Onyemenam v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill |
| Judgment Date | 30 November 2011 |
| Neutral Citation | [2011] EWCA Civ 1639 |
| Docket Number | Case No: C5/2011/1598 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 November 2011 |
[2011] EWCA Civ 1639
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[Appeal No: IA/35477/2010]
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Case No: C5/2011/1598
Mr A Jafar (instructed by Graceland) appeared on behalf of the Applicant.
The Respondent did not appear and was not represented.
This is an application for permission to appeal against a determination of the Upper Tribunal, Immigration and Asylum Chamber, promulgated on 16 February 2011. The Tribunal upheld a determination of the First Tier, promulgated on 20 October 2010, that the marriage on which the applicant, SO, relied to establish his United Kingdom rights was a marriage of convenience. Mr Jafar, for the applicant, has helpfully referred me to the European instrument, Council Resolution 97/C382/01 of 4 December 2007. At paragraph 3, it is stated:
"Where there are factors which support suspicions for believing that a marriage is one of convenience, the Member State will issue a residence permit or an authority to reside to the third-country national on the basis of the marriage only after the authorities competent under national law have checked that the marriage is not one of convenience, and that the other conditions relating to entry and residence have been fulfilled. Such checking may involve a separate interview with each of the two spouses.
4. Should the authorities competent under the laws of the Member State find the marriage to be one of convenience, the residence permit or authority to reside granted on the basis of the third-country national's marriage will as a general rule be withdrawn, revoked or not renewed."
Mr Jafar has referred me to cases in which this issue has been considered in the Tribunal. I state the facts only briefly, having emphasised to Mr Jafar that this court is not the fact-finding tribunal. Of course, there may be a case where a misconstruction of the facts involves an error of law which is the concern of this court.
The applicant, aged 39, arrived in the United Kingdom in December 2007 as a visitor and stayed with his first cousin in London. He made an application for leave to remain as a dependent of his cousin, but that was refused in August 2010. The application was made on the basis of his purported marriage to a woman with United Kingdom rights, which occurred on 22 May 2009 in the Church of St Peter and St Paul, St Leonards-on-Sea, Sussex. There was clearly a factual issue, and that was essentially a matter for the Tribunal.
Mr Jafar has addressed me on the facts. I do not propose to specify in any detail the issues involved, which it appears to me were carefully considered in the Tribunal. Doubts were raised, to put it no higher, by the position of the cousin,...
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