Upper Tribunal (Immigration and asylum chamber), 2021-12-06, [2022] UKUT 00018 (IAC) (Saeed (Deception, knowledge, marriage of convenience))
| Jurisdiction | UK Non-devolved |
| Judge | UPPER TRIBUNAL JUDGE McWILLIAM |
| Status | Reported |
| Date | 06 December 2021 |
| Published date | 14 January 2022 |
| Hearing Date | 11 November 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Deception, knowledge, marriage of convenience |
| Appeal Number | [2022] UKUT 00018 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Saeed (Deception – knowledge – marriage of convenience) [2022] UKUT 00018 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 11 November 2021 |
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………………………………… |
Before
UPPER TRIBUNAL JUDGE McWILLIAM
Between
Mr Mazhar Hassan Saeed
(ANONYMITY DIRECTION not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr R De Mello, Counsel, instructed by Law Fare Solicitors
For the Respondent: Ms A Everett, Home Office Presenting Officer
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There are different tests to determine whether a marriage is a “sham” or whether a marriage is one of convenience under EU law, in this case the 2016 Regs. The former is defined in s.24 (5) of the 1999 Act (see Molina) and requires the absence of a genuine relationship. In respect of the latter, the predominant purpose test applies (see Sadovksa).
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The terms “sham marriage” and “marriage of convenience” are not mutually exclusive. The absence of a genuine relationship at the time of the marriage being entered into would render the marriage one of convenience (and a “sham”); however, if there is a genuine relationship at the time of the marriage, while it could not be categorised as a “sham” marriage, it may still amount to a marriage of convenience (depending on the predominant purpose).
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When deciding whether a marriage is one of convenience under the 2016 Regs, a Tribunal should make clear findings about whether it is accepted that there was a genuine relationship between the parties to the marriage at the material time (the time of the marriage).
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There is deception deployed by a person who knowingly enters into a marriage of convenience with another in the absence of a genuine relationship. In the absence of a genuine relationship at the relevant time, a Tribunal may be entitled to infer that deception was exercised by the Appellant or the Sponsor or both. Depending on the facts there may be deception in a marriage of convenience.
DECISION AND REASONS
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The Appellant is a citizen of Pakistan. His date of birth is 25 December 1987.
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The Appellant was granted permission by Deputy Upper Tribunal Judge Saffer on 19 July 2021 to appeal against the decision of the First-tier Tribunal (Judge R Hussain) to dismiss his appeal against the Secretary of State’s decision (on 10 March 2020) to refuse his application for indefinite leave to remain (ILR).
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The Appellant came to the UK in 2008 as a student. He was granted periods of leave as a student to 30 December 2015. On 18 September 2014 the SSHD made a decision (the “s.10 decision”) under s.10 of Immigration and Asylum Act 1999 (the “1999 Act”) as a result of him having submitted a TOEIC certificate in support of an application for leave which according to the Respondent was fraudulent. After this date the Appellant made five applications for a residence card pursuant to the Immigration (European Economic Area) Regulations 2016 (the “2016 Regs”) all of which were rejected or refused by the SSHD.
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The Appellant issued judicial review proceedings in respect of the s.10 decision on 15 October 2014. Permission was refused on the papers and following oral renewal. A further application was made by the Appellant to the Court of Appeal. While this application was pending, on 26 October 2016, the Appellant applied for an EEA residence card on the basis of his relationship with a Lithuanian national exercising Treaty rights, Ms Palabinskaite ( “the Sponsor”). This application was refused by the SSHD on 8 May 2016. The SSHD relied on the Appellant having used deception in relation to the fraudulent TOEIC certificate. The Appellant appealed against the decision of 8 May. He and the Sponsor had married on 26 August 2017. His appeal was dismissed under the 2016 Regs by the First-tier Tribunal (Judge Twydell) in a decision dated 14 February 2019. Judge Twydell found that the Appellant and the Sponsor’s marriage was a marriage of convenience. However, Judge Twydell found that the Appellant had not submitted a fraudulent TOEIC certificate in support of a previous application for leave.
