Isufaj (PTA Decisions/Reasons; EEA R 37 Appeals)
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Gill |
| Judgment Date | 12 August 2019 |
| Neutral Citation | [2019] UKUT 283 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 12 August 2019 |
[2019] UKUT 283 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Gill UTJ
The Claimant appeared in person, accompanied by the sponsor;
Mr T Melvin, Senior Home Office Presenting Officer, for the Secretary of State.
Safi and Others (Permission to appeal decisions) [2018] UKUT 388 (IAC)
Immigration (European Economic Area) Regulations 2016, regulations 23(6)(b), 36, 37 & 41
Nationality, Immigration and Asylum Act 2002, sections 82, 92 & 104
Tribunal Procedure (Upper Tribunal) Rules 2008, rules 45(1) & 46
Procedure and process — out-of-country appeals — regulation 37 of the 2016 Regulations — temporary admission — permission to appeal — distinction between “decision” and “reasons” sections — Safi and Others (Permission to appeal decisions)[2018] UKUT 388 (IAC) applied — “decision” crucial element when contradiction existed
The Claimant, a citizen of Albania, was refused asylum in the United Kingdom and removed to Albania in 2016. He attempted to enter the United Kingdom in February 2017 in the company of his wife, the sponsor, who was a citizen of Lithuania. Both were refused admission as the Immigration Officer considered that their marriage was a marriage of convenience. The Claimant exercised his right of appeal against that decision under the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) after he had left the United Kingdom. At the hearing of the appeal in November 2017, the First-tier Tribunal (“FtT”) Judge heard oral evidence from the sponsor. The Judge dismissed the appeal, finding that the Claimant had “fallen far short of showing that, on balance his marriage to the sponsor was genuine”. The Judge also noted the lack of documentary evidence about the couple's relationship in general.
In his grounds for permission to appeal to the Upper Tribunal (“UT”), the Claimant submitted that the FtT Judge had wrongly treated him as bearing the burden of showing that his marriage to the sponsor was not one of convenience. He also pointed out that the evidence before the Judge had included over 100 photographs of the couple in various locations at various times, including on their wedding day, and documentation showing that the sponsor had visited the Claimant in Albania several times in 2017.
FtT Judge Grimmett granted permission to appeal in April 2018. The decision stated in terms “The application is granted”. In paragraph 1 of the “reasons for decision” section, Judge Grimmett noted that the application was 14 days out of time and, as there was no explanation for the delay, “I do not extend time”. In paragraph 2 of the reasons, Judge Grimmett stated that it was arguable that the FtT Judge had erred in requiring the Claimant to show that there was a genuine marriage when the initial burden was on the Secretary of State for the Home Department to show it was a marriage of convenience.
The appeal came before a Deputy UT Judge in July 2018 who decided that there was no valid appeal before him. The Deputy Judge considered that Judge Grimmett's decision in paragraph 1 not to extend time was the “first decision” and took precedence. What Judge Grimmett subsequently decided in paragraph 2 of the grant of permission to appeal was therefore irrelevant. The Claimant applied for permission to appeal to the Court of Appeal.
Upon receiving the application, the UT Judge decided to undertake a review of the Deputy Judge's decision pursuant to rule 45(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008. The UT Judge relied on Safi and Others (Permission to appeal decisions)[2018] UKUT 388 (IAC), which drew a distinction between the “decision” and the “reasons for decision” sections in the standard form document, and set aside the Deputy Judge's decision. As a result of the “set aside” decision, the Claimant's appeal was listed for hearing in May 2019. The Claimant appeared in person at the hearing, accompanied by the sponsor. He had entered the United Kingdom shortly beforehand, with the aim of attending the hearing. The Secretary of State had granted him temporary admission, with directions being set for his removal to Malta immediately after the hearing. The UT invited submissions from the parties on whether the Claimant could pursue his appeal from within the United Kingdom, having instituted the appeal whilst outside it.
Held, setting aside the FtT decision:
(1) The significance of the distinction between the “decision” and the “reasons for decision” sections in the standard form document did not merely provide an answer to the problem that faced the UT in Safi and Others of whether a grant of...
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Ali (Permission Decisions: Errors; Slip Rule)
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