United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/13333/2014

THE IMMIGRATION ACTS

Heard at Manchester	Decision & Reasons Promulgated
On June 9, 2017	On June 13, 2017

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE ALIS

 

 

Between

 

MR MUDASSIR ALI

(NO ANONYMITY DIRECTION MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation:

Appellant Mr Brown, Counsel, instructed by Arshed & Co

Respondent Mr McVeetie (Senior Home Office Presenting Officer)

 

 

DECISION AND REASONS

 

1.              I do not make an anonymity order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).

 

2.              The appellant claimed to have entered the United Kingdom on a student visa on September 24, 2010. On June 20, 2012 his leave was curtailed and on September 24, 2013 he was encountered by immigration officers attempting to marry a Polish national. He was arrested and a marriage interview took place. No charges were brought and on October 25, 2013 the appellant married and he then submitted an application for a residence card as the spouse of an EEA national.

 

3.              The respondent refused that application arguing the marriage was a marriage of convenience. The appellant appealed that decision under Regulation 26 of the Immigration (EEA) Regulations 2006 and section 82(1) of the Nationality, Immigration and Asylum Act 2002.

 

4.              His appeal came before Judge of the First-tier Tribunal Scobbie on May 28, 2014 who considered the appeal on the papers. In a decision promulgated on June 9, 2014 he found the decision was not in accordance with the law primarily because the respondent failed to provide the record of interview from September 24, 2013. The respondent appealed that decision and former Deputy Upper Tribunal Judge Bruce found there was an error in law and remitted the decision back to the First-tier Tribunal.

 

5.              The appeal was listed before Judge of the First-tier Tribunal White on March 25, 2015 and he adjourned the appeal and gave directions. The matter was then relisted before him on September 2, 2015 and again the appeal had to be adjourned. A transfer order was signed due to the Judge's illness and the appeal was listed afresh before Judge of the First-tier Tribunal Heynes on June 21, 2016. In a decision promulgated on August 16, 2016 he dismissed the appellant's appeal.

 

6.              Permission to appeal was originally refused by Judge of the First-tier Tribunal Kimnell on December 8, 2016 but following renewed grounds of appeal Upper Tribunal Judge Grubbfound it arguable, on February 20,. 2017, that there was an error in law on the basis that the minute of the interview was insufficient to discharge the respondent's burden of proof.

 

7.              The matter came before me on the above date.

 

Submissions

 

8.              Mr Brown adopted his grounds of appeal and submitted that the Judge erred in finding the respondent had satisfied the evidential burden of proof placed on them in Papjorgii (EEA spouse-marriage of convenience) Greece UKUT 38 (IAC). He pointed to the fact that the respondent stopped the appellant marrying in September but then took not steps to stop them marrying a month later. At a previous appeal there was criticism of the respondent for failing to provide the interview transcript and when the case came before Judge White he had adjourned the case for the transcript. That transcript was not before Judge Heynes and as the minute was challenged he submitted the respondent had not demonstrated the marriage was a marriage of convenience and therefore Judge Heynes erred by requiring the appellant to show the marriage was genuine. He invited me to remit the matter once again back to the First-tier Tribunal.

 

9.              Mr McVeetie adopted the Rule 24 response dated March 8, 2017 and argued that the respondent only had to show on balance that the marriage was one of convenience. The Judge had concerns about a witness and had regard to the events surrounding the appellant's arrest in 2013 and was entitled to place weight on the minute. The interview record was not available but the Judge made his findings on the evidence presented to him. The respondent was not able to prevent a marriage taking place although she had the right to intervene. He accepted the Judge's findings on the appellant and his wife's language skills may have been in error but was not an error in law because of the earlier finding. He agreed that if there was an error in law the case should be remitted back to the First-tier Tribunal.

 

Findings

 

10.          Incredibly this is an appeal that dates back to an application originally submitted in November 2013. The appellant's appeal has been before a First-tier Tribunal Judge on no less than three occasions. The first decision was set aside, the second appeal was not concluded due to the illness of the Judge and the third listing has been appealed. If I find an error in law then this appeal will appear before a fourth First-tier Judge.

 

11.          Missing at each of the previous hearings was the interview record that took place in September 2013. It is this interview that led the respondent to conclude the marriage was a marriage of convenience.

 

12.          It is trite law following the decision of of Papajorgji that it is for the respondent, as the maker of the allegation, to demonstrate on the balance of probabilities that the marriage is a marriage a marriage of convenience. It is only if the respondent demonstrates this that the burden of showing the marriage was genuine when entered into transfers to the appellant.

 

13.          The Judge recognised this principle at paragraph [7] of his decision and he also noted that the Court of Appeal stated in Rosa v SSHD [2016] EWCA Civ 14 that if the respondent adduced evidence capable of pointing to the conclusion that the marriage is one of convenience the evidential burden shifted to the appellant and a t paragraph [15] of his decision the Judge reminded himself of this principle.

 

14.          The Judge then considered the evidence noting the respondent relied on a case record sheet and he set out the content of that sheet. The marriage interview has not be produced and it is this fact that Mr Brown relies on to argue that the Judge erred. He submits the Judge's approach in paragraphs [20] to [21] was defective and amounts to an error in law.

