Upper Tribunal (Immigration and asylum chamber), 2017-11-29, IA/31894/2015
| Jurisdiction | UK Non-devolved |
| Date | 29 November 2017 |
| Published date | 15 December 2017 |
| Hearing Date | 19 July 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/31894/2015 |
Appeal Number: IA/31894/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31894/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 19 July 2017 |
On 29 November 2017 |
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Before
UPPER TRIBUNAL JUDGE KOPIECZEK
Between
Onyebuchi Sabastine Onah
(Anonymity Direction Not Made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms C Nicholas, Counsel
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer
DECISION AND REASONS
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The appellant is a citizen of Nigeria, born in 1972. He made an application for a residence card as confirmation of a right of residence as the spouse of an EEA national exercising Treaty rights in the UK. His partner is a French citizen.
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The respondent refused the application in a decision dated 27 February 2015. The respondent’s decision was to the effect that the marriage was one of convenience, and that in any event it was not a marriage that was legally valid in Nigerian law. Furthermore, insufficient evidence had been provided to establish that the appellant and the person said to be his partner are in a durable relationship.
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The appellant’s appeal against the respondent’s decision came before First-tier Tribunal Judge Cockrill (“the FtJ”) on 9 November 2016. Relying on the decision of the Upper Tribunal in TA and Others (Kareem explained) Ghana [2014] UKUT 00316 (IAC) (but see also Kareem (Proxy marriages – EU law) [2014] UKUT 00024 (IAC)) and Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC), he dismissed the appeal.
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In relation to the decision in Kareem he found that there was no evidence that the French authorities had accepted the appellant’s proxy marriage as a lawful marriage. In relation to Sala he found that the appellant had no right of appeal as an extended family member.
The Grounds and Submissions
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I summarise the grounds of appeal, as initially advanced, upon which permission was refused, and in terms of the renewed grounds. I take the two as a composite whole. The initial grounds contend that the FtJ failed to take into account the extent of the documentation establishing that the parties were in a relationship akin to marriage. Documents, it is said, cover a period from 2013 to 2016.
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It is argued that in TA & Others the Upper Tribunal had decided that it was imperative to look at the question of a durable relationship in the absence of evidence that a marriage was accepted in the relevant Member State.
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It is further argued that the FtJ was wrong to fail to have regard to the Article 8 rights of the appellant and his spouse.
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In the renewed grounds the decision in Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178 was relied on in terms of its having overruled Kareem. The renewed grounds further contend that with reference to the Immigration (European Economic Area) Regulations 2016 (sic), the appellant is entitled to a residence card as a person who is in a durable relationship and is therefore an extended family member. It is argued that he was entitled to a right of appeal on that basis.
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The submissions on behalf of the appellant were, it has to be said, rather wider ranging than the matters advanced in the grounds. It was conceded that the appellant had no entitlement to have his or his partner’s Article 8 rights considered, in the light of the decision in Amirteymour and others (EEA appeals; human rights) [2015] UKUT 00466 (IAC). That was a proper concession to be made on behalf of the appellant.
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It was then submitted that, contrary to the ‘rule 24’ response, there was evidence before the Home Office in relation to the validity of the marriage in Nigerian law. On the other hand, it did at one stage appear to be accepted by Ms Nicholas that such evidence was not before the FtJ.
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There was then reference to a document entitled ‘Grounds for Permission to Appeal and Further Submissions’, dated 19 July 2017, although it was not a document that had been provided to the respondent, Mr Jarvis not having seen it, and nor was it provided to me.
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However, after the hearing had concluded that document was brought to me in the afternoon. It has a date stamp of receipt of 19 July 2017. There is a fax date of 18 July 2017 at 16:28, although it is not clear whether that is the date upon which it was provided to the Tribunal. In any event, it was not provided in a timely fashion. Nevertheless, at this point I shall summarise its contents.
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It refers to the decision in Awuku. It then states that an affidavit and a customary marriage certificate in relation to this appeal, was prima facie evidence that the marriage was performed in accordance with Nigerian law. It is asserted that the respondent had not provided any evidence to the contrary.
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It next states that the appellant instructed that the marriage was celebrated by proxy in Anambra State in Nigeria and purports to refer to an “enclosed” customary marriage affidavit and certificate issued in Nigeria (no such document is provided with the written submissions). It is asserted that all necessary rights were performed in accordance with native law and custom.
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The written submissions advance further arguments in terms of the validity of the marriage according to Nigerian law, again referring to an affidavit and its contents, and recites various provisions of Nigerian law. Those further submissions then reproduce verbatim the original grounds upon which permission to appeal was sought.
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Returning to the oral submissions before me, it was contended that the certificate of the registration of the marriage in Nigeria was a document that the Home Office had in its possession. It would appear, although it was not clear, that it was being asserted that this was a document that the Home Office previously had had in its possession, some time prior to the application for a residence card, or if not, at least at the date of the decision in any event.
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It was submitted that if the FtJ had received the affidavit of marriage, the certificate of marriage would also have been received by him as it is on the back of the affidavit. It was contended that the solicitors for the appellant had asked for the return of the certificate, although no letter to that effect was able to be produced. In fact, it is not the case that the certificate of marriage was in the bundle produced before the FtJ.
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There was then an assertion, on the appellant’s instructions, to the effect that the Home Office bundle was apparently sent to the wrong address, again there being nothing to support that contention. It was submitted that the respondent’s conclusion that the marriage was not a genuine one was belied by the appellant’s witness statement.
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On behalf of the respondent, Mr Jarvis pointed out that the issue raised in the grounds of appeal was not about the validity of the marriage in Nigerian law but about the FtJ’s failure to assess the relationship as being one akin to marriage. The appellant had no right of appeal on that issue, following the decision in Sala.
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In any event, it is clear from the respondent’s decision that the appellant’s partner had played no part in the process leading up to the respondent’s assessment of the relationship, as set out in the decision letter. Furthermore, as is apparent from [13] of the FtJ’s decision the appellant’s partner did not attend the hearing. Although it was said that she was unwell, no medical evidence was provided. The evidence before the FtJ did not establish that this was a valid marriage, it was argued.
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It was submitted that now on behalf of the appellant it was sought to argue points not raised in the grounds, in terms of the validity of the marriage. Whilst it was conceded on behalf of the respondent that the FtJ had erred in law in terms of his application of the decision in Kareem that error of law was not material, it was submitted.
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In reply, Ms Nicholas suggested that although the respondent referred to the fact that there had been a non-attendance at a marriage interview, that was caused by the invitation to the interview not having been delivered. However, documents in that respect were not produced at the hearing before me. It was then conceded that the arguments on behalf of the appellant were constrained by the matters raised in the grounds of appeal.
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It was next asserted that in Awuku, the Secretary of State had “pledged” that any case which was refused...
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