Upper Tribunal (Immigration and asylum chamber), 2019-04-15, EA/07856/2017
| Jurisdiction | UK Non-devolved |
| Date | 15 April 2019 |
| Published date | 05 June 2019 |
| Hearing Date | 08 April 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | EA/07856/2017 |
Appeal Number: EA/07856/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/07856/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision and Reasons Promulgated |
|
On 8th April 2019 |
On 15th April 2019 |
Before
Upper Tribunal Judge Rimington
Between
Arben Gjura
(aNONYMITY DIRECTION not Made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
Appellant: Mr Wilcox, instructed by J M Wilson Solicitors Ltd
Respondent: Mr E Tufan, Senior Home Office Presenting Officer
DECISION
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The appellant, a national of Albania born on 16th May 1989 appeals against the decision of First-tier Tribunal Judge Ford promulgated on 2nd August 2018 which refused his appeal. That appeal was against the Secretary of State’s refusal dated 25th July 2017 of his application for a residence card on the basis that he had engaged in a marriage of convenience contrary to the Immigration (European Economic Area) Regulations 2016.
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First-tier Tribunal Judge Ford confirmed prior to her conclusions that she had considered the documents in the bundle including photographs and medical reports [34]. She acknowledged the child of the appellant and his said spouse at the outset.
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In her decision the judge made the following observations and findings; -
(i) she was guided by Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038 (IAC) and Rosa v SSHD EWCA Civ 14 as to the burden and standard of proof [9]. ‘The evidential burden may shift by proof of facts which justify an inference that the marriage is not genuine, … but there must be more than suspicion’ [11].
(ii) the Secretary of State had discharged the burden of proof in showing that the marriage between the appellant and Anna Drudzova was a marriage of convenience to a high degree of probability.
(iii) the appellant had failed to adduce evidence to show that the marriage was not intended wholly or mainly for the purpose of the appellant gaining immigration advantage [34].
(iv) the couple claimed to have been married and in a relationship for 4 years and were still giving highly inconsistent answers about their respective families and the appellant wife was acting as if she were his sole carer, ‘making an application for a Slovakian passport on his behalf without the appellant’s knowledge and planning to take him out of the United Kingdom without the appellant’s knowledge’ [35].
(v) the appellant had a good knowledge of their child’s medical difficulties but did not attend GP appointments because of work but the company he worked for was said to be owned by his wife [36]. (This contrasted with the wife’s evidence that he did attend GP appointments)
(vi) the wife did not work in the business and knew nothing about it despite deriving some income from it. There was no evidence of any consideration passing for the transfer of the business into her name in 2015.
(vii) significant discrepancies remained unresolved from the marriage interview and the judge found ‘the evidence I heard at the appeal hearing only added to the inconsistencies’. The judge added ‘I that (sic) the appellant and his wife are cohabiting as a genuine couple in an ongoing relationship. They both have relations in the United Kingdom but I heard no evidence from any of them’.
(viii) ‘the appellant has admitted to deliberately withholding information from the immigration authorities at interview in order to improve his chances of securing a residence card. I find he lied at the appeal hearing in a self-serving manner. He knew perfectly well that the car wash business was previously owned by his uncle but lied in telling me that it was ‘some Kurdish guy’ [39].
(ix) ‘Even allowing for the appellant’s paternity of Daniel and for what must have been a stressful time of the appellant and Daniel’s mother around the time of his birth and then his illness the evidence shows to a high degree of probability that this marriage was entered into for the sole or main purpose of the appellant securing a Residence card to which he was not entitled because he was never a genuine family members of the EEA national. He has married her and fathered Daniel solely to get immigration status’ [40].
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The grounds of appeal advanced that
(i) the judge noted at paragraph 17 that Social Services shared the misunderstanding about the appellant’s and wife’s address but that on investigation this was satisfactorily addressed. However, at paragraph 25 the judge assumed the parties would have been asked by the Registrar verbally. The appellant’s wife only had limited English and had recently changed address. The judge failed to consider that it was an error shared by Walsall Council Social Services.
(ii) at paragraph 18 the judge, when considering the intention of forming a genuine relationship prior to the marriage, failed to give consideration to any other factor than their difficulty in communicating with each other. She did not consider that the appellant’s wife was expecting their child. This was material. The judge also failed to consider the medical notes, at 19-20 and correspondence addressed to him and his wife [21-27]. The error on the birth certificate was considered in isolation from the evidence. Further the appellant was not asked if he was aware that a passport had been applied for without his knowledge. The judge provided an explanation for not accompany his wife to the GP appointments. The judge erred in concluding that there had been no genuine transfer of the business and this was not in issue. The appellant could have provided documentary evidence on this point.
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The judge’s approach failed to follow the correct approach of Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038 (IAC) and Rosa v SSHD EWCA Civ 14, including factors such as the length of their relationship, the fact that they have a child together, evidence of cohabitation, and the several applications by the appellant seeking a residence card.
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The grant of permission stated that the grounds complained of (1) the approach to the evidence [17],[18] and [25], (2) a non evidence based assumption [35], (3) not considering the evidence and not giving the appellant a chance to comment on an adverse point not in the refusal letter, but that the first 3 grounds were primarily in the factual arena and ‘unlikely to justify a grant of permission on their own’.
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The grant of permission concluded that Ground (4), however, rested on the proper approach to the abuse of rights involved EEA national which was considered in Sadovska & Anor v Secretary of State [2017] UKSC 54. The judge was stated not to have included this in her legal summary and it was not mentioned in the grounds, but it was arguable that the judge should have applied it in any event. The standard was the balance of probabilities, but the judge referred to a ‘high degree of probability’ in [34] and [40]. Sadovska held that too much weight should not be given to inconsistencies which should be in the context of all of the evidence and the circumstances of the interview. It was accepted that the couple have a child, and both are involved in the upbringing of the child. The deceit should have been the purpose of both parties.
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At the hearing Mr Wilcox accepted that the legal approach was the ‘hinge’ to the appeal and there needed to be an error of law in relation to this aspect of the permission to found any challenge on the prior three grounds in the application for permission to appeal.
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There was no clear evidence that the judge had grappled with the motive of the wife. There was carelessness in the decision and a degree of laxness, and I was referred to paragraph 38 where there appeared to be a word missing. Mr Wilcox relied on but also expanded on the written grounds of appeal. The Secretary of State’s refusal had not taken issue with the wife exercising treaty rights. There was an anomalous finding at [25] in relation to the addresses particularly when compared with the finding at [35]. There was a failure to consider the wife’s pregnancy notes. Sadovska clearly focussed on the intention of both parties. There should not be merely incidental benefit, but it must be the predominant purpose of the relationship to subvert the Immigration (European Economic Area) Regulations 2016. The evidence was not approached with the relevant legal test or considered in the round.
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Mr Tufan argued that the evidence was indeed considered in the round. He accepted that there was a child and the DNA report was not challenged and that the judge did not mention Sadovska, but she nonetheless...
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