Upper Tribunal (Immigration and asylum chamber), 2020-07-28, EA/00111/2019

CourtUpper Tribunal (Immigration and Asylum Chamber)
StatusUnreported
Appeal NumberEA/00111/2019
Publication Date11 Aug 2020

Appeal Number: EA/00111/2019


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: EA/00111/2019



THE IMMIGRATION ACTS



Heard remotely at Field House

Decision & Reasons Promulgated

On 1 July 2020 via Skype for Business

On 28 July 2020




Before


UPPER TRIBUNAL JUDGE STEPHEN SMITH



Between


KEVIN MARGJONI

(ANONYMITY DIRECTION NOT MADE)

Appellant

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Representation:

For the Appellant: Mr S. Mustafa, Counsel, instructed by Briton Solicitors

For the Respondent: Mr J. Anderson, Counsel, instructed by the Government Legal Department


This has been a remote hearing which has not been objected to by the parties. The form of hearing was V (all parties save for the judge participating remotely). A face to face hearing was not held because it was not practicable, and all issues could be determined on paper.


The documents that I was referred to are a letter from the Secretary of State dated 30 June 2020 applying to withdraw from the appeal, and a costs application from the appellant, which was a page long, the contents of which I have recorded. The order made is described at the end of these reasons.


DECISION AND REASONS (V)

  1. The full details of the decision under challenge and the procedural history to this matter are set out in my error of law decision, promulgated on 13 November 2019. That decision may be found in the Annex to this decision.

  2. In summary, this is a substantive appeal against a decision of the respondent dated 18 December 2018 to refuse to grant the appellant, a citizen of Albania, a permanent residence card in respect of his former marriage to an Italian citizen. The error of law decision is essential reading before reading the remainder of this disposal decision.

  3. By a letter dated 30 June 2020, the respondent applied, pursuant to rule 17(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008, to withdraw her case in this appeal, inviting me to allow the appellant’s appeal. The respondent stated that she had taken the decision to withdraw her case in light of the grounds of appeal, the evidence submitted, and “material changes since the date of the decision under appeal”. The letter conceded that the impugned decision of the respondent under consideration in the appeal featured two errors of law. The letter added that the appellant would be issued with a permanent residence card, provided he was able to provide the necessary supporting documents, or a further decision would be issued.

  4. The qualitative role of the Tribunal in considering whether to consent to withdrawals, pursuant to rule 17(2), is limited to ensuring that the withdrawing party understands the implications of withdrawal and has taken an informed decision: see Anwar (rule 17(1): withdrawal of appeal) [2019] UKUT 125 (IAC). Mr Anderson confirmed that the decision was taken by following consideration of the matter by the Secretary of State’s officials. The respondent is legally represented and has the resources and expertise to understand the implications of her decision. I consent to the withdrawal. I see no reason not to do so.

  5. In light of the respondent’s concession, I allow this appeal.


COSTS APPLICATION

  1. The appellant has applied for costs of £4,542, arising from what he contends to have been the respondent’s unreasonable conduct of the appeal.

  2. The power for the Upper Tribunal to make a costs award against a party may be found in section 29 of the Tribunals, Courts and Enforcement Act 2007, read with rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008. In particular, rule 10(3) provides, where relevant:

“…the Upper Tribunal may not make an order in respect of costs or expenses except –

[…]

(d) if the Upper Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings…”

  1. Mr Mustafa submits that, by conceding that the impugned decision featured an error of law, the respondent acted unreasonably by defending these proceedings.

  2. I reject that submission.

  3. In my error of law decision, I identified various issues that the appellant would have to address by way of further evidence at a resumed hearing, in order to determine the substantive issues under consideration in the appeal. At [65] to [67] of my error of law decision, I said:

[65] Drawing the above analysis together, it is clear that there are a range of factors which will need to be considered in order to determine whether the purported marriage celebrated by the appellant and the sponsor was valid.

[66] This matter will be relisted before the Upper Tribunal for a fact-finding hearing to consider the facts surrounding the marriage, in light of the considerations outlined in this decision.

[67] I permit the appellant to adduce such further evidence concerning the ceremony, his intentions and that of the sponsor, as necessary in order to enable sufficient findings of fact to be made in order to determine whether the marriage was sufficiently within the terms of the MA 1949 to benefit from the “knowingly or wilfully” caveat, and whether it may be valid on any other basis.”

  1. The appellant served a revised bundle of evidence, seeking to address the above points, on 19 June 2020. The bundle featured a witness statement from the appellant dated 14 June 2020.

  2. Under the circumstances, it was entirely reasonable for the respondent to maintain her opposition to the appeal until she had sight of the additional evidence.

  3. Although the respondent has now conceded that the original decision letter featured an error of law on two discreet bases, it is noteworthy that the appellant did not advance his appeal on those bases. An early issue in the case was whether the appellant’s marriage, which took place in the Albanian Embassy in London, was governed by Albanian law, or English law. Mr Mustafa pursued the rather fanciful submission that the marriage should be treated as though having taken place in Albania. He also contended that the publication of a collated list of approved premises for the purposes of the Marriage Act 1949 on www.gov.uk on 23 November 2012 somehow conferred on marriages at unapproved premises before that date, such as the appellant’s marriage ceremony at the Albanian Embassy, validity they would not otherwise enjoy, with no focus on the “knowingly and wilfully” matter identified at heart of my error of law decision. That too was a fanciful submission.

  4. It was not until my error of law decision identified defects in the respondent’s decision concerning the “knowingly and wilfully” requirement in section 49 of the Marriage Act 1949 that the appellant – eventually – provided evidence concerning his state of mind for the purposes of section 49, which has led the respondent to withdraw her case in these proceedings. This he did on 19 June 2020. By considering and responding to that evidence in advance of the hearing before me, the respondent was doing no more than could be expected of any responsible litigant, namely keeping her position under review.

  5. Accordingly, I do not consider that the respondent acted unreasonably in defending these proceedings. As such, the criteria for making a costs award in favour of the appellant are not met, and this application for costs against the respondent is dismissed.

  6. I make no order as to costs.


Notice of Decision

The appeal against the respondent’s decision of 18 December 2018 is allowed.

The appellant’s application for costs against the respondent is refused.

I make no fee award. Had the appellant collated the evidence he belatedly provided on 19 June 2020 at a much earlier point, the need for these proceedings to be brought could have been avoided altogether.

No anonymity direction is made.



Signed Stephen H Smith Date 15 July 2020


Upper Tribunal Judge Stephen Smith




Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: EA/00111/2019



THE IMMIGRATION ACTS



Heard at Field House

Decision & Reasons Promulgated

On 26 September 2019



…………………………………



Before


UPPER TRIBUNAL JUDGE STEPHEN SMITH


Between


KEVIN MARGJONI

(ANONYMITY DIRECTION NOT MADE)

Appellant

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Representation:

For the Appellant: Mr S. Mustafa, Counsel, instructed by Briton Solicitors

For the Respondent: Mr L. Tarlow, Senior Home Office Presenting Officer



DECISION AND REASONS ON ERROR OF LAW


  1. This case concerns (i) whether a marriage conducted in the premises of a diplomatic mission located in the United Kingdom according to the law of the sending State is valid under the law of England and Wales; and (ii) the application of the principle of the presumption of marriage. These points go to whether the appellant is entitled to a right to reside under the Immigration (European Economic Area) Regulations 2016...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT