Upper Tribunal (Immigration and asylum chamber), 2019-02-08, EA/03191/2017

CourtUpper Tribunal (Immigration and Asylum Chamber)
Publication Date08 March 2019
Appeal NumberEA/03191/2017
StatusUnreported

Appeal Number: EA/03191/2017


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: EA/03191/2017



THE IMMIGRATION ACTS



Heard at Cardiff Civil Justice Centre

Decision & Reasons Promulgated

On 3 January 2019

On 8 February 2019




Before


UPPER TRIBUNAL JUDGE GRUBB



Between


muhammed ashraf khan

Appellant

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Representation:

For the Appellant: Ms M Bayoumi instructed by Qualified Legal Solicitors

For the Respondent: Mr C Howells, Senior Home Office Presenting Officer



DECISION AND REASONS

Introduction

  1. The appellant is a citizen of Pakistan. On 10 May 2016, he married a Lithuanian national, Raimonda Lapinskaite. On 8 August 2016, he applied for a residence card as the spouse of an EEA national exercising Treaty rights in the United Kingdom under reg 18(1) of the Immigration (EEA) Regulations 2016 (SI 2016/1052). On 22 March 2017, the Secretary of State refused that application on the basis that the appellant was a party to a “marriage of convenience” and so was not a “spouse” of an EEA national.

  2. The appellant appealed to the First-tier Tribunal. In a determination promulgated on 28 March 2018, Judge Mathews dismissed the appellant’s appeal. He concluded that the appellant was indeed a party to a “marriage of convenience”.

  3. The appellant sought permission to appeal. Permission was initially refused by the First-tier Tribunal but on 16 October 2018 the Upper Tribunal (UTJ Kebede) granted the appellant permission to appeal.

  4. On 20 November 2018 the Secretary of State filed a rule 24 notice seeking to uphold the judge’s adverse decision.

The Judge’s Decision

  1. At the hearing before Judge Mathews, the respondent was not represented. The appellant was represented by Counsel and the appellant, sponsor and her son gave oral evidence. This evidence was not, of course, challenged by cross-examination in the absence of a Presenting Officer. In addition, the judge had written evidence, in particular from a health visitor (Louise Crawford) supporting the genuineness of the relationship between the appellant and sponsor. She had become involved with the appellant and sponsor because on 25 November 2017, the sponsor gave birth to a child of which the appellant is the father.

  2. There were a number of issues raised in the refusal letter, including discrepancies in the evidence of the appellant and sponsor at their respective interviews concerning their relationship and there was evidence of council tax bills relating to properties in Scarborough and Newport where the appellant and sponsor said they lived together but that the sponsor had, until she more recently made repayment, claimed a 25% reduction for single occupancy.

  3. In his determination, Judge Mathews set out that the legal burden, together with the initial evidential burden, was upon the Secretary of State to establish that the appellant’s marriage was a “marriage of convenience”. The judge then went on to consider the evidence, in relation to the council tax bills, the evidence from the health visitor (including that the appellant and sponsor now had a child together) and a number of “discrepancies” between the evidence of the sponsor and appellant in their respective interviews. The judge also took into account that the appellant had previously sought to remain in the UK as the “potential spouse” of another woman even after he had met the sponsor. The judge also referred to the fact that the appellant had a “poor immigration history” and has sought to avoid immigration control. The judge’s reasons are at paras 17 to 37 as follows:

17. My findings are inevitably set out sequentially, but I have considered all evidence in the round before prior to making any findings or reaching any conclusions.

18. I also note, as observed by the respondent, that council tax bills submitted to prove the claimed addresses of the appellant and sponsor in Scarborough and later Newport, give properties in the name of the sponsor, but then also grant her a 25% reduction for single occupancy.

19. The reference to single occupancy at the claimed addresses of cohabitation, together with the apparent discrepancies on the face of the marriage interviews, such as the appellant stating that his wife went with him to hospital in the last 12 months, when she denied any such attendance, are matters that persuade me to find that the respondent has met the legal burden of proof imposed by the decision of Rosa [2016] EWCA Civ.

20. I have noted the DNA results, photographs and maternity notes before me, I note too the letter from Louise Crawford (health visitor) at page 316 of the bundle.

21. I am persuaded to find from the consistent oral evidence, DNA paternity assessment, and supporting letter from the health visitor, that the appellant and sponsor have a child born on the 25th November 2017. I note that the health visitor has conducted parenting assessments over weekly visits for a 7 week period prior to her letter of the 12th January 2018. She suggests that the appellant and sponsor are committed and caring parents, and are in a genuine relationship with each other.

22. The account of the health visitor is supported by the account of the sponsor’s son, who spoke of similar commitments, and other letters of support.

23. I keep in mind the evidence above, and consider next the contents of the marriage interviews. I have noted with care that the appellant suggests that during his interview he was nervous and struggled to understand some questions, hence the apparently contradictory replies given by him and the sponsor in their interviews.

24. On reading the interviews in full I do find that there are significant discrepancies despite the assertions of nervousness and confusion by the parties.

25. I note simple erroneous answers, such as stating that the sponsor was with him at hospital, then later stating that she was not.

26. The sponsor could not give the names of the witnesses at the couple’s marriage, did not know what work her husband had been doing before he came to the UK. Was not sure how long he had been in Ireland claiming asylum, despite claiming to have been in a relationship at that point.

27. Both parties were unable to give full and consistent accounts of the jobs of their respective fathers.

28. I view those replies in the context of council tax bills indicating single occupancy of the homes claimed to have been occupied by both appellant and sponsor.

29. The sponsor said in relation to her Newport property that she had subsequently repaid her council tax refund, I do not accept that fact given that she made no mention of it in her witness statement, and produced no receipt for such repayment, something that would be reasonable to expect had she realised her error, recognised the impression of single occupancy that it had given, and sought to remedy it.

30. I also note that in her evidence the sponsor stated that the appellant had not been to Ireland, since they moved to Newport. That rather begs the question as to how the council tax for their property would ever had included a single occupancy discount if truthful details were provided when the accommodation was first taken up.

31. For the reasons given above, I am not satisfied that the couple have co-habited as claimed for the period claimed. I am not persuaded that they have had a genuine and committed relationship for the period claimed prior to the present application.

32. I note that the appellant accepts a previous attempt to secure status in the UK as the potential spouse of a woman in the UK, and that occurred after he had met this sponsor, yet she knew nothing of that fact. The appellant did not pursue that matter after refusal, despite asserting that the relationship had been genuine when making the application.

33. I note too that he accepts having been previously removed from the UK, and returning covertly. I find that he has a poor immigration history and has demonstrated a willingness to avoid immigration control by illegal entry, and to work illegally within the UK.

34. Bringing together these strands of evidence I find that the appellant and sponsor have a new child as claimed. I accept that the appellant is a caring and loving parent of that child, as noted by the health visitor.

35. I note the helath visitor’s views as to the relationship of the parents, but I must view all of the evidence before me. For the reasons set out above I am not persuaded that the relationship in this case is genuine and subsisting, despite a decision to conceive and gave birth to a child. I make that finding given the telling lack of knowledge displayed in marriage interviews, and the documentation recording that the sponsor lived alone in Newport and Scarborough, rather than with the appellant as claimed. The dreadful immigration history of the appellant reflects on his credibility, but is of course only a single factor.

36. I note and recognise the implication of my findings, that this man and the sponsor have conceived a child despite the fact that their relationship is not a genuine one as claimed. I have considered all matter at length, and I regret having to make such a finding, but I note that considerable...

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