Upper Tribunal (Immigration and asylum chamber), 2019-11-19, EA/02174/2017
| Jurisdiction | UK Non-devolved |
| Date | 19 November 2019 |
| Published date | 05 February 2020 |
| Hearing Date | 05 November 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | EA/02174/2017 |
Appeal Number: EA/02174/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/02174/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 5 November 2019 |
On 19 November 2019 |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
Mr Amarildo Isufaj
(ANONYMITY ORDER NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: In person
For the Respondent: Mr T. Melvin, Senior Home Office Presenting Officer
DECISION ON THE RE-HEARING OF THE APPEAL
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The appellant, Amarildo Isufaj, is a citizen of Albania, born on 21 February 1993. He appeals against a decision of the respondent dated 4 February 2017 to refuse to admit him to the United Kingdom as the family member of an EEA national, on the grounds that he was a party to a marriage of convenience (“the refusal notice”).
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In a reported decision promulgated on 12 August 2019, a panel of the Upper Tribunal (Mr Justice Lane, President, Upper Tribunal Judge Gill) found that a decision of the First-tier Tribunal promulgated on 22 November 2017 involved the making of an error of law, and set it aside, directing that the matter be reheard in the Upper Tribunal: see Isufaj (PTA decisions/reasons; EEA reg. 37 appeals) [2019] UKUT 283 (IAC). The First-tier Tribunal had dismissed the appellant’s appeal against the refusal notice as it was not satisfied that the appellant had demonstrated that the marriage was not one of convenience. That was an error because it reversed the burden of proof.
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Isufaj (PTA decisions/reasons; EEA reg. 37 appeals) was reported for reasons connected to the grant of permission to appeal from the First-tier Tribunal to the Upper Tribunal, and a jurisdictional issue relating to whether the appellant’s appeal against his refusal of admission could be continued while he was in the United Kingdom. It may be found in the Annex to this decision.
Factual background
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The appellant previously entered the United Kingdom clandestinely, and later claimed asylum after being arrested for suspected cannabis cultivation and the theft of a car. He was found to have in his possession a false Italian identity document, a Lloyds Bank Visa card and a Construction Industry Scheme card in the name of another person. He was never charged with any offences but was served with removal papers as a person without leave. His claim for asylum was refused and certified as “clearly unfounded”. The appellant was removed to Albania in early November 2016.
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On 28 December 2016, the appellant married Diana Miksa, a citizen of Lithuania born 26 May 1992 (“the sponsor”), in Lithuania. On 4 February 2017, they attempted to enter the United Kingdom at Luton Airport, in reliance on their ability to do so as the citizen of an EEA state and her husband respectively. They were interviewed, separately, by immigration officers, and entry to each was refused on the grounds that their marriage was one of convenience. The respondent was concerned that there were a number of discrepancies across the answers each provided to questions put to them. Coupled with the appellant’s poor immigration history, and his apparent motive to evade immigration control, the respondent concluded that the relationship between the two was one of convenience. They were both subsequently refused admission at Calais in June 2017, although those decisions are not under challenge in these proceedings. The sponsor has since been admitted to the United Kingdom to visit family here, travelling without the appellant, although she claims to have encountered difficulties at the border. The pair now live in Malta. The appellant works as a chef and the sponsor works as a sales assistant in a shopping centre.
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It is the appellant’s case that he has been in a genuine relationship with the sponsor since September 2012, when they met in Italy. The appellant was on holiday, and the sponsor had been working there. They began cohabiting five months later, in February 2013, in Rome. They lived there until August 2015. It was around this time that the appellant claims to have entered the United Kingdom clandestinely. He maintains that throughout this period, he was in a genuine relationship with the sponsor. The sponsor joined him here in December 2015, staying until around June or July 2016. The appellant was arrested by Immigration Enforcement officers on 21 July 2016 and was removed to Albania in November. He claims to have remained in Albania for around two weeks, before joining the sponsor in Lithuania. The couple married around a month later, on 28 December 2016.
Legal framework
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Although the refusal notice purported to refuse to admit the appellant under the Immigration (European Economic Area) Regulations 2006, those Regulations had been revoked three days earlier, and replaced by the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). As such, our analysis will be under the 2016 Regulations; nothing turns on the respondent’s incorrect citation of the 2006 Regulations.
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The 2016 Regulations confer a right of entry on EEA nationals and their non-EEA family members: see regulation 11. Admission can be refused to those who do not meet the definition of “family member” on the grounds that they are a party to a marriage of convenience, and also on specific grounds of public policy, public security or public health (regulation 23(1)), and on the basis that their admission would lead to the misuse of a right to reside (regulations 23(3) and 26).
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“Family member” is defined by regulation 7(1)(a) to include the spouse of an EEA national. A “spouse” does not include a party to a “marriage of convenience” (see regulation 2(1)). Regulation 2(1) also states:
“’marriage of convenience’ includes a marriage entered into for the purpose of using these Regulations, or any other right conferred by the EU Treaties, as a means to circumvent—
(a) immigration rules applying to non-EEA nationals (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or
(b) any other criteria that the party to the marriage of convenience would otherwise have to meet in order to enjoy a right to reside under these Regulations or the EU Treaties…”
The key issue to be identified when considering whether a marriage is one of convenience is the purpose for which the marriage was entered, at the time it was contracted. Was the sole purpose (as in the predominant purpose, rather than the unique or exclusive purpose: see Recital (28) to Directive 2004/38/EC, see also the European Commission’s Handbook on addressing the issues of alleged marriages of convenience, 24 September 2014, (COM (2014) 604 final), at page 9, and Sadovksa v Secretary of State for the Home Department [2017] UKSC 54 at [29], per Lady Hale PSC) in order to enjoy free movement rights to which the individual would not otherwise be entitled? The intention of the parties at the time of the marriage is relevant. Their knowledge about each other, or the extent to which the marriage is genuine and subsisting at the date of assessment are not determinative, although are likely to be relevant evidential factors to consider when looking back at the purposes for which the marriage was entered into.
Burden and standard of proof
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Where the respondent alleges that a marriage is one of convenience, the legal burden rests on her to demonstrate that the marriage falls into that category: see Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038(IAC), Agho v Secretary of State for the Home Department [2015] EWCA Civ 1198 at, e.g., [13], and Sadovska v Secretary of State for the Home Department at, e.g., [28]. The legal burden is not discharged merely by demonstrating there to be a “reasonable suspicion” that the marriage is not genuine, although if the respondent does provide such grounds, the appellant will be expected to respond to the allegation: see Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14 at [24] to [27] . In those circumstances, the initial evidential burden borne by the respondent shifts to the appellant to provide an “innocent explanation”. If the appellant provides an “innocent explanation”, the effect will be to return the evidential pendulum to the respondent to refute the claimed innocent explanation. Throughout, the legal burden rests on the Secretary of State; the basic rule is this: “he who asserts must prove” (Sadovska at [28], per Lady Hale). There is only one standard of proof, and that is the civil standard: the balance of probabilities.
Documentary evidence
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The appellant provided two bundles featuring his statement and that of the sponsor, statements from supporting witnesses, documents relating to the sponsor’s employment history in this country, their marriage certificate and their birth certificates. We also had the benefit of detailed written submissions prepared for the First-tier Tribunal hearing by Ms Masood, counsel previously instructed by the appellant.
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The respondent’s bundle...
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