United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/31894/2015

 

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 19 July 2017	On 29 November 2017

 

Before

 

UPPER TRIBUNAL JUDGE KOPIECZEK

 

 

Between

 

Onyebuchi Sabastine Onah

(Anonymity Direction Not Made)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Ms C Nicholas, Counsel

For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

1.              The appellant is a citizen of Nigeria, born in 1972. He made an application for a residence card as confirmation of a right of residence as the spouse of an EEA national exercising Treaty rights in the UK. His partner is a French citizen.

2.              The respondent refused the application in a decision dated 27 February 2015. The respondent's decision was to the effect that the marriage was one of convenience, and that in any event it was not a marriage that was legally valid in Nigerian law. Furthermore, insufficient evidence had been provided to establish that the appellant and the person said to be his partner are in a durable relationship.

3.              The appellant's appeal against the respondent's decision came before First-tier Tribunal Judge Cockrill ("the FtJ") on 9 November 2016. Relying on the decision of the Upper Tribunal in TA and Others ( Kareem explained) Ghana [2014] UKUT 316 (IAC) (but see also Kareem (Proxy marriages - EU law) [2014] UKUT 24 (IAC)) and Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC), he dismissed the appeal.

4.              In relation to the decision in Kareem he found that there was no evidence that the French authorities had accepted the appellant's proxy marriage as a lawful marriage. In relation to Sala he found that the appellant had no right of appeal as an extended family member.

The Grounds and Submissions

5.              I summarise the grounds of appeal, as initially advanced, upon which permission was refused, and in terms of the renewed grounds. I take the two as a composite whole. The initial grounds contend that the FtJ failed to take into account the extent of the documentation establishing that the parties were in a relationship akin to marriage. Documents, it is said, cover a period from 2013 to 2016.

6.              It is argued that in TA & Others the Upper Tribunal had decided that it was imperative to look at the question of a durable relationship in the absence of evidence that a marriage was accepted in the relevant Member State.

7.              It is further argued that the FtJ was wrong to fail to have regard to the Article 8 rights of the appellant and his spouse.

8.              In the renewed grounds the decision in Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178 was relied on in terms of its having overruled Kareem. The renewed grounds further contend that with reference to the Immigration (European Economic Area) Regulations 2016 (sic), the appellant is entitled to a residence card as a person who is in a durable relationship and is therefore an extended family member. It is argued that he was entitled to a right of appeal on that basis.

9.              The submissions on behalf of the appellant were, it has to be said, rather wider ranging than the matters advanced in the grounds. It was conceded that the appellant had no entitlement to have his or his partner's Article 8 rights considered, in the light of the decision in Amirteymour and others (EEA appeals; human rights) [2015] UKUT 466 (IAC). That was a proper concession to be made on behalf of the appellant.

10.          It was then submitted that, contrary to the 'rule 24' response, there was evidence before the Home Office in relation to the validity of the marriage in Nigerian law. On the other hand, it did at one stage appear to be accepted by Ms Nicholas that such evidence was not before the FtJ.

11.          There was then reference to a document entitled 'Grounds for Permission to Appeal and Further Submissions', dated 19 July 2017, although it was not a document that had been provided to the respondent, Mr Jarvis not having seen it, and nor was it provided to me.

12.          However, after the hearing had concluded that document was brought to me in the afternoon. It has a date stamp of receipt of 19 July 2017. There is a fax date of 18 July 2017 at 16:28, although it is not clear whether that is the date upon which it was provided to the Tribunal. In any event, it was not provided in a timely fashion. Nevertheless, at this point I shall summarise its contents.

13.          It refers to the decision in Awuku. It then states that an affidavit and a customary marriage certificate in relation to this appeal, was prima facie evidence that the marriage was performed in accordance with Nigerian law. It is asserted that the respondent had not provided any evidence to the contrary.

14.          It next states that the appellant instructed that the marriage was celebrated by proxy in Anambra State in Nigeria and purports to refer to an "enclosed" customary marriage affidavit and certificate issued in Nigeria (no such document is provided with the written submissions). It is asserted that all necessary rights were performed in accordance with native law and custom.

15.          The written submissions advance further arguments in terms of the validity of the marriage according to Nigerian law, again referring to an affidavit and its contents, and recites various provisions of Nigerian law. Those further submissions then reproduce verbatim the original grounds upon which permission to appeal was sought.

16.          Returning to the oral submissions before me, it was contended that the certificate of the registration of the marriage in Nigeria was a document that the Home Office had in its possession. It would appear, although it was not clear, that it was being asserted that this was a document that the Home Office previously had had in its possession, some time prior to the application for a residence card, or if not, at least at the date of the decision in any event.

17.          It was submitted that if the FtJ had received the affidavit of marriage, the certificate of marriage would also have been received by him as it is on the back of the affidavit. It was contended that the solicitors for the appellant had asked for the return of the certificate, although no letter to that effect was able to be produced. In fact, it is not the case that the certificate of marriage was in the bundle produced before the FtJ.

18.          There was then an assertion, on the appellant's instructions, to the effect that the Home Office bundle was apparently sent to the wrong address, again there being nothing to support that contention. It was submitted that the respondent's conclusion that the marriage was not a genuine one was belied by the appellant's witness statement.

19.          On behalf of the respondent, Mr Jarvis pointed out that the issue raised in the grounds of appeal was not about the validity of the marriage in Nigerian law but about the FtJ's failure to assess the relationship as being one akin to marriage. The appellant had no right of appeal on that issue, following the decision in Sala.

20.          In any event, it is clear from the respondent's decision that the appellant's partner had played no part in the process leading up to the respondent's assessment of the relationship, as set out in the decision letter. Furthermore, as is apparent from [13] of the FtJ's decision the appellant's partner did not attend the hearing. Although it was said that she was unwell, no medical evidence was provided. The evidence before the FtJ did not establish that this was a valid marriage, it was argued.

