Upper Tribunal (Immigration and asylum chamber), 2016-05-24, IA/04200/2015

CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberIA/04200/2015
Publication Date23 May 2017
StatusUnreported

Appeal Number: IA/04200/2015


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA042002015



THE IMMIGRATION ACTS



Heard at Field House

Decision & Reasons Promulgated

On 9 May 2016

On 24 May 2016




Before


DEPUTY UPPER TRIBUNAL JUDGE SHAERF



Between


Andreea Bianca Dumaitru

(anonymity order not made)

Appellant

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Representation:

For the Appellant: Mr M Biggs of Counsel instructed by Addison & Khan, solicitors

For the Respondent: Mr T Melvin of the Specialist Appeals Team



DECISION AND REASONS

The Appellant

  1. The Appellant, Andreea Bianca Dumaitru, is a citizen of Romania born on 25 January 1988. She was issued a residence card on 5 March 2009 as an EEA national exercising Treaty rights in the United Kingdom. On 8 November 2013 she married Gurdeep Singh, a citizen of India born on 11 May 1988.

  2. On 30 May 2014 her husband applied for a residence card under Reg.7 of the Immigration (EEA) Regulations 2006 (the EEA Regs).

  3. On 7 October 2014 the Appellant and her husband were interviewed by the Respondent who on the same day refused to issue a residence card to the husband because she was satisfied that the marriage of the Appellant and her husband was a marriage of convenience within the meaning of Reg.2 of the EEA Regs.

  4. On 16 January 2015 the Respondent served on the Appellant a Decision to Remove her under Section 10 of the Immigration and Asylum Act 1999 and Regs.19(3), 21B(2) and 24 of the EEA Regs. This is the decision under appeal.

  5. Although there is a letter giving reasons for refusal for the husband, there is no similar letter in relation to the decision to remove the Appellant. It is clear what are the reasons from the grounds of appeal she lodged under Section 82 of the Nationality, Immigration and Asylum Act 2002 as amended and Reg.26 of the EEA Regs. These refer to the Respondent’s claim that her marriage was one of convenience and that with reference to Reg.21B of the EEA Regs she had abused her right to reside in the United Kingdom pursuant to the EEA Regs by entering into a marriage of convenience or fraudulently assisting another to attempt to obtain a right to reside.

  6. On 23 January 2015 the Appellant and her husband also lodged appeals against the respective decisions to refuse him a residence card and to remove her. CHECK

The First-tier Tribunal Proceedings

  1. The two appeals were linked and on 18 September 2015 Designated Judge of the First-tier Tribunal Manuell heard them and by a decision promulgated on 29 September 2015 found that the Appellant and her husband had entered into a marriage of convenience and dismissed both appeals. He found both the Appellant and her husband were neither reliable nor truthful witnesses.

  2. It appears that the husband, who by then was apparently no longer represented, submitted an application for permission to appeal. In the absence of any documentary evidence to the contrary, it would appear this was treated by the First-tier Tribunal as an application for permission to appeal by both the Appellant and her husband. The grounds challenged Judge Manuell’s finding that the marriage was a marriage of convenience. On 4 March 2016 Judge of the First-tier Tribunal A K Simpson refused permission to appeal.

Upper Tribunal Permission Application

  1. The husband appears to have taken no further action, but on 22 March 2016 the Appellant through her solicitors, a different firm from the firm instructed in the First-tier Tribunal proceedings, applied to the Upper Tribunal for permission to appeal.

  2. The grounds assert the Judge erred in finding the Appellant’s marriage to have been one of convenience and refer to the Appellant’s child by an EEA national with whom she had established a family life and assert the Respondent’s decision was a breach of the obligations owed to the Appellant and her child by reason of Article 8 of the European Convention and Section 55 of the Borders, Citizenship and Immigration Act 2009.

  3. On 6 April 2016 Upper Tribunal Judge Bruce granted permission to appeal on the basis that it was arguable the First-tier Tribunal had failed to consider whether the removal of the Appellant was a proportionate response in accordance with Reg.21B(2) of the EEA Regs and had not considered the consequences of removal for her child.

The Upper Tribunal Hearing

  1. The Appellant was present and I was informed that the Appellant’s partner, not Gurdeep Singh, who was the father of her child was outside the hearing room with their child. I explained the purpose and procedure of an error of law hearing. The Appellant confirmed her address was as shown in the Tribunal records.

Submissions for the Appellant

  1. Mr Biggs submitted the Judge had failed to make an adequate assessment whether the Appellant’s marriage was a marriage of convenience. In particular, he had:-

    1. adopted the wrong approach to the issue of where the burden of proof lay;

    2. not applied the appropriate test for a marriage of convenience, namely whether its sole purpose was for the abuse of a right to reside; and

    3. failed to consider the proportionality of the Respondent’s decision under Reg.21B(2) to remove the Appellant.

  2. The Judge had erred with regard to his approach to the burden of proof at paragraph 14 of his decision. He had relied on the jurisprudence of IS (marriages of convenience) Serbia [2008] UKAIT 00031. Subsequent to the First-tier Tribunal’s decision, the correct approach had been explained in Rosa v SSHD [2015] EWCA Civ 14. I notice that Rosa approved the approach described by the Upper Tribunal in Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038 (IAC). I note also that Judge Manuell referred expressly to Papajorgji at paragraph 14 of his decision.

  3. Mr Biggs referred to paragraph 21 of the Judge’s decision and submitted this contained an error of law because the Judge had found the marriage of the Appellant and Gurdeep Singh was:-

... a hollow shell and was entered into or predominantly to enable the First Appellant (the husband) to remain in the United Kingdom, after he had become an overstayer.”

Mr Biggs submitted the test for a marriage of convenience was not whether the pre-dominant purpose was an abuse of a right to reside, but whether the sole purpose was to facilitate an abuse of the right to reside. This submission did not mention but would appear to reflect the provisions of Recital 28 of the Citizen’s Directive 2004/38/EC which provides:-

To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, a Member State should have the possibility to adopt the necessary measures.’

  1. Mr Biggs then referred to Reg.21B(2) of the EEA Regs. He submitted that the removal directions must be a proportionate response. The Judge had not made any assessment of the proportionality of the decision to remove the Appellant. Proportionality was a fundamental issue which needed to be addressed. At most it could be said that the Respondent had alleged the Appellant had abused the right to reside. There needed to be a careful approach to such an allegation and the consequential decision of the Respondent to remove the Appellant. These were all material errors and the decision should be set aside.

Submissions for the Respondent

  1. Mr Melvin submitted the Judge had given adequate reasons to support his conclusion that the marriage of the Appellant and Gurdeep Singh was a marriage of convenience. He had not mis-directed himself as to the burden of proof. There was no evidence before the Judge to enable him to assess the proportionality of removal. The Appellant had been complicit in abusing the right to reside by entering into a marriage of convenience and consequently the decision to remove her from the United Kingdom was appropriate and proportionate. The decision contained no material error of law and should stand.

Response for the Appellant

  1. Mr Biggs submitted it was far from clear the Judge had applied the appropriate burden of proof and he had referred to the pre-dominant purpose of the marriage being an abuse of the right to reside rather than the sole purpose as specified by Recital 28 of the Citizen’s Directive. The Judge had never assessed the proportionality of the decision to remove to the legitimate purposes to the relevant criteria set out in the EEA Regs. The Appellant claimed to have been exercising Treaty rights since 2008. Mr Melvin interjected that it was accepted that she had arrived in 2008 but the Respondent had not seen evidence of her exercise of Treaty rights.

  2. At the end of the...

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