England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge McGeachy
IA/05994/2013

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/11/2015

Lord Justice Underhill:

INTRODUCTION

1. The Appellant, whose full name is Collins Mohammed Agho, is a Nigerian national, born on 13 February 1984. He entered the UK lawfully as a student on 25 April 2010. On 18 November 2011 he married a French national named Kozo Bernadette Raducanou.
2. On 2 April 2012 the Appellant applied to the Respondent, in accordance with the Immigration (European Economic Area) Regulations 2006, for an EEA residence card, claiming that he was a family member of Ms Raducanou, who was exercising her Treaty rights in the UK. The application was made with the assistance of a firm of immigration advisers, using the standard "EEA2" form. The form gave both his address and that of Ms Raducanou as 23 Manor Grove London SE15 1EQ, which is in Peckham.
3. That application for a residence card was refused, no less than ten months later, by letter from the UK Border Agency ("UKBA") dated 7 February 2013. Two reasons were given. The first reads as follows:

"In order to qualify for a residence card, you are required to provide evidence that you are related to your EEA sponsor as claimed. As evidence of this, your representative supplied a marriage certificate. However, a visit was conducted to your address, and it was found that you and your EEA sponsor do not, and never have, resided at this address. Therefore, this department cannot accept that you are related as claimed to your EEA sponsor."

The second reason was that Ms Raducanou was not exercising Treaty rights.

4. For reasons which will appear, we are not concerned with the second of those reasons. The first is obliquely expressed. However, it is accepted before us that what it meant was that the Respondent believed that the Appellant and Ms Raducanou had never lived at 23 Manor Grove; and that it could be inferred from that fact that their marriage was a marriage of convenience and accordingly did not constitute a relationship falling within the terms of the Regulations. A spouse is of course a "family member" for the purpose of the Regulations (see regulation 7 (1) (a)); but the definition of "spouse" in regulation 2 (1) excludes "a party to a marriage of convenience". An allegation that the marriage of an applicant under the Regulations is a marriage of convenience is a serious one, and I hope that it is not normally made in such inexplicit terms as it was in this case: people need to know clearly what is being said against them.
5. The allegation that the Appellant's marriage to Ms Raducanou was a marriage of convenience had not been put to him prior to UKBA's decision. He had not been asked to provide evidence of the genuineness of the marriage nor to rebut what was said about the visit to 23 Manor Grove – as to which indeed no details whatever are given, not even the date. This was a clear breach of good practice: see para. 12 below.
6. The Appellant appealed to the First-tier Tribunal ("the FTT"). In the meantime Ms Raducanou had established in an appeal of her own that she was exercising Treaty rights. Accordingly the only issue before the Tribunal was whether their marriage was indeed a marriage of convenience. That is not in fact a defined term, but the Tribunal adopted the definition given by the Upper Tribunal (comprising Blake J, the President, and UTJ Freeman) in Entry Clearance Officer, Nicosia v Papajorgji [2012] UKUT 00038 (IAC), namely "a marriage entered into without the intention of matrimonial cohabitation and for the primary purpose of securing admission to the country" (see para. 14). Neither party before us quarrelled with that definition (though in a case like the present the phrase should be "securing the right to reside" rather than "securing admission"). I will refer to "genuine marriage" as the antonym of "marriage of convenience".
7. The appeal was heard by the FTT on 8 July 2013. The Appellant was represented by Ms Nnamani of counsel, who also appeared before us. The Respondent was represented by a Home Office Presenting Officer. I shall return in due course to the evidence that was before the Tribunal. By a determination promulgated on 11 July FTTJ Pearce held that on the balance of probabilities the Appellant's marriage to Ms Raducanou was indeed a marriage of convenience, and he dismissed the appeal. I should say that there was no case advanced on the basis of the Appellant's rights under article 8 of the European Convention of Human Rights.
8. The Appellant was initially refused permission to appeal to the Upper Tribunal ("the UT"), but permission was given by UTJ Storey, on the basis that it was arguable that the evidence before the FTT did not justify the Judge's conclusion.
9. That appeal was heard on 10 October 2013. The Appellant was again represented by Ms Nnamani and the Respondent by a Senior Home Office Presenting Officer. By a determination promulgated on 16 October UTJ McGeachy held that the decision of the FTT was one to which the Judge was entitled to come on the evidence, and he dismissed the appeal.
10. Permission to appeal to this Court was initially refused on the papers but it was granted by Maurice Kay LJ at a hearing.