 

15.          The Judge had concluded the evidence adduced was capable of discharging the respondent's burden of proof. He considered the report and summarised the officer's concerns as:

 

a.       The appellant and EEA national gave different accounts of how they met.

b.       The appellant was unable to spell the EEA national's name properly.

c.        The EEA national claimed to have a close relationship with the appellant's sister-in-law but was unable to give the name of the three-month old child.

d.      The appellant pronounced the name of his mother-in-law phonetically and not as he would have heard it spoken.

e.       The appellant mispronounced the name of the EEA national's brother.

f.         The interviewing officer was not satisfied the appellant's level of English would be sufficient to converse with the EEA national.

g.       They gave different accounts of their post wedding plans with the appellant stating they intended to stay a few days in Glasgow and the EEA national stating they had to return home to look after the dog.

h.       The EEA national could not remember the name of the appellant's parents.

i.         The EEA national claimed they had a physical relationship whereas the appellant stated they did not.

j.         The appellant could not give any details about the EEA national's friend despite the fact she lived in the same house.

k.       Male called Javed Iqbal was present at the wedding. The EEA national did not know his name and neither she nor the appellant could give a credible explanation why he was present.

 

16.          Mr McVeetie accepted at today's hearing that the Judge wrongly placed weight on the comment that they may be unable to converse in English especially as he had been here attending college where his lessons were in English. However, he submitted that this error was not material because the Judge had ample other evidence that demonstrated the respondent satisfied his burden of proof.

 

17.          One of Mr Brown's argument on the absence of the interview is that after the interview they were released and no charges were ever brought and they were then not prevented from marrying. In essence, he challenges the relevance of the interview and if the respondent had no basis upon which to challenge the marriage itself then there was no burden for the appellant to meet.

 

18.          I have considered the grounds of appeal very carefully and in particular paragraphs [7] to [12] of those grounds. Whilst Mr Brown used the words "purportedly had taken place" when describing the interview, the grounds do not appear to take issue with anything in that minute except the English point. The statements of the appellant and witness put some of the discrepancies down to pronunciation.

 

19.          I am told by Mr McVeetie that the interview is not on the respondent's file and I am satisfied that if it has not been produced by now, despite being asked for by the Tribunal, then the chances are it will never will be. The Judge who dealt with the appeal would have been aware there was no interview record and he dealt with the case on the evidence before him.

 

20.          Mr Brown's submission appears to be that that unless the interview record is produced then the respondent could never meet the burden. He asked that the decision be set aside and if necessary the immigration officer be summonsed to attend in the absence of the record.

 

21.          Mr McVeetie's response is that the respondent only has to demonstrate on the balance of probabilities that it was a marriage of convenience. That presumption then becomes rebuttable by the appellant.

 

22.          The Judge erred with regard to his approach over the language spoken by the appellant and the EEA national but on its own this would not be sufficient to negate the other evidence when considering whether the respondent had demonstrated on the balance of probabilities that it was a marriage of convenience.

 

23.          I am satisfied the evidence adduced was sufficient for the respondent to satisfy his burden of proof. On the issue of whether the respondent satisfied the burden of proof I find no error.

 

24.          Mr Brown's argument is that the Tribunal should have seen the whole interview because that may have shown the parties answered most of the questions correctly and this could alternatively be used to rebut the burden placed on the appellant. That is a valid point to make and is something that the Judge dealing with the appellant's appeal would have had to grapple with.

 

25.          It is the second ground of appeal that causes me concern. Having satisfied myself the Judge was entitled to find the burden had shifted he then had to consider whether the appellant had demonstrated on the balance of probabilities that it was not a marriage of convenience. At paragraph [21] of his decision the Judge erroneously (accepted by Mr McVeetie) made a finding about their ability to speak to each other in a common language. Whilst this was not the only reason for rejecting the appellant's submission the Judge returned to this issue again in paragraph [26] and made a negative finding. Mr McVeetie did not argue the Judge's approach was correct.

 

26.          I find myself drawn to the conclusion that it is on the assessment of whether the appellant satisfied the burden placed on him there was an error in law because this finding infected the Judge's assessment.

 

27.          Sadly, I find myself having to remit this matter back yet again to the First-tier Tribunal under Part 3, Section 7.1 to 7.3 of the Practice Statement. I remit it because oral evidence will be required and full assessment is needed.

 

28.          As I am remitting the matter I do not preserve any of the findings and I do not seek to impose my view of whether the respondent satisfied the burden of proof on any Judge re-hearing this appeal.

 

29.          Mr Brown wanted a witness summons for the author of the case record. Mr McVeetie indicated the person still works for the respondent. I am uncertain how much further the witness would take matters bearing in mind the interview was in September 2013 as it appears the original interview record is missing.

 

30.          Mr McVeetie confirmed the individual continues to be employed by the respondent and it may assist the Tribunal if the respondent obtains a witness statement from the individual concerned and serves it on both the Tribunal and the appellant's representatives.

 

31.          I make it clear the fact the notes are missing does not mean no weight should be attached to the record provided. Ultimately it would be a matter for the Judge hearing the appeal to decide what weight to attach to the absent record having regard to all of the available evidence.

 

32.          I direct that any additional evidence should be served on both the Tribunal and other party in accordance with the current Procedural Rules.

 

33.          If the appellant wishes the case worker who prepared the note to attend then an approach should be made to the respondent and if a witness summon is needed the Tribunal should be informed in the usual manner.

 

DECISION

 

34.          The appeal is remitted back to the First-tier Tribunal for a de novo hearing.

 

35.          If an interpreter is required then the appellant's solicitors should notify the Tribunal not less than seven days before the remitted hearing date.

 

 

Signed: Dated:

 

 

Deputy Upper Tribunal Judge Alis