Upper Tribunal (Immigration and asylum chamber), 2020-01-13, EA/01252/2019
| Jurisdiction | UK Non-devolved |
| Date | 13 January 2020 |
| Published date | 04 March 2020 |
| Hearing Date | 20 December 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | EA/01252/2019 |
Appeal Number: EA/01252/2019
Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/01252/2019
THE IMMIGRATION ACTS
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Heard at Manchester CJC |
Decision & Reasons Promulgated |
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On 20 December 2019 |
On 13 January 2020 |
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Before
Upper Tribunal Judge Pickup
Between
Muhammad Naveed Tariq
[Anonymity direction not made]
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the appellant: No attendance and no representation
For the respondent: Mr C Bates, Senior Home Office Presenting Officer
DECISION AND REASONS
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This is the appellant’s appeal against the decision of First-tier Tribunal Judge Herwald promulgated 5.8.19, dismissing his appeal against the decision of the Secretary of State, dated 25.2.19 to refuse his application made on 8.1.19 for an EEA Residence Card as confirmation of a right to reside in the UK as the family member of an EEA National exercising Treaty rights in the UK, namely Ms E Molnar, a Hungarian national.
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The application had been refused by the respondent because previous applications had been refused the marriage on the basis that the marriage with Ms Molnar was one of convenience and no further evidence had been adduced. Each refused application had been appealed to the First-tier Tribunal and the appeals dismissed, in 2016 (Judge Malik) and 2018 (Judge Alis), all on the same basis, that the marriage was one of convenience. Likewise, Judge Herwald dismissed the appeal, also concluding that it was one of convenience.
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First-tier Tribunal Judge Simpson granted permission to appeal on 28.10.19.
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There was no attendance by or on behalf of the appellant at the Upper Tribunal appeal hearing before me on 20.12.19. I was satisfied that notice of the hearing had been sent to the appellant at the only address held on file for him by first-class post on 15.11.19. There has been no subsequent correspondence and no explanation for his absence. Noting that the appellant also failed to attend the First-tier Tribunal appeal hearing, I was satisfied that it would be in the interests of justice to proceed with the appeal hearing in his absence, and that this would be consistent with the overriding objective of the Tribunal to deal with cases fairly and justly.
Error of Law
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I heard the submissions of Mr Bates and then reserved my decision, which I now give.
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For the reasons set out below, I found no material error of law in the decision of the First-tier Tribunal.
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The handwritten grounds argue that the First-tier Tribunal Judge erred in refusing to grant an adjournment and that the decision was based on the previous decision of the tribunal, most of which had been copied and pasted into Judge Herwald’s decision.
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Further typed grounds are attached to the Notice of Appeal. These accept that as this was a subsequent appeal the matter should not be relitigated unless there was new evidence that could lead to an alternative conclusion. It is submitted that there was new evidence in the form of the witness Mr Amir, which had been accepted. However, the grounds confuse the impugned decision with that of the previous First-tier Tribunal Judge, Judge Alis in 2018. It was Judge Alis and not Judge Herwald who heard evidence from Mr Amir, said to be a new witness in comparison to the first appeal heard by Judge Malik. No witness gave evidence before Judge Alis. The appeal to the Upper Tribunal is not an opportunity to challenge the decision of Judge Alis, which, pursuant to Devalseelan must be considered as determinative of the facts on the evidence before that tribunal and was the starting point for Judge Herwald’s consideration of the latest appeal. What has to be considered is whether Judge Herwald made an error of law in the making of his decision.
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The typed grounds also suggest that the judge erred in law when attaching no weight to the findings made by him, including in relation to Mr Amir and the sponsoring wife, together with photographs produced in evidence. However, once again these grounds confuse the decision of Judge Herwald with that of Judge Alis. The same point must be made in relation to the remaining typed grounds. It may be that the typed grounds were drafted in relation to the decision of Judge Alis from 2018 and these have been redeployed unaltered in the appellant’s appeal against the decision of Judge Herwald.
The Absence of the Appellant/Sponsor and the Adjournment Decision
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At the outset of the appeal before Judge Herwald, the appellant’s representative, Mr Khan, explained that the sponsor was not feeling well, and he might have to apply for an adjournment. The sponsor may have been at the Tribunal, but it was agreed that she should attend a NHS Walk-in Centre and the appeal hearing was stood down to await her return. At noon, the Tribunal was informed that the sponsor was still at the Walk-in Centre. This was still the position at 13:40 and Mr Khan confirmed that she still did not feel well and, therefore, he applied for an adjournment. This was opposed by the Home Office representative, who suggested that, given the previous findings of the Tribunal that the marriage was one of convenience, and reliance was made on Devaseelan, the matter could be decided on submissions.
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Before ruling on the adjournment application, Judge Herwald noted that that there had been a previous adjournment at the request of the appellant, again because the sponsor was said not to be available. Judge Herwald referred Mr Malik to the decision of the Upper Tribunal in IS (marriages of convenience) Serbia [2008] UKAIT 00031, which held that the relationship giving rise to any rights under EU law and the Regulations “is the marriage, formerly valid, and entered into at a specific time and place. It is the ceremony and the act which, in the circumstances that give rise to it, amount to or do not amount to a ‘marriage of convenience’.” The Tribunal rejected the concept that the development of a real relationship after the marriage was entered into could convert what was a marriage of convenience into one that was not. The judge also referred to VK (Kenya) [2004] UKAIT 00305, in which the Upper Tribunal held that the correct test to identify a marriage of convenience was not cohabitation or even intention to cohabit. The test was whether, in all the circumstances, the marriage had substance. Marriage of convenience is a phrase which describes the state of the marriage at its inception. A marriage which began as a marriage of substance could not, save in highly unusual circumstances, degenerate into a marriage of convenience. Further, the correct date for assessing the marriage was the date of the Secretary of State’s decision. In Rose [2016] EWCA Civ, also cited by Judge Herwald, it was held that the focus in relation to a marriage of convenience ought to be on the intention of the parties at the time the marriage was entered into, whereas the question of whether a marriage was subsisting looked at whether the marital relationship was a continuing one.
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It was in the light of those authorities that Judge Herwald considered at [9] of the decision that, whilst it would normally be unusual to refuse an adjournment request made because the appellant or a witness has fallen ill, the issue in the appeal was narrow and could only be whether the marriage was at its inception one of convenience. That issue had twice been determined against the appellant, in relation to which the previous Tribunal findings formed the starting point for any further consideration of that same issue. It is not clear that the appellant appreciated that fact. It follows that any further evidence on behalf of the appellant that bore on the continuing subsistence of the alleged relationship could only be of limited relevance as to whether or not the marriage when entered into was one of convenience. It is clear that the evidence relied on by the respondent set out in the refusal decision and including the previous marriage interview from 2014, was sufficient to raise a suspicion that the marriage was one of convenience, so that the evidential burden transferred to the appellant. In the absence of any evidence to the contrary, the respondent would succeed in discharging the legal burden of proof. As I observed above, the refusal decision noted that the appellant had adduced no further evidence when making this third application for an EEA Residence Card.
Assessment of the Impugned Decision in the Light of the Grounds
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As Mr Bates pointed out in his submissions, Judge Herwald was tasked with deciding the appeal in the light of two previous First-tier Tribunal appeal decisions, in respect of both of which, permission to appeal to the Upper Tribunal had been refused. Each of those two decisions found as a fact that at the point the marriage was entered into it was a marriage of convenience. That was the starting point for Judge Herwald. On the authorities cited by the judge, summarised above, no matter whether the relationship was now genuine or durable a marriage of convenience can never become a marriage qualifying the appellant to an...
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