statement for the purposes of today’s hearing to demonstrate that the Appellants were deprived of their right to a fair hearing at first instance. I do not find, as Mr Lee asserts, that this is a case where such evidence is not required as the decision speaks for itself on the relevant issues. Mr Lee’s argument goes beyond the mere “stepping into the arena” and encompasses the issues of “waiver”.
11. That said even if the witness statement asserted no more than what is within the grounds seeking permission to appeal (as Mr Lee says it could only do) I would in the circumstances still have come to the same conclusion as I do below. Namely that the decision discloses no material error and should not be set aside.
12. I record that this is a Judge who has taken into account the totality of evidence that was before her and even if she has erred as asserted, in light of the evidence that fell to be considered, any alleged error in terms of “stepping into the arena” cannot be said to be material.
13. The Surendran guidelines, as annexed to MNM, set out the procedure to be adopted by a Judge where the Home Office chooses not to be represented. Consequently it was incumbent upon the Judge in this appeal to deal with it on the basis of the contents of the letter of refusal and any other written submission which the Respondent chose to make when indicating she would not be represented. Paragraph 2 of the guidelines state:
“…The function of the adjudicator is to review the reasons given by the Home Office for refusing asylum within the context of the evidence before him and the submissions made on behalf of the appellant, and then come to his own conclusions as to whether or not the appeal should be allowed or dismissed…”

That is what Judge Colvin has done including an observance of the correct burden and standard of proof. Likewise the Judge (paragraph 3) has plainly taken particular care to read all the papers in the bundle before her prior to the hearing. Issues of credibility had been raised and it is apparent from the decision itself, as she was obliged to do, that the Judge ensured that the credibility issues were addressed. Paragraph 22 of her decision states that the main significant issues relied upon by the Respondent were set out in the refusal letter and that the Appellants provided in their written statements explanation as to how inconsistencies in their respective answers came about. The Judge concluded that discrepant evidence had been given rendering it incredible. It is in considering the totality of the evidence that the Judge has come to her conclusion that the marriage entered into is one of convenience.
14. In all the circumstances I do not find that the Judge has “entered into the arena”. She has sought to clarify issue that fell to be determined, applied the correct burden and standard of proof and come to conclusions that were open to be made on the totality of the evidence. Even if she has “entered into the arena” as asserted by Mr Lee her error would not, on the individual facts of this particular appeal, and the totality of the evidence, amount to a material one.

Conclusions

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 20 April 2017

Deputy Upper Tribunal Judge Appleyard