Upper Tribunal (Immigration and asylum chamber), 2022-09-07, EA/00091/2020
| Appeal Number | EA/00091/2020 |
| Hearing Date | 24 June 2022 |
| Published date | 22 September 2022 |
| Date | 07 September 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: EA/00091/2020
UI-2021-000704
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/00091/2020
UI-2021-000704
THE IMMIGRATION ACTS
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Heard at Field House, London |
Decision & Reasons Promulgated |
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On 24 June 2022 |
On 7 September 2022 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE SKINNER
Between
HARJINDER SINGH
Appellant
-and-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M. Biggs, counsel, instructed by Vision Solicitors
For the Respondent: Ms S. Lecointe, Senior Home Office Presenting Officer
DECISION AND REASONS
A. INTRODUCTION
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This is an appeal against the decision of First-tier Tribunal Judge Kinch promulgated on 5 July 2021. Permission to appeal was granted by Upper Tribunal Judge Plimmer on 12 January 2022.
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No anonymity direction has been made previously in this case, there was no application made to me for one, and there is no obvious reason why anonymity would be appropriate in this case having regard to the importance of open justice. I therefore do not make an anonymity direction in this appeal.
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The hearing before me took place in person. I heard submissions from Mr Biggs and Ms Lecointe to both of whom I am grateful for their assistance.
B. BACKGROUND
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The Appellant is a national of India, born in 1984, who came to the UK as a student in 2009. His student visa expired in January 2011 and he overstayed. In July 2013, he married one Dina Motichande, a Portuguese national, born in 1968.
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As a result of their claimed marriage, the Appellant has made three applications claiming an entitlement under EU law, as implemented in the UK at the relevant times, to remain in the UK. Each application was rejected by the Respondent on the basis that the marriage was one of convenience. The Appellant appealed each refusal to the First-tier Tribunal (“FTT”) and on each occasion the FTT has also concluded that the marriage was one of convenience.
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Although this appeal is only directly concerned with the third of these appeals, under the principles explained in Devaseelan [2002] UKIAT 000702, the previous FTT decisions form the starting point for any later appeals, and, as Judge Kinch’s approach to Devaseelan forms one of the central aspects of this appeal, it is necessary to set out the earlier FTT decisions in some detail.
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Before doing so, I note that, according to the Respondent’s summary of the Appellant’s immigration history, there are other applications which the Appellant has made, which have not yet been determined. They are not relevant to this appeal, and in referring to “applications” below, this is reference solely to those made on the basis of an entitlement under EU law.
First application and appeal
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The first application was made in late 2013. His appeal to the FTT was refused by First-tier Tribunal Judge Sweeney in a decision promulgated on 5 June 2015 (“the Sweeney decision”). His application for permission to the Upper Tribunal was refused by both the First-tier Tribunal and, on 24 September 2015, the Upper Tribunal.
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Judge Sweeney provided a summary of his assessment of the Appellant’s and Ms Motichande’s evidence before him at paras 36-38 as follows:
“36. I found both the appellant and Ms Motichande to be wholly unconvincing witnesses. Their account of their relationship and their marriage was, in my judgement, neither credible nor reliable. I did not accept their account.
37. Both parties gave not only internally inconsistent accounts of their relationship and their marriage, but also accounts that were inconsistent with each other during the course of their respective marriage interviews in March 2014. They were unable to provide a satisfactory explanation of such inconsistent accounts during the course of the hearing of the appellant’s appeal. Further, the oral evidence that they gave during the course of the appeal hearing was, on occasions, inconsistent with the account that they had provided in interview.
38. They were also unable to provide information on matters that they could reasonably be expected to.”
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One significant issue in determining the Appellant’s and Ms Motichande’s credibility was an admission which she made in interview with the Home Office in May 2013, when immigration officers prevented their first attempt at getting married. In interview Ms Motichande said that the Appellant was paying her £5,000 for marrying the Appellant. She was interviewed again in March 2014 and asked about this. Judge Sweeney, at paras 41-49, records that she gave a number of inconsistent accounts:
“41. … Firstly, she recounted that she had been given £5,000 by her husband because she needed to go to India to deal with some problems there. She then acknowledged having admitted to immigration officers that she had accepted £5,000 to marry the appellant, but said that she had admitted doing so because she was threatened. She then denied telling immigration officers that she had accepted £5,000 to marry the appellant and said that the money was her money. She then said that she had been forced to say that she had accepted £5,000 to marry the appellant.
42. Ms Motichande said that she had told the appellant that she needed money to go to India to deal with some documents there, she went to visit her parents in law and had surgery to her nose there.
43. During her oral evidence, Ms Motichande said that the £5,000 was for a traditional Indian wedding. This is consistent with the appellant’s account, but is entirely inconsistent with the account given by Ms Motichande during her interview. I am satisfied that she has altered her account in order to match that of the appellant.
44. In his interview, the appellant that [sic] said that he and Ms Motichande were collecting £5,000 for an Indian marriage ceremony. He said that Ms Moitchande visited her parents and her in-laws in India, but did not do anything else. He made no mention of her undergoing surgery. He said that she had not undergone any operations since they had been married.
45. I would have expected the appellant to know if Ms Motichande had undergone surgery. I would have expected Ms Motichande to have told her new husband this. The most likely explanation of the appellant’s lack of awareness of that surgery is, in my judgement, that the same was not undergone. Ms Motichande’s account of having undergone surgery was an attempt to explain payment of money to her by the appellant.
46. I am satsifed that it is more likely than not that Ms Motichande’s contemporaneous account on 30 May 2013 following her interview by immigration officers of having been paid £5,000 by the appellant to undergo the marriage ceremony was an accurate one.
47. I do not accept that she was coerced into making such admission. In reaching this conclusion, I take particular account of my findings as to Ms Motichande’s credibility. Given that I did not find her to be a credible witness, I do not accept her account in this regard in the absence of independent, reliable, corroborative evidence, of which there is none.
48. I also bear in mind that when interviewed on 10th March 2014 in Liverpool, Ms Motichande gave an account of the £5000 which was not only internally inconsistent, but was also inconsistent with the evidence of the appellant. Ms Motichande then gave a different account again concerning the £5,000 during the course of her oral evidence before me.
49. If Ms Motichande’s account of having been coerced into making an admission that she had received £5,000 were true, then I would have expected her account as to the true situation concerning this sum to have been consistent. In fact there were numerous inconsistencies in her account in this regard.” (references to interview question numbers omitted)
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At para 50-54, Judge Sweeney considered the fact that both the Appellant and Ms Motichande could not accurately remember the date on which they got married. This, he considered, was something that they could reasonably be expected to remember and that their “inability to remember such a date suggests that it is because the date was not important or memorable, thus indicating that the marriage was not a significant event. The most likely explanation for a marriage not being a significant event to the parties to the same is, in my judgement, that it is not genuine.”
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There were further significant inconsistencies in the evidence as to:
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how long Ms Motichande had known the Appellant (paras 55-58);
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which room in Ms Motichande’s flat the Appellant had come to fit carpet (paras 59-74);
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when the Appellant and Ms Motichande first met and whether they went out together having met (paras 75-81);
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which of them had proposed to the other and whether Ms Motichande had initially refused when he proposed or not (paras 82-105);
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the number of floors and bedrooms in Ms Motichande’s flat and the view from her bedroom window (paras 106-108);
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when they started living together and where Ms Motichande’s son was living (paras 109-115).
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In light of the Appellant’s and Ms Motichande’s lack of credibility, Judge Sweeney found that the marriage was a marriage of convenience and...
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