Upper Tribunal (Immigration and asylum chamber), 2022-04-27, EA/03750/2019
| Appeal Number | EA/03750/2019 |
| Hearing Date | 10 February 2022 |
| Published date | 12 May 2022 |
| Date | 27 April 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: EA/03750/2019
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Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: EA/03750/2019 |
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 10 February 2022 |
On 27 April 2022 |
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Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
refail hajdari
(ANONYMITY DIRECTION not made)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr L Youssefian, instructed by Queens Court Law
For the Respondent: Mr T Melvin, Senior Presenting Officer
DECISION AND REASONS
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The appellant is an Albanian national who was born on 21 January 1987. He appeals, with permission granted by the First-tier Tribunal (“FtT”) against FtT Judge Sharma’s decision to dismiss his appeal against the respondent’s refusal of his application for an EEA residence card.
Background
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The appellant states that he arrived in the United Kingdom clandestinely in December 2015. He made no application to regularise his position until 8 April 2019, when he applied for a residence card as the spouse of an EEA national. The appellant and his then advisers completed the 100-page EEA (FM) application form in order to make that application. He gave his name, date of birth and address. He stated that he was married to a Romanian national named Ancuta Kasandra Dinca who was born on 4 November 1996. They had met in early 2018 and a relationship had developed in March that year. They had started living together in August 2018. They had no children together, but she had a child who lived with her mother in Romania. They had married in Birmingham on 29 March 2019She was working at a car wash in Leicester. Copies of identity documents and evidence of employment was provided with the application.
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The appellant and his wife underwent interviews with an official in Liverpool on 1 July 2019. The appellant answered 482 questions. Ms Dinca answered 317 questions.
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On 19 July 2019, the respondent issued a decision on the appellant’s application for a residence card. She stated that she was satisfied, as a result of the answers given at interview, that the marriage was one of convenience. The application was therefore refused because the definition of a spouse in the Immigration (EEA) Regulations 2016 did not include a party to a marriage of convenience.
The Proceedings on Appeal
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The appellant appealed to the FtT. His appeal was heard and dismissed by Judge Obhi. That decision was the subject of an appeal to the Upper Tribunal. That appeal was allowed by Judge Mandalia in May 2021. Judge Mandalia directed that there should be a de novo hearing in the FtT before a judge other than Judge Obhi.
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So it was that the appeal came before FtT Judge Sharma (as he then was) on 19 July 2021. The appellant was represented by counsel (not Mr Youssefian), the respondent by a Presenting Officer (not Mr Melvin). The judge received extensive documentary evidence. He heard oral evidence from the appellant, the sponsor, the sponsor’s sister and two friends of the couple. He heard submissions from the advocates before reserving his decision.
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In his reserved decision, the judge found that ‘the parties’ intention at the time of the marriage was to gain an immigration advantage and that it is not a genuine marriage’: [44]. That conclusion came at the end of a decision in which the judge had set out the history of the matter: [1]-[5]; detailed the evidence given at the hearing: [6]-20]; summarised the submissions made by the advocates: [21]-[29]; directed himself as to the law: [30]-[34]; and explained the reasons which led him to the ultimate conclusion that the marriage was one of convenience: [35]-[44]. In order to set the grounds of appeal in their proper context, it is necessary to reproduce the judge’s reasoning in those paragraphs in full:
[35] The issue here then is whether or not the respondent can prove that the marriage is not genuine.
[36] There are a number of matters that in my view either assist the appellant or take matters no further either way. I do not agree with the respondent that any of the other matters (save the lack of detail about the proposal of marriage to which I shall return later) raised in the refusal letter are of themselves sufficient to justify the conclusion that the marriage is one of convenience. Taking account of the detailed statements addressing the issues raised, there are reasonable explanations for the ‘discrepancies’. For instance, I do not find it incredible that the sponsor gave a different date of entry to the United Kingdom to the appellant. She referred to it being December but was not sure of the year. That is not surprising of itself.
[37] Indeed, there are some matters in the interview which suggest that in fact there is (or at least was) a genuine relationship between the parties. The reference by both, for instance, to the sponsor’s desire to go on holiday to Spain is a striking example.
[38] However, there are matters arising at the hearing that lead me to the conclusion that this marriage is not genuine.
[39] Firstly, setting aside the sponsor’s sister’s account of their mother’s access to her own bank card, I note that the appellant’s and the sponsor’s accounts of why that card is used in Birmingham only after February 2021 is quite different. I take the view that the sponsor has been living in Birmingham since that time. There are of course the wage slips up to April 2021 but I give those little weight given that there has been no satisfactory explanation given about why those were still issued when the sponsor was purportedly out of the country.
[40] Second, there are the discrepancies in the accounts given about the identity of Alex Boana and the days that the sponsor visits Birmingham. Despite Mr Dhanji’s valiant attempt to persuade me that this is not significant, it plainly matters. It shows the lack of knowledge that the appellant has about the sponsor.
[41] Finally, the fact of the lack of any WhatsApp messages before me that go past November 2020 is significant. Whilst Mr Dhanji’s point about the lack of a direct question about the loss of a telephone is a good one, the point here to my mind is that there is no difficulty experienced by the sponsor sister in continuing to contact the appellant throughout her time away by WhatsApp. The account given by the appellant about not being able to continue with WhatsApp is not true.
[42] I find that the WhatsApp messages have been concocted for the purpose of this hearing. I do not accept that the explanation about the October 2020 grocery message. The appellant did not refer to any initial intention to return to the United Kingdom. There was none. The message is a slip up in the fabrication.
[43] I have taken note of the various supporting letters and that of Mr Sadiki. I give little weight to the letters. That evidence in the letters is unreliable given my finding about the willingness to fabricate evidence. Mr Sadiki has added little in his evidence. He is a friend of the appellant and is trying to help him. He may well have seen the appellant with the sponsor as he states but that does not mean that the marriage is genuine. In light of the above, I find that the parties’ intention at the time of the marriage was to gain an immigration advantage and that it is not a genuine marriage. There is cogent evidence to suggest that they have been in a relationship in the past bracket such as the reference in their interviews to a proposed holiday in Spain bracket but that, in my view, has led to a marriage of convenience. That is why there are differences in the interviews about who suggested marriage and why both are vague about what occurred.
The Appeal to the Upper Tribunal
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The grounds of appeal were helpfully summarised by their author in the following way:
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The judge misapplied the law on the operation of the burden of proof in marriage of convenience cases;
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The judge misapplied the law by failing, in practice, to address the issue of the appellant’s intentions at the time of the marriage;
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The judge failed to identify any evidence before him about the appellant’s and sponsor’s intentions at the time they married to justify his finding that theirs was a marriage of convenience; and
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The judge failed to give sufficiently cogent reasons for his conclusion that the appellant’s and sponsor’s marriage was one of convenience.
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Judge Gibbs considered these grounds to be arguable. She noted that she intended no limitation on the grant of permission.
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In submissions before me, Mr Youssefian accepted that the judge had set out the law correctly at [33] of his decision. As submitted in the first ground, however, the judge had not applied the law correctly. It was initially for the Secretary of State to establish that there was a reasonable basis for suspecting that the marriage was one of convenience. Whilst there might have been a basis for such suspicion at the time of the interview, the judge had accepted at [36] that there were reasonable explanations for the discrepancies...
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