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In respect of the judicial review, on 4 February 2020 the Court of Appeal approved a consent order that had been agreed by the Appellant and the SSHD, following Judge Twydell’s decision that the Appellant had not submitted a fraudulent TOEIC. The SSHD agreed to, amongst other things, rescind the s.10 decision and to reinstate the Appellant’s leave to allow him to make a further application for leave to remain (LTR).
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The Appellant made an application for ILR. The SSHD refused the application on 10 March 2020 on the basis that Judge Twydell found that the Appellant had entered into a marriage of convenience and the SSHD’s view is that the Appellant had made a false representation, therefore his application was refused pursuant to paras. 276B (ii) and (iii), 322(2), 322(5) and 322(13) of the Immigration Rules (IR). The decision maker stated that the Appellant;
“failed to establish that your relationship with Ms Palabinskaite was genuine and your claim for a EEA Residence Card was refused by the Home Office and your appeal was dismissed by an Immigration Judge at the First Tier. Your behaviour whilst resident in the United Kingdom does not reflect well on you …”.
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It is the view of the Secretary of State that the Appellant “made false representations in order to obtain documents to remain in the United Kingdom.” The false representations were those relating to the Appellant’s relationship with the Sponsor.
The decision of Judge Hussain
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Before Judge Hussain, the SSHD no longer relied on para. 322 (13) of the IR. Furthermore, it was accepted that the Appellant had 10 years lawful continuous residence.
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The Appellant’s position was that the SSHD was prevented from relying on Judge Twydell’s decision following the consent order. The judge rejected the Appellant’s representative’s submission, for the following reasons:-
“19. I do not accept the Appellant’s submissions on this point. The consent order dated 4.2.2020 related specifically to the Appellant’s application for JR (which after being initially refused was appealed against) which sought to quash the Respondent’s decision dated 18.9.2014 which had invalidated his earlier leave. In fact the terms upon which the Respondent was seeking to settle the Appellant’s JR review application are set out at paragraph 11 of the statement of reasons which states:
‘11. Since the FtT decision cleared the Appellant of TOEIC deception on appeal, the Respondent has agreed to take reasonable steps to put the Appellant into the position he would have been in, had that allegation and the Section 10 decision not been made. In the absence of some new factor justifying a different course, that will consist of:
a) the Respondent rescinding the Section 10 decision that is the subject of this judicial review challenge;
b) the Respondent treating the Appellant as though he had continuous LTR since 18 September 2014 (and any earlier period as may be established);
c) the Respondent granting the Appellant a reasonable opportunity (being not less than 60 days) to submit an application for further LTR;
d) the Respondent waiving any fee or charge, including any health surcharge, that might be payable for making such an application’.
20. There is no mention either in the statement of reasons as above or in the consent order dated 4.2.2020 of the findings of the Appellant having entered into a marriage of convenience. The only reference to those proceedings is stated at paragraph 7 of the statement of reasons. This merely acknowledges the context within which the relevant findings favourable to the Appellant’s JR application and the proposed concession as set out in paragraph 11. The Respondent does however note that the Appellant was no longer seeking permission to appeal the decision of FtTJ Twydell (namely the adverse decision and findings relating to the Appellant having entered into a marriage of convenience).
21. For the above reasons I do not accept that the Respondent is prevented from relying upon the finding made by FtTJ Twydell that the Appellant had entered into a marriage of convenience which meant that he made false representations in relation to his application for a residence card. No (sic) is there any unfairness to the Appellant by the Respondent doing so.”
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The judge noted that the Appellant did not challenge the finding that he had entered into a marriage of convenience. At [para. 23] the judge found that;-
“…In making and pursuing that application, he was aware that his marriage/relationship with Miss Palabinskaite was not genuine. This was dishonest and amounted to sufficiently reprehensible conduct that makes it undesirable for the Appellant to be granted leave to remain in the UK. There is nothing in the Appellant’s conduct in relation to pursuing the residence card that could suggest it was a genuine error or an innocent mistake. Indeed this was one of many applications he had made for a residence card. I do not...
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