Upper Tribunal (Immigration and asylum chamber), 2018-09-24, EA/05777/2017
| Jurisdiction | UK Non-devolved |
| Date | 24 September 2018 |
| Published date | 08 October 2018 |
| Hearing Date | 20 September 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | EA/05777/2017 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/05777/2017
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 20 September 2018 |
On 24 September 2018 |
|
|
|
Before
UPPER TRIBUNAL JUDGE PERKINS
Between
MOHAMED ALY AHMED ELRAW
(anonymity direction not made)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr S Karim, Counsel instructed by MA Consultants, Solicitors
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer
DECISION AND REASONS
-
This is an appeal against a decision of the First-tier Tribunal dismissing the appellant’s appeal against a decision of the Secretary of State to refuse him a permanent residence card in accordance with the Immigration (European Economic Area) Regulations 2016. The Secretary of State decided that the appellant was relying on a marriage of convenience and refused the application. The First-tier Tribunal dismissed the appeal.
-
There are three grounds of appeal but the clearest and strongest is that the First-tier Tribunal misdirected itself by applying the wrong burden of proof.
-
It is quite clear that the First-tier Tribunal Judge applied a shifting burden. She said at paragraph 8:
“The burden of proof is on the appellant to show that he meets the requirements of the EEA Regulations. The standard of proof is the usual civil standard of the balance of probabilities. As the respondent asserts in this case that the appellant is a party to a marriage of convenience, there is an initial evidential burden on the respondent”.
-
As long ago as 2004 in the decision VK (Marriage of Convenience) Kenya [2004] UKIAT 00305 the Immigration Appeal Tribunal regarded it as settled law that in such cases the burden of proof was on the Secretary of State. The appeal in VK proceeded on that basis with the agreement of the parties and the approval of the Tribunal. However this approach was disapproved in the decision of Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038 (IAC) which followed the decision in IS (marriages of convenience) Serbia [2008] UKAIT 31 that there is an evidential burden on an applicant to address “evidence justifying reasonable suspicion that the marriage is entered into for the predominant purpose of securing residence rights”. It went on to explain that the:
“question for the judge will therefore be ‘in the light of the totality of the information before me, including the assessment of the claimant’s answers and any information provided, am I satisfied that it is more probable than not this is a marriage of convenience?’”
-
This clearly does not stand up following the decision of the Supreme Court on 26 July 2017 (almost nine months before the First-tier Tribunal’s decision in this case) in Sadovska and Another v SSHD [2017] UKSC 54 which dealt with the point and particularly at paragraph 28 where Lady Hale said:
“That must mean, as held in Papajorgji, that the Tribunal has to form its own view of the facts from the evidence presented. The respondent is seeking to take away established rights. One of the most basic rules of litigation is that he who asserts must prove. It was not for Mrs Sadovska to establish that the relationship was a genuine and lasting one. It was for the respondent to establish that it was indeed a marriage of convenience”.
-
It follows that I am entirely satisfied that the First-tier Tribunal did misdirect itself.
-
Mr Whitwell argued that there was no material error. It is right to say that the First-tier Tribunal has given a reasoned judgment and has analysed the evidence.
-
The additional grounds of appeal are less impressive than the first. The second ground of appeal complains that there were no findings on potentially valuable items of evidence. Mr Karim was careful not to suggest that every item of evidence identified in a bundle needs a specific comment but he did point out that there was a statement from the appellant’s former wife, or said to be from her, which, if true, was wholly supportive of his case. It occurs at page 4 of the bundle. It is not clear what the judge made of this. It is considered at paragraph 21 in the sense that there is reference to the letter being provided and some acknowledgment of its contents. The judge then said that the “appellant’s former spouse did not attend the Tribunal so her evidence was not tested in cross-examination”. Regrettably,...
To continue reading
Request your trial