Upper Tribunal (Immigration and asylum chamber), 2022-09-28, IA/03299/2021
| Appeal Number | IA/03299/2021 |
| Hearing Date | 17 May 2022 |
| Published date | 19 October 2022 |
| Date | 28 September 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-000156
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2022-000156
IA/03299/2021
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 17 May 2022 |
On 28 September 2022 |
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Before
UPPER TRIBUNAL JUDGE RIMINGTON
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
RAMADAN MAHER HAFEZ MOHAMED ELAIS
(ANONYMITY DIRECTION not made)
Respondent
Representation:
For the Appellant: Ms S. Cunha, Senior Home Office Presenting Officer
For the Respondent: Mr P. Richardson, Counsel, instructed by Gulbenkian Andonian Solicitors
DECISION AND REASONS
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This appeal concerns whether the hearing before the First-tier Tribunal was unfair and, consequently, the approach to be adopted when considering grounds of appeal making such allegations.
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This is the appeal of the Secretary of State against a decision of First-tier Tribunal Judge Knight (“the judge”) dated 21 January 2022 allowing an appeal by the appellant against a decision of the Secretary of State dated 24 December 2020 to refuse his application for a residence card as the durable partner of an EEA national, as defined by regulation 8(5) of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). For convenience we will refer to the appellant before the First-tier Tribunal as “the appellant” in these proceedings.
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Allegations of the sort advanced by the Secretary of State in these proceedings will always be sensitive, regardless of the party raising them. The grounds of appeal require this tribunal to proceed with the utmost care. We have had the benefit of a full transcript and recording of the hearing before the First-tier Tribunal and witness statements from the advocates involved, to which we shall turn in due course.
FACTUAL BACKGROUND
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The appellant is a citizen of Egypt born on 4 April 1990. He entered the UK clandestinely on 27 September 2016 under a different name. He claimed asylum but the claim was treated as withdrawn. On 23 November 2020, he applied for a residence card as the durable partner of Camelia Gradila (“the sponsor”), a citizen of Romania. The application said that their relationship began in September 2019, that they married in an Islamic ceremony in November, and began cohabiting in December.
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In the refusal decision, the Secretary of State said that she was not satisfied that the appellant and the sponsor were in a durable relationship. The evidence of their cohabitation was “very recent”. There was no evidence of joint finances, commitments or responsibilities. The photographs they had submitted did not take matters any further. The Islamic marriage certificate could not be used as evidence of their relationship. The sponsor was said to have assisted her former husband to make an application for a permanent residence card, which had been issued to the address that she claimed to cohabit with the appellant, in May 2019.
The appeal before the First-tier Tribunal
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The appeal was heard on 18 January 2022 at Taylor House. The appellant was represented by Ms S. Saifolahi, of counsel. The Secretary of State was represented by Mr F. Fazli, also of counsel. The appellant participated in the hearing through an Arabic interpreter, and the sponsor through a Romanian interpreter. The hearing was conducted remotely, as was then necessary to guard against the spread of Covid-19. Those conditions clearly required a degree of procedural choreography on the part of the judge, which he approached with evident care.
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On 4 May 2021, the appellant and sponsor had married in a civil ceremony, for which they had been waiting for permission for some time. By the time of the hearing before the First-tier Tribunal, the appellant and sponsor appeared before the judge as husband and wife. The impact of the marriage between the appellant and the sponsor was the subject of lengthy discussion at the outset of the hearing. The parties advanced competing submissions as to whether the marriage was capable of being regarded as a “new matter”, and thereby potentially falling within the jurisdiction of the tribunal, subject to the consent of the Secretary of State, or whether it was simply (at its highest) additional evidence of the durability of the relationship between the appellant and the sponsor. Ms Saifolahi adopted the former position; Mr Fazli, the latter. The judge ruled in favour of the Secretary of State. There has been no challenge to that approach, but in light of the discussion at the hearing, it is necessary to outline the discussion in more depth.
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The context for the ruling is section 85 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), as applied to appeals under the 2016 Regulations by Schedule 2(1). Section 85 provides that the tribunal may consider any matter which it thinks is relevant to the substance of the decision under appeal, including a matter arising after the date of the decision. But under section 85(5), the tribunal must not consider a “new matter” unless the Secretary of State has given the tribunal consent to do so. A “new matter” must constitute a ground of appeal specified in section 84 of the 2002 Act or an “EU ground of appeal” under the 2016 Regulations, the definition of which we set out below.
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The appellant’s position was that his civil marriage was a “new matter” which, subject to the Secretary of State providing her consent, could have been considered by the tribunal. Family members by marriage enjoyed more preferential rights than durable partners under the 2016 Regulations, which is no doubt why the appellant sought to rely on it in the appeal.
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The discussion at the hearing concerning the new matter issue was complex and wide-ranging. The original application to the Secretary of State, and the Secretary of State’s decision, were before the “implementation period” under the EU withdrawal agreement came to an end on 31 December 2020 at 11.00PM. By contrast, the marriage took place on 4 May 2021, once the UK’s withdrawal from the European Union had completed. The appeal had been pending since before the implementation period came to an end, yet the hearing (and, of course, the marriage) took place after that date. The discussion before the judge encompassed the EU Settlement Scheme, the preserved rights of appeal, and the available grounds of appeal. Ms Saifolahi alluded to correspondence, which we have not seen but of which the judge appeared to be aware, between the Secretary of State and an immigration practitioners’ association concerning durable partners who were unable to marry before the end of the Implementation Period.
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The judge gave a ruling on the new matter issue at the hearing, holding that the marriage was only relevant insofar as it was evidence of the appellant and sponsor being in a durable relationship at the relevant times. He summarised his reasons at [44] and [45] of the decision.
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In the course of legal argument on the new matter issue and in the course of the ruling itself, but before hearing any evidence, the judge made a number of observations about the potential impact of the marriage, which the Secretary of State submits demonstrate that he approached the appeal with a closed mind. We have had the benefit of a full transcript of the proceedings. For present purposes, we highlight the following remarks, to which we have added emphasis:
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In response to Ms Saifolahi’s submissions that the marriage was capable of being a “new matter”, the judge said, at page 8 of the transcript:
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“I entirely see how it’s very compelling evidence that they were durable partners.”
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Following Ms Saifolahi’s reference to the matters apparently raised in the correspondence between the immigration practitioners’ association and the Secretary of State:
“… the marriage is, is compelling evidence of the durable partnership…”
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In the course of his ruling on the new matter issue the judge said:
“it seems to me that the marriage is extremely compelling evidence that there was a durable partnership at the relevant time…”
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Following the judge’s ruling, Mr Fazli summarised the respondent’s position in the appeal in the following terms:
“… the principal issue that the respondent takes with the appellant’s application is a lack of evidence that they were durable partners at the time of the application…”
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Against that background, the hearing progressed to evidence. The appellant adopted his witness statement and was cross-examined by Mr Fazli. The cross-examination covered the circumstances in which the appellant and sponsor met, when cohabitation commenced, and the timing of their Islamic marriage (nikah).
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We have included a transcript of the relevant exchanges of the appellant’s cross-examination in the Annex. In summary, the judge intervened on a number of occasions during Mr Fazli’s cross-examination of the appellant. When the appellant was challenged by Mr Fazli as to the timing of his claimed cohabitation with the sponsor, the judge interjected to say that there were two...
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