PRELIMINARY: THE BURDEN AND STANDARD OF PROOF

11. I should start by stating what the position is about the burden and standard of proof in a case where the Secretary of State or an Entry Clearance Officer ("ECO") alleges that a marriage is a marriage of convenience. That question is carefully reviewed by the UT in the Papajorgji case to which I have already referred. In that case the ECO had refused an application for entry clearance on the basis of marriage to an EEA national on the ground that all that she had produced in support of the application was her marriage certificate and a copy of her husband's Greek passport and that she had failed to produce "any documentary evidence of your marriage, such as photographs of your wedding or your life together or agreements in joint names such as a bank account or a tenancy agreement". The UT's determination falls into two parts.
12. At paras. 24-32 the UT holds that the ECO's approach was wrong. As it put it at para. 27 of its determination

"… [T]here is no burden on the claimant in an application for a family permit to establish that she was not a party to a marriage of convenience unless the circumstances known to the decision-maker give reasonable ground for suspecting that this was the case. Absent such a basis for suspicion the application should be granted without more on production of the documents set out in article 10 of the Directive. Where there is such suspicion the matter requires further investigation and the claimant should be invited to respond to the basis of suspicion by producing evidential material to dispel it."

It goes on to say that a failure to provide evidence in support of the genuineness of the marriage will only justify an adverse inference if such documents have been asked for. At para. 32 it emphasises that the evidential burden of showing that there are reasonable grounds for suspecting a marriage of convenience lies on the decision-maker.

13. Thus far, the UT was concerned with the approach to be followed by the ECO. At paras. 33-38 it goes on to discuss the burden of proof in proceedings in the Tribunals. It was concerned about a possible reading of an earlier decision – IS (Marriages of Convenience) Serbia [2008] UKAIT 31 – to the effect that  "once evidence of reasonable suspicion has been raised, there is a legal burden on the applicant to demonstrate that it is more probable than not the marriage is not one of convenience" (see para. 33). It expressed considerable reservations about such an approach, and although it said that the issue did not fall for decision it went on at paras. 34-37 to explain why it was strongly inclined to believe that it was wrong in principle. Mr Gullick took no issue with the reasoning in those paragraphs, but it is fair to say that the grounds of appeal did not turn on the issue of the burden of proof and it does not fall for decision before us any more than it did before the UT in Papajorgji. In those circumstances I will not attempt to summarise the passage in detail. What it comes down to is that as a matter of principle a spouse establishes a prima facie case that he or she is a family member of an EEA national by providing the marriage certificate and the spouse's passport; that the legal burden is on the Secretary of State to show that any marriage thus proved is a marriage of convenience; and that that burden is not discharged merely by showing "reasonable suspicion". Of course in the usual way the evidential burden may shift to the applicant by proof of facts which justify the inference that the marriage is not genuine, and the facts giving rise to the inference may include a failure to answer a request for documentary proof of the genuineness of the marriage where grounds for suspicion have been raised. Although, as I say, the point was not argued before us, that approach seems to me to be correct – as does the UT's statement that the standard of proof must be the civil standard, as explained by the House of Lords in Re B (Children) [2008] UKHL 35, [2009] 1 AC 11.
14. The UT in Papajorgji concluded, at para. 39:

"In summary, our understanding is that, where the issue is raised in an appeal, the question for the judge will therefore be 'in the light of the totality of the information before me, including the assessment of the claimant's answers and any information provided, am I satisfied that it is more probable than not this is a marriage of convenience ?'"

Consistently with the prior discussion, that formulation clearly places the burden of proof on the Secretary of State (or ECO).

THE EVIDENCE BEFORE THE FTT

15. The Appellant's witness statement, dated 2 July 2013, is quite short; but it will be appreciated that in preparing for the hearing he knew no more of the case against him than appeared in the original decision letter from which I have quoted.
16. In the opening paragraphs of his statement the Appellant gives evidence about his marriage. It is in very general terms, but it says quite clearly that although he and his wife had separated in May 2013 and were getting divorced, they had lived together from March 2011 until they separated: it is clear from the context, though he does not say so in so many words, that he means that they lived together at 23 Manor Grove. I should mention in passing that it was common ground before us that the fact that the Appellant's marriage had, since the making of the application for a residence card, broken down was not in itself a reason for refusing the application.
17. The statement then turns to the visit referred to in the decision letter. The Appellant says:

"9. … I was aware of a visit by officers from Peckham Police station 18 December 2012. The officers dropped their card for Collins to contact them. Our Landlord was contacted and he collected the card. Incidentally I share the same surname with my Landlord.

10. I was contacted by my Landlord regarding the visit, as he had no dealings with Peckham Police or at all.

11. My wife and I contacted the officers and were informed that if there is any need for them to re-visit or for us to come we will be notified accordingly. They also collected our numbers.

12. I was shocked to find out from the Immigration decision that it was being alleged that my wife and I were not living together. This is plainly inaccurate."

He goes on to say that he has spoken to a lady to whom the officers had spoken on their visit. He says that she was the girlfriend of the occupant of another flat in the building. He says that she told him that she had told the police that she did not live there and did not know the people who lived upstairs (which was where he and his wife lived). He says that he had asked her to come to the Tribunal but that she did not want to get involved.

