Upper Tribunal (Immigration and asylum chamber), 2022-07-27, EA/04841/2019
| Appeal Number | EA/04841/2019 |
| Hearing Date | 26 April 2022 |
| Published date | 11 August 2022 |
| Date | 27 July 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2021-001545
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001545
EA/04841/2019
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 26 April 2022 |
On 27 July 2022 |
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Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MS DORA NKETIA
(ANONYMITY DIRECTION NOT MADE)
Respondent
Representation:
For the Appellant: Mr T. Melvin, Senior Home Office Presenting Officer
For the Respondent: In person, assisted by Thomas Yawson (the sponsor)
DECISION AND REASONS
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This case concerns the approach to be taken under the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) to a marriage of convenience which later evolves into a genuine relationship. This judgment is structured as follows. First, I summarise the procedural and factual background, including the decision of the First-tier Tribunal. Secondly, I will summarise the grounds of appeal and the submissions. Thirdly, I will outline the essential legal framework. Fourthly, I will discuss the grounds of appeal in light of the submissions and the law. As will be seen, I conclude that the decision of the judge did involve the making of an error of law. In the final part of my decision, therefore, I remake the appeal of the First-tier Tribunal by dismissing the appeal.
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The Secretary of State appeals against the decision of First-tier Tribunal Judge Brannan (“the judge”) promulgated 28 September 2021 allowing an appeal by the appellant, a citizen of Ghana born on 27 August 1974, against a decision of the Secretary of State dated 29 August 2019 to refuse her application for a residence card as the family member of an EU citizen, Thomas Yawson, a citizen of Belgium. For ease of reference, I will use the term “the appellant” to refer to the appellant before the First-tier Tribunal, and I shall describe the respondent before the First-tier Tribunal simply as the “Secretary of State”. I will refer to Mr Yawson as “the sponsor”.
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Although the UK has now left the EU and the implementation period came to an end at 11PM on 31 December 2020, this appeal was commenced before then. Pursuant to paragraph 5(1)(b) of Schedule 3 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020, the 2016 Regulations continue to apply to these proceedings. For the purposes of the coherence of this decision, where relevant I will proceed as though the United Kingdom were still a Member State of the EU, as was the functional position during the implementation period under the Withdrawal Agreement (Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, October 2019) at the time of the Secretary of State’s decision and the institution of this appeal.
The hearing in the Upper Tribunal
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The appellant appeared before me as a litigant in person, supported by the sponsor, who addressed the tribunal in English. The appellant’s first language is not English, but both she and the sponsor assured me that they were content for the hearing to continue without an adjournment to appoint a Twi interpreter. They said they could no longer afford legal representation. I offered to adjourn the proceedings to obtain an interpreter, but the appellant and the sponsor asked me not to. I concluded that the sponsor would, with my assistance with the formulation of the issues, be able fully to participate in the hearing, and that it would be fair for the hearing to proceed. The appellant did not want an adjournment, and through the sponsor was able to participate fully in the proceedings. I therefore declined to adjourn the proceedings of my own motion to arrange for a Twi interpreter for the appellant. I was satisfied that with the assistance of the sponsor the appellant was able to participate fully in the proceedings and that an adjournment would not be necessary or in the interests of justice. An adjournment would have led to the injection of delay into the proceedings, for no discernible gain, given there was no basis to conclude that the appellant would be able to secure legal representation on a future occasion, nor that a court-appointed interpreter would be able to facilitate the appellant’s participation to a greater extent than the sponsor.
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The appellant and sponsor had not been able to secure childcare, so their child, J, was in attendance also.
Factual background
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On 29 April 2019, the appellant applied for a residence card as the family member of an EEA national in respect of her marriage to the sponsor. She claimed that they were married by proxy in Ghana on 4 August 2018 and that they began cohabiting in September 2018. In response to the application, the Secretary of State invited both the appellant and the sponsor to separate marriage interviews, which they attended. The Secretary of State refused the appellant’s application on the basis that she had reasonable grounds to suspect that her marriage to the sponsor was one of convenience. The appellant’s appeal was heard by the judge on 30 June 2021 (not 2020, as stated on the first page of judge’s decision) and 13 September 2021. In a decision promulgated on 28 September 2021, the judge allowed the appeal. The Secretary of State appeals to this tribunal with the permission of First-tier Tribunal Judge Cox on grounds to which I shall return.
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The appellant has a poor immigration history. Only a brief summary is necessary here. She entered the United Kingdom with entry clearance as a visitor on 6 April 2011 valid for six months, falsely (on the basis of her own admission before the judge) claiming to be married to someone to whom she was not married, in order, again on her own case, to secure a visa. In 2017, she was encountered working illegally and was detained. She made a human rights claim on the basis of her relationship with a British citizen, a relationship that she accepted in evidence before the judge was simply cover for her sexuality. The claim was refused and certified as clearly unfounded. On 26 January 2016, she claimed asylum, claiming to be a lesbian in a relationship with a woman called Irene. Her claim was refused, and she appealed. By a decision dated 3 October 2018, First-tier Tribunal Judge Lawrence dismissed her appeal, finding at [36]:
“… on the evidence before me I find the appellant is a person without a jot of credit.”
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Both the appellant and the sponsor gave evidence before the judge at the hearing on 30 June, although only the appellant attended the resumed hearing before the First-tier Tribunal on 13 September.
The decision of the First-tier Tribunal
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The judge began by setting out the extensive procedural background to the decision, including the Secretary of State’s unsuccessful adjournment application before him on 30 June 2021. It turns out that the judge had to resume the hearing on another day in any event, having sat until 18.30. Further matters occurred to the judge after that hearing, so he reconvened to hear further evidence, on 13 September 2021.
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The judge analysed the law from [51] to [75]. As I will return to the judge’s reasoning below, a summary will be sufficient for present purposes. The judge concluded that whether a marriage of convenience which evolves into a genuine relationship should continue to be treated as a marriage of convenience was a question of proportionality under EU law. He found that the 2016 Regulations did not make provision for that question to be addressed in an assessment of a marriage of convenience, but that, given the need to read the Regulations consistently with EU law, it was nevertheless a relevant factor. The effect of that, he concluded at [69], was that it was possible for a marriage of convenience to cease to be treated as such, where it would be disproportionate to do so.
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In the alternative, at [70] and following, the judge found that such a relationship would be a “durable partnership” under regulation 8(5) of the Regulations. Neither party supported that construction, he noted.
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Against the background of those legal conclusions, the judge reached extensive findings of fact at [76] onwards. The judge accepted the Secretary of State’s case that the appellant and the sponsor were in a marriage of convenience at the time their marriage was contracted, but accepted that by the time they were invited to their marriage interviews, they were in a genuine relationship. Their relationship was still genuine by the time of the hearings before him. The judge accepted that J was the son of the appellant and the sponsor.
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The judge’s global conclusions begin at [135] on page 27. He listed a series of proportionality-based considerations, including the best interests of J, which led him to conclude that the appellant should be treated as the sponsor’s spouse for the purposes of the Regulations, notwithstanding the circumstances in which the marriage was contracted. In the...
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