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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004614
	First-tier Tribunal No: EA/00810/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 20 March 2025

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

 

Between

 

ENTRY CLEARANCE OFFICER

Appellant

and

 

AHSAN ULLAH

(NO ANONYMITY ORDER MADE)

Respondent

Representation :

For the Appellant: Mr S Walker, Senior Home Office Presenting Officer

For the Respondent: No appearance by or on behalf of the Respondent or his Sponsor

 

 

Heard at Field House on 14 March 2025

 

DECISION AND REASONS

1.               This is an appeal against a decision of First-tier Tribunal Judge Buckwell promulgated on 6 August 2024 in which the Ahsan Ullah's appeal against a decision to refuse an application for an EUSS Family Permit was allowed. The proceedings before the First-tier Tribunal were conducted 'on the papers' without a hearing on the election of the Appellant.

2.               Although before me the appellant is the Entry Clearance Officer, and the respondent is Mr Ullah, for the sake of consistency with the Decision of the First-tier Tribunal I shall hereafter refer to Mr Ullah as the Appellant and the Entry Clearance Officer as the Respondent.

3.               The Appellant is a citizen of Pakistan born on 15 January 1995 who at the date of his application, and seemingly at the date of his appeal, was living in Cyprus. He made an application for a Family Permit on 16 May 2023 on the basis of his relationship with Florentina Mihai, a Romanian national born on 21 January 1993 ('the Sponsor'). It was said that the couple had married in Bucharest on 14 September 2020. It was part of the Appellant's case that he had been recognised as a spouse by the authorities in Romania and been issued with residence documents there accordingly, and also that he had been admitted to the United Kingdom in 2020 under the 2016 EEA Regulations as the spouse of an EEA national.

4.               In the instant application the Respondent refused the application on the basis that the Respondent was not satisfied that the marriage was genuine. Essentially three matters were raised in the refusal. First, the Respondent had obtained a 'document verification report' ('DVR') in respect of the single pay slip that had been submitted to demonstrate the Sponsor's employment. It was the Respondent's position that the pay slip did not match Inland Revenue records that were checked by way of verification. The Respondent concluded that materially false information had been submitted in the course of the application and that this proportionately justified a refusal.

5.               The Respondent also relied upon an apparent failure of the Appellant to attend a marriage interview. It was said that email correspondence between the Respondent and the Appellant had seemingly initially been ignored, although there had been then a follow-up email. The Appellant's response appeared to be nonsensical, and the Decision Notice sets out what appears on its face to be a random series of letters. By way of response, it is said that a further email from the Respondent led to no further response. (For reasons that are not clear, the Respondent did not file the relevant email correspondence either before the First-tier Tribunal, or now before the Upper Tribunal, notwithstanding directions issued by Upper Tribunal Judge Reeds when granting permission to appeal to the Upper Tribunal.)

6.               It was also said in the refusal that there were discrepancies in the marriage certificate produced in support of the application. It was said that details were missing from that certificate that would normally be expected to be there. The Respondent has not particularised those missing matters. On scrutiny of the marriage certificate, it does appear as if one or two sections may not have been completed: in particular the surname of each of the parties after marriage has been left blank, and it is not adequately clear that the place of registration of the marriage has been completed - although I note that there is an untranslated stamp of what may be an authorising officer which may indicate the place of registration. Be that as it may, these were the three essential reasons for the refusal.

7.               The Appellant and the Sponsor attempted to rebut the reasoning of the Respondent by way of materials filed before the First-tier Tribunal. These materials included: a statement from the Sponsor; various 'screenshots' and photographs of laptop screens indicating email correspondence between the Appellant and the EUSS Team at the Home Office in respect of a marriage interview - in which the Appellant appears to indicate that the Sponsor is unwell because of complications arising from her pregnancy and the Team at the Home Office indicating that they would postpone any interview until after 4 March 2024, which is a date that falls after the Respondent's decision; there is also what purports to be a letter from the Sponsor's employer seeking to explain that there had been an error in respect of her payslips - the letter purports to confirm the fact of her employment for a period of a little over a month, and to say that there was an error in that the 'real time information' ('RTI') was not communicated to the HMRC. The Appellant also sought to rely upon an email from the authorities in Romania purportedly confirming the genuineness of his marriage certificate. He also submitted that the fact of the marriage had not only been previously accepted by the Romanian authorities in issuing the Appellant residence documents, but also in substance accepted by the Secretary of State in the fact that the Appellant was admitted to the UK in 2020 subsequent to his marriage.

