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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: EA/08222/2017

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On 31 January 2019	On 12 February 2019

 

Before

 

UPPER TRIBUNAL JUDGE RINTOUL

 

 

Between

 

OLEKSANDR ZADRONZHNYY

(NO ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Ms Patyna, instructed by Sterling Lawyers

For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

 

 

DECISION MADE PURSUANT TO RULES 34, 39 & 40 (3) OF THE

TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

 

1. The appellant appeals with permission against the decision of the First-tier Tribunal promulgated on 25 September 2018.

 

2. I am satisfied the Judge misdirected himself in law as to who bears the burden of proof and that was compounded by the reference to the Appellant not having rebutted the evidence of the Respondent. The Judge focused on whether the marriage is subsisting and not on whether marriage is one of convenience, that is, a sham from the beginning. He failed to make any findings as to whether the marriage was one of convenience from the beginning which was for the SSHD prove, despite apparently having accepted that it was not when granting an initial residence card. For those two reasons alone, the errors were material to the outcome. Given the failure properly to evaluate all of the evidence, the matter needs to be remitted to be heard again by a different Judge.

3. Rule 40 (1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 provided that the Upper Tribunal may give a decision orally at a hearing which I did. Rule 40 (3) provides that the Upper Tribunal must provide written reasons for its decision with a decision notice unless the parties have consented to the Upper Tribunal not giving written reasons. I am satisfied that the parties have given such consent at the hearing.

 

Notice of Decision

 

1.       The decision of the First-tier Tribunal involved the making of an error of law and is set aside.

 

2.       I remit the appeal to the First-tier Tribunal for a fresh hearing on all issues.

 

 

Signed Date: 31 January 2019

Upper Tribunal Judge Rintoul