Upper Tribunal (Immigration and asylum chamber), 2019-08-12, [2019] UKUT 283 (IAC) (Isufaj (PTA decisions/reasons; EEA reg. 37 appeals))

Upper Tribunal

(Immigration and Asylum Chamber)

Isufaj (PTA decisions/reasons; EEA reg. 37 appeals) [2019] UKUT 00283 (IAC)

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 17 May 2019 Further submissions
made on 31 May 2019	…………………………………

Before

THE HON. MR JUSTICE LANE, PRESIDENT

UPPER TRIBUNAL JUDGE GILL

Between

Amarildo isufaj

(ANONYMITY ORDER NOT MADE)

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: in person, accompanied by the sponsor

For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

(1) Judges deciding applications for permission to appeal should ensure that, as a general matter, there is no apparent contradiction between the decision on the application and what is said in the “reasons for decision” section of the document that records the decision and the reasons for it. As was said in Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC), a decision on a permission application must be capable of being understood by the Tribunal’s administrative staff, the parties and by the court or tribunal to which the appeal lies. In the event of such an apparent contradiction or other uncertainty, the parties can expect the Upper Tribunal to treat the decision as the crucial element.

(2) Although regulation 37(1) of the Immigration (European Economic Area) Regulations 2016 provides that a person may not appeal under regulation 36 whilst he or she is in the United Kingdom, where the decision in question falls within regulation 37(1)(a) to (g), once the appeal is instituted by a person who is then outside the United Kingdom, there is no statutory prohibition on the appeal continuing if the person concerned thereafter is physically present in the United Kingdom. It will, however, be for the Secretary of State to decide whether to give that person temporary admission for the purpose of attending an appeal hearing, since regulation 41 does not apply to such cases.

DECISION ON ERROR OF LAW

AND SETTING ASIDE OF THE DECISION OF THE FIRST-TIER TRIBUNAL

1. The appellant is a citizen of Albania, born in 1993, who having been refused asylum in the United Kingdom in 2016, was removed to Albania later that year.

2. The appellant attempted to enter the United Kingdom on 4 February 2017, in the company of his wife, the sponsor, who is a citizen of Lithuania. Both the appellant and his wife were refused admission on the basis that the Immigration Officer was satisfied that their marriage was a marriage of convenience and that refusal of entry was appropriate on the grounds of public policy and public security.

3. The notice of decision, given to the appellant, told him that he had a right of appeal under regulation 36 of the Immigration (European Economic Area) Regulations 2016 against the decision but that, pursuant to regulation 37(1)(a), he could exercise that right “only after you have left the United Kingdom”.

4. The appellant did so. His appeal was heard at Taylor House on 3 November 2017 by a First-tier Tribunal Judge who, in a decision promulgated on 22 November 2017, dismissed it. At the hearing, the judge heard oral evidence from the sponsor. The appellant remained outside the United Kingdom.

5. Ms Masood of Counsel drafted grounds of application for permission to appeal to the Upper Tribunal against the judge’s decision. Ground 1 contended that the judge had wrongly treated the appellant as bearing the burden of showing that his marriage to the sponsor was not one of convenience. It is trite law that, although there can be a shifting of the evidential burden, the legal burden lies throughout on the respondent to show that the marriage in question is a marriage of convenience (and, thus, not a relationship that affords a non-EU party to that marriage any relevant rights under EU law).

6. There was, plainly, great force in ground 1. As Ms Masood pointed out, at paragraph 52 of his decision, the judge said:-

“On the evidence before me the Appellant has fallen far short of showing that, on balance his marriage to the sponsor was genuine.”

7. That incorrect articulation of the burden of proof governed the way in which the judge approached the oral and documentary evidence. So far as the documentary evidence was concerned, the judge said:-

“49. There is no documentary evidence that the couple cohabited in Rome. Indeed, one of the striking things about this case is the lack of evidence about the relationship in general, including communications, photographs and the sorts of things one would expect to see where a relationship has apparently been ongoing for 4 or 5 years.”

8. In her grounds, Ms Masood pointed out that the materials before the judge included over 100 photographs of the couple taken in various locations at various times, including on their wedding day and with various family members, such as the sponsor’s son; and written evidence, such as booking documentation, showing that the sponsor had visited the appellant in Albania a number of times in 2017. The grounds submitted that none of that evidence was challenged by the respondent.

9. Unsurprisingly, First-tier Tribunal Judge Grimmett granted permission on Ms Masood’s grounds. Judge Grimmett’s decision, dated 26 April 2018, stated in terms “The application is granted”.

10. Paragraph 1 of Judge Grimmett’s “Reasons for decision”, however, noted that the application was fourteen days out of time and that there was no explanation for the delay. Judge Grimmett said that, as a result “I do not extend time”.

11. Paragraph 2 of the reasons went on to state that: “It is arguable that the Judge erred in requiring the appellant to show that there was a genuine marriage when the initial burden was on the respondent to show it was a marriage of convenience”.

12. When the appellant’s appeal came before Deputy Upper Tribunal Judge Renton at Field House on 2 July 2018, Ms Masood appeared on behalf of the appellant. Deputy Judge Renton took what he regarded as a jurisdictional point on the decision produced by Judge Grimmett. Having heard submissions from Ms Masood and Ms Pal, the Home Office Presenting Officer, Deputy Judge Renton found as follows:-

“4. My decision is that there is no valid appeal before me. Although Judge Grimmett eventually granted leave to appeal, the first decision was that the application for leave to appeal was made out of time and that there was no reason for her to extend time. This is the first decision in the grant and therefore in my view takes precedence. What the Judge subsequently decided in paragraph 2 of the grant is therefore irrelevant. I took the view that it was not for me to overturn in some way the decision of Judge Grimmett not to extend time. I decided not to consider a possible review under Rules 34 and 35 of the Tribunal Procedure Rules 2014 as there would be no compliance with Rule 35(3). I found it significant that Judge Grimmett had not decided to review the decision in the appeal under the provisions of Rule 34.”

13. Having reached that conclusion, Deputy Upper Tribunal Judge Renton held that there was “No valid appeal before against the decision of the First-tier Tribunal which is therefore not set aside”.

14. Ms Masood applied on behalf of the appellant for permission to appeal to the Court of Appeal against Deputy Judge Renton’s decision. In that application, she drew a distinction between what Judge Grimmett had said was her “decision” and what she had expressed as her “reasons for decision”.

15. Upon receiving the application for permission to appeal to the Court of Appeal, Upper Tribunal Judge Gill considered (as she was permitted to do by rule 45(1) of the Tribunal Procedure (Upper Tribunal) Rules 2018) whether to undertake a review of Deputy Upper Tribunal Judge Renton’s decision. Upper Tribunal Judge Gill decided to do so. She noted that the Upper Tribunal decision in Safi and Others (Permission to appeal decisions) [2018] UKUT 00388 (IAC) had been reported. The headnote of Safi and Others reads as follows:-

“(1) It is essential for a judge who is granting permission to appeal only on limited grounds to say so, in terms, in the section of the standard form document that contains the decision, as opposed to the reasons for the decision.

(2) It is likely to be only in very exceptional circumstances that the Upper Tribunal will be persuaded to entertain a submission that a decision which, on its face, grants permission to appeal without express limitation is to be construed as anything other than a...