21.          It was submitted that now on behalf of the appellant it was sought to argue points not raised in the grounds, in terms of the validity of the marriage. Whilst it was conceded on behalf of the respondent that the FtJ had erred in law in terms of his application of the decision in Kareem that error of law was not material, it was submitted.

22.          In reply, Ms Nicholas suggested that although the respondent referred to the fact that there had been a non-attendance at a marriage interview, that was caused by the invitation to the interview not having been delivered. However, documents in that respect were not produced at the hearing before me. It was then conceded that the arguments on behalf of the appellant were constrained by the matters raised in the grounds of appeal.

23.          It was next asserted that in Awuku, the Secretary of State had "pledged" that any case which was refused on the basis of Kareem would be reviewed, and there would be an invitation for a resubmission of the application. This appeal however, was already pending at the time and therefore the appellant's solicitors only had the choice of withdrawing the appeal, it was said.

24.          When I inquired as to where it was said in Awuku that the Secretary of State had agreed to reconsider all such cases, I was referred to Awuku v Secretary of State for the Home Department [2016] EWCA Civ 1303 (that decision being an earlier part of the proceedings in the Court of Appeal reported under a different citation), in particular at [10]. However, that is not what is said at [10] of that decision. Mr Jarvis indicated that he was not aware of any instructions to the effect advanced on behalf of the appellant. Ms Nicholas then suggested that it may be that that commitment by the Secretary of State might be in some other publication.

25.          After the hearing before me, the Court of Appeal in Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755 found that Sala was wrongly decided. In the circumstances, I considered it appropriate to allow the parties the opportunity to make further submissions on the Sala issue, and issued directions to the parties on 10 November 2017 giving them 14 days to make submissions should they so wish, limited solely to the Sala point. I indicated that at the expiry of that period, whether or not further submissions had been filed and served, a decision on the appeal would be made without further reference to the parties.

26.          On 23 November written submissions were received on behalf of the appellant, but none on behalf of the respondent.

27.          In my directions sent on 10 November I directed that the submissions be " limited solely to the Sala point" (emphasised in the directions by the underlining). Despite that, of the five pages of submissions, only 7 short paragraphs relate to the Sala point and the judgment in Khan. The remainder of the submissions reproduce documents already provided, for example the grounds of appeal, and attach the affidavit of marriage to which I have already referred, and the certificate of registration of marriage to which I have also referred.

28.          It is hard to understand why the submissions made in response to my directions failed to comply with those directions. It is impossible to see what part of my directions was not clear in terms of the limited scope of any further submissions. I confine myself to considering only that part of the submissions which complies with my directions. Put simply, it is contended that in the light of Khan, the appellant had a right of appeal as an extended family member.

Conclusions

29.          It is true that the FtJ erred in law in his reliance on Kareem, the decision of the Upper Tribunal. That decision has been overturned by the Court of Appeal in Awuku, and although Awuku had not been decided at the time of the appeal before the FtJ, the Court of Appeal decision states the law as it has always been. Insofar as the FtJ relied on the decision in Kareem in terms of the significance of there being no evidence that the French authorities had accepted the proxy marriage as valid in Nigeria, he erred in law.

30.          However, that error of law is not material to the question of whether the marriage is valid, and would not have caused me to set aside the FtJ's decision. The grounds of appeal do not include any argument in relation to the validity of the marriage in Nigerian law. That is not a matter raised in the initial grounds or in the renewed grounds. Insofar as the matter was raised at the hearing and in the document of further submissions to which I have referred, provided after the hearing, those are not matters that are the subject of the grounds upon which permission was sought or granted.

31.          Furthermore, the submissions on behalf of the appellant before me do not establish that there was evidence before the FtJ proving the validity of the marriage. It is evident that the certificate of marriage was not in the bundle of documents before the FtJ. Whatever may be said about what documents were or were not before the respondent, it was for the appellant to put evidence before the FtJ to prove the validity of the marriage in Nigerian law. As I say however, in any event this was not a matter that was the subject of grounds of appeal upon which permission was granted.

32.          Having said all that, it is the case that the FtJ erred in law in his reliance on the decision in Kareem. He also erred in law in his reliance on Sala in the light of Khan. The issue of whether the appellant is in a durable relationship and is thus an extended family member is a matter that requires to be determined. The error of law in relation to whether the appellant has a right of appeal as an extended family member is reason enough to set aside the FtJ's decision.

33.          Although I have commented on what was and what was not the subject of the grounds of appeal to the Upper Tribunal (i.e. not the issue of validity of the marriage in Nigerian law), that was not in fact an issue that was determined by the FtJ. Given that the decision of the FtJ is set aside, it is a matter that may have to be determined. There are no preserved findings by the FtJ in that respect; there are no findings at all on it. There is no basis therefore, for any direction limiting the scope of the further hearing.

34.          In the circumstances, taking into account the Senior President's Practice Statement at paragraph 7.2, it is appropriate for the appeal to be remitted to the First-tier Tribunal for consideration of all matters relating to the application for a residence card as confirmation of a right of residence as the spouse of an EEA national, in the light of the law as it is now understood to be. For the avoidance of doubt, that includes the issue of the validity of the marriage under Nigerian law, and the issue of whether the appellant is an extended family member by reason of being in a durable relationship.

Decision

35.          The decision of the First-tier Tribunal involved the making of an error on a point of law and its decision is therefore set aside. The appeal is remitted to the First-tier Tribunal for a hearing de novo, with no findings of fact preserved, before a judge other than First-tier Tribunal Judge Cockrill.

 

 

Upper Tribunal Judge Kopieczek dated 28/11/17