Upper Tribunal (Immigration and asylum chamber), 2020-11-17, EA/04896/2019
| Jurisdiction | UK Non-devolved |
| Date | 17 November 2020 |
| Published date | 01 December 2020 |
| Hearing Date | 05 November 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | EA/04896/2019 |
EA/04896/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/04896/2019
THE IMMIGRATION ACTS
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Heard at Cardiff Civil Justice Centre Remotely by Skype for Business |
Decision & Reasons Promulgated |
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On 5 November 2020 |
On 17 November 2020 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
Hamza Shaukat
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Chohan, instructed by Albus Law Solicitors
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
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The appellant is a citizen of Pakistan who was born on 29 December 1988.
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On 5 July 2011, the appellant married an EU national, Linda Dimanta, who is a Latvian citizen. On 3 July 2012, the appellant was granted a residence card as a family member (a spouse) of an EU national exercising treaty rights in the UK.
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On 13 December 2017, the appellant made an application for a permanent residence card, based upon five years’ continuous residence in the UK in accordance with EU law as the spouse of an EU national exercising treaty rights. That application was refused by the Secretary of State on 22 March 2018 on the basis that the appellant had failed to provide a valid passport or ID card as confirmation of his spouse’s identity. Following a judicial review claim, which was withdrawn following a consent order dated 1 July 2019, the Secretary of State reconsidered the appellant’s application for a permanent residence card.
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On 23 August 2019, the Secretary of State refused the appellant’s application under reg 15 of the Immigration (EEA) Regulations 2016 (SI 2016/1052 as amended) (the “EEA Regulations”). The Secretary of State concluded that the appellant’s marriage to Linda Dimanta was a “marriage of convenience” and, as a result, it was not established that he was a “spouse”, and thus a “family member”, of an EEA national as defined in reg 7 read with reg 2(1) of the EEA Regulations.
The Appeal
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The appellant appealed to the First-tier Tribunal. The appeal was heard by Judge N M K Lawrence on 12 November 2019. Having determined that the appellant had a right of appeal, and that is not now in issue, the judge went on to dismiss the appellant’s appeal on the basis that the judge was also satisfied that the appellant was a party to a “marriage of convenience” and so it was not established that he was a “family member” of an EU national exercising treaty rights and could not establish the five years’ continuous residence in accordance with the EEA Regulations in order to establish a permanent right of residence.
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The appellant sought permission to appeal on two grounds. First, the appellant contended that the judge had wrongly placed the burden of establishing that his marriage was, in effect, not a “marriage of convenience” upon the appellant. Secondly, the respondent had not provided the appellant with a copy of his ’marriage interview’ which was unfair as the appellant had had no opportunity to examine the evidence in advance of the hearing.
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On 20 April 2020, the First-tier Tribunal (Judge E M Simpson) granted the appellant permission to appeal on both grounds.
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As a result of the COVID-19 crisis, on 1 July 2020, the Upper Tribunal (UTJ Bruce) issued directions expressing the provisional view that the issues of whether the First-tier Tribunal had erred in law and, if so, whether the decision should be set aside should be determined without a hearing. Both parties were invited to make submissions both on the merits of the appeal and whether or not a hearing was required.
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On 20 July 2020, the Secretary of State filed submissions in response seeking to uphold the judge’s decision on the basis that the judge had correctly placed the burden of proof upon the Secretary of State to establish that the appellant’s relationship was a “marriage of convenience” and on the basis that there had been no procedural unfairness. The Secretary of State indicated in a covering email that she had no objection to the error of law hearing being conducted remotely.
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Further directions were issued by the Upper Tribunal (UTJ Owens) on 29 September 2020 directing that the error of law hearing be listed for a remote hearing. It would appear that the appellant’s representatives had made no submissions in response to UTJ Bruce’s earlier directions.
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As a consequence the appeal was listed before me on 5 November 2020 at the Cardiff Civil Justice Centre. I was present in court whilst Mr Chohan, who represented the appellant, and Ms Rushforth, who represented the respondent, joined the hearing via Skype for Business.
The Submissions
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On behalf of the appellant, Mr Chohan relied upon the grounds of appeal.
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First, he submitted that the judge had wrongly placed the burden of proof in respect of whether the appellant’s marriage was a “marriage of convenience” upon the appellant. He submitted that at para 10 of his determination, Judge Lawrence had stated that the legal burden of proof “from start to finish” was upon the appellant. Mr Chohan acknowledged that in para 11 the judge had directed himself in accordance with the leading case of Sadovska & Anor v SSHD [2017] UKSC 54 and the Court of Appeal’s decision in Rosa v SSHD [2016] EWCA Civ 14 that the legal burden was upon the Secretary of State and that the evidential burden was initially upon the Secretary of State but shifted to the appellant if there was evidence capable of reaching the conclusion that the marriage was one of convenience. However, Mr Chohan submitted that the judge had not, in fact, applied that approach. He referred me to para 21 of the judge’s determination where, having set out some of the evidence concerning the circumstances of the appellant and his spouse, the judge said that the “appellant bears the legal burden of proof and the standard is on a balance of probabilities”. That was a legal error, Mr Chohan submitted.
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Secondly, Mr Chohan submitted that the proceedings were unfair because the appellant had not been provided with a record of the marriage interview upon which the Secretary of State, both in her decision letter and before the judge, relied. He also pointed out that the respondent had not provided the judge with the documents which had been submitted with the appellant’s application and which were relevant to the issue of the nature of the appellant’s marriage which was for the judge to determine. He submitted that the judge had been wrong to state, in para 16, that there had not been “any evidence of [] cohabitation; any photographs; tenancy agreements and the like.” Mr Chohan submitted that relevant documents had been submitted with the application and, although these documents were not now available in these proceedings, Mr Chohan referred me to the marriage certificate of the appellant and sponsor (at page 35 of the appellant’s bundle) which showed an address for the sponsor in London (“61 Pentire Road, London E17 4BY”) which was the address at which the appellant claimed he lived with the sponsor after their marriage. Mr Chohan submitted that the judge needed to see the full interview in order to assess the matters relied upon by the respondent, both in the decision letter and at the hearing, in context.
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On behalf of the Secretary of State, Ms Rushforth accepted that the judge had been wrong in para 10 to state that the legal burden of proof was “from start to finish” upon the appellant. However, she relied upon para 11 where the judge had correctly directed himself in accordance with Sadovska and Rosa. She submitted that, in considering the evidence in the paragraphs up to para 21, the judge correctly concluded that the Secretary of State met the evidential burden and that from para 21 onwards the judge had found that the appellant had not rebutted that evidential burden and, as a result, the Secretary of State had established that the relationship was a “marriage of convenience”.
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Secondly, as regards the appellant’s marriage interview, Ms Rushforth accepted, in response to a question from me, that it was usual to disclose this interview. She submitted, however, that in this appeal the judge had refused the Presenting Officer’s request to rely upon the transcript and had restricted the Presenting Officer to cross-examining the appellant on the issues that were raised in the refusal decision. She pointed out that, at para 15, the judge noted that the appellant, in his evidence, accepted what was said in the decision letter based upon the marriage interview. Ms Rushforth was unable to ’shed any light’ on the issue of why the appellant’s documents, submitted with the application, were not in the respondent’s bundle. She pointed out, however, that these documents were the appellant’s and he could have provided copies of them himself.
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Ms Rushforth accepted that rule 21(1)(c) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014/2604) required the Secretary of State to provide the Tribunal with “any record of an interview with the appellant in relation to the decision being...
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