8.               These materials found favour with Judge Buckwell who in substance accepted that they adequately addressed the case raised against the Appellant in the Respondent's refusal documentation. Judge Buckwell allowed the appeal accordingly.

9.               On appeal to this Tribunal the Respondent essentially raises a point of procedural fairness. The Respondent pleads that the documentation relied upon by the Appellant before the First-tier Tribunal was not served on the Respondent, who was therefore deprived of the opportunity of making any response.

10.           On perusal of the documents on file it does indeed appear that, contrary to the Directions issued by the First-tier Tribunal on 30 April 2024, the Appellant failed to serve his bundle on the Respondent, instead serving it only on the Tribunal. There is an indication that the Appellant's bundle was received by the Tribunal on 27 May 2024: the email enclosing the bundle sent to the Tribunal does not in any way copy-in the Respondent, and there is no other evidence that the bundle was sent to the Respondent.

11.           It seems to me that the deficiency of service of the materials is a matter that should have been identified by the First-tier Tribunal before deciding that it was appropriate to proceed to determine the appeal 'on the papers', and in any event in ensuring that all proper procedural requirements had been observed to ensure that the hearing, albeit a hearing 'on the papers', was to be conducted in fairness to both parties.

12.           Accordingly, notwithstanding what is otherwise on the face of the Decision a cogent consideration by the First-tier Tribunal Judge of the materials filed on behalf of the Appellant, there is a material error of law in that the procedures were not properly followed to an extent that there was unfairness to the Respondent. This requires the Decision of the First-tier Tribunal to be set aside.

13.           I have already indicated that there has not been compliance with the Directions issued by Judge Reeds in granting permission to appeal. Unfortunately, it is the case that Mr Walker informs me that the Respondent still has not had sight of the bundle filed by the Appellant before the First-tier Tribunal. The Respondent's grounds of challenge variously refer to the likely responses that the Respondent may have pursued upon receipt of the Appellant's bundle: in particular the email correspondence would have been scrutinised and checked against the Respondent's records to see whether such email exchanges had taken place or whether, as was the Respondent's original position, there had been an absence of communication from the Appellant; in respect of the letter from the Sponsor's employer, the Respondent says that an opportunity to further verify the contents of that letter - including presumably making a further check with HMRC to see whether what is purported to have been done in that letter has indeed been done - would have been considered and explored. No doubt the Respondent would also have wanted to consider, and address as appropriate, the correspondence seemingly emanating from the authorities in Romania in respect of the marriage certificate.

14.           However, in circumstances where the Respondent has still not had sight of the materials, and so cannot yet make any specific response, it is not possible for me today to proceed to re-make the decision in the appeal. In any event, in circumstances where in substance the First-tier Tribunal decision must be aside for significant procedural irregularity, fairness really demands that both parties have an opportunity of a further First-tier Tribunal hearing, whether that be an oral hearing or 'on the papers'.

15.           Accordingly the appeal is to be returned to the First-tier Tribunal for the decision to be re-made by any Judge other than First-tier Tribunal Judge Buckwell or First-tier Tribunal Judge G Cox (who refused permission to appeal in the first instance). Necessarily the Respondent will require to have sight of the Appellant's evidence. It would be expedient in the circumstances for the First-tier Tribunal to serve a copy of that evidence on the Respondent. Any other Directions as to onward case management will now essentially be a matter for the First-tier Tribunal - including giving consideration to whether this is an appeal that is suitable to be decided 'on the papers'.

16.           In this latter context, notwithstanding the issue in respect of the marriage interviews was based on a failure to attend without good reason, the hard reality is there has been no sort of interview of either the Sponsor or the Appellant: it may be that the First-tier Tribunal will consider in the circumstances it would be appropriate that at least one of the Appellant and Sponsor - if present in the United Kingdom - be required to attend a hearing to give evidence in support of the appeal. However, as I have already said, I will leave onward case management for the First-tier Tribunal upon receipt of the remitted appeal.

 

Notice of Decision

17.           The Decision of the First-tier Tribunal contained a material error of law and is set aside.

18.           The Decision in the appeal is to be remade before the First-tier Tribunal by any Judge other than First-tier Tribunal Judge Buckwell or First-tier Tribunal Judge G Cox with all issues at large.

 

(The above represents a corrected transcript of ex tempore reasons given at the conclusion of the hearing on 14 March 2025.)

 

I Lewis

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

18 March 2025