18. Towards the end of his witness statement the Appellant refers to what he describes as "substantial documentary evidence" demonstrating that he and Ms Raducanou lived together at 23 Manor Grove. The Judge says in his determination that the Appellant initially produced a bundle of 28 pages, which included his witness statement, but supplemented it in the course of the hearing by producing bank statements and a tenancy agreement. We have in the first section of the Appellant's bundle for the hearing before us what appears to be the initial bundle referred to by the Judge, being 28 pages long, together with the tenancy agreement. That contains a few pages of bank statements, but there is also a further section containing a much larger number of what are described in the index as "Bank Statements that were produced in Court before the FFTJ [sic]" – i.e., presumably, the further documents referred to by the Judge. In fact, however, it transpired before us that that was not accurate. Although some of the statements in question appear to have been before the Judge since they contain information referred to by him, others cannot have been since they post-date the hearing. This is extremely regrettable and does not reflect well on the Appellant's solicitors; but fortunately the uncertainty as to precisely which documents were before the FTT does not affect any of the key points.
19. It is clear that the Appellant was cross-examined, because the Judge records some of his oral evidence, but there is no summary as such of what he was asked or what he said.
20. The Appellant adduced no other evidence. In particular, there was no evidence from Ms Raducanou.
21. The evidence relied on by UKBA consisted of a file note incorporating in full the text of a report from a Sgt Jenkinson of the Metropolitan Police about a visit which he had conducted at the request of UKBA on 18 December 2012; together with a bundle of documents. I need not summarise the file note, but the police report reads as follows (I have not corrected the punctuation):

"I attended the address at 23 Manor Grove on Tuesday 18^th December 2012 around 1930 hours.

The premises consists of an ex local authority house which is now used as bedsits and has five bedrooms, one kitchen and one bathroom.

Initially I had trouble gaining entry but eventually got in and spoke to an african female who claimed to be visiting and denied any knowledge of the other occupants of the house.

I left a note advising I would be reporting the premises as a house of multiple occupancy to the local authority.

At 22:00 hours I received a phone call from "Luke" the landlord and a male who claimed to be his solicitor. I asked the solicitor to send me an e-mail so I could legitimise who they were they did this the following day.

The owner of the premises is Mr Basil Ukonu [mobile number given].

The solicitor and managing agent is Sam Ezeh.

Samuel Louis Solicitors

17 Deptford Church Street

London SE8 4RX

020 8617 8408

I was informed that they were not aware of a tenant by the names of 'Collin' or 'Kozo' during the late night call mentioned above, I had left these details in the note.

On speaking to the managing agent the next day he stated he was not aware of these tenants I had informed him that this was an old enquiry from a year earlier Nov 2011. He was not aware of these people/ tenants."

It is convenient to mention at this point that the firm of solicitors who are said in the report to be the managing agents, Samuel Louis, have acted for the Appellant on the appeal to the FTT and since (though they did not act for him on his application for a residence card).

22. The note was produced by UKBA for the first time at the hearing. This was obviously unfair and does not reflect well on UKBA's preparation of the case. The Appellant did of course know in advance of the hearing that the case against him would be based on that visit and what it was said to show; and, as appears from his statement, he had himself learnt of the visit shortly afterwards. But he knew nothing of the detail of what the police had reported. He seems in fact to have thought that UKBA was relying on things said by the lady whom he understood from his own enquiries that the officer(s) had met, which is why he focused on it in his statement; but he could not have appreciated that the real focus of the report was on what was said by the landlord and the solicitor/managing agent. Ms Nnamani tells us that she protested at the late production of the report but that she did not ask for an adjournment because her instructions were to proceed. In those circumstances it is not surprising that it does not constitute a ground of appeal, but it is relevant in considering the evidence adduced by the Appellant.
23. The bundle produced by UKBA contained a number of formal documents, such as the Appellant's EEA2 application, but also some contemporary documents apparently obtained from Ms Raducanou (I infer in connection with her separate appeal to which I have already referred).
24. The material in the various contemporary documents produced by either party which bears on the question of whether the Appellant and Ms Raducanou lived at 23 Manor Grove can be summarised as follows:

(1) A tenancy agreement dated 20 November 2010 under which the Landlord, described as B Ukonu, lets what is described as "Room 3, 23 Manor Grove" to the Appellant, described as "Mr Collins M Agho", for £220 per month. (In this connection I should note that the Judge says that in his oral evidence the Appellant referred to his landlord as "Luke Maroy Collins or Okun". But "Okun" could be a phonetic equivalent of "Ukonu"; and the police report itself describes receiving a phone call from "'Luke' the landlord".)

(2) A television licence in the name of Ms Raducanou dated 6 October 2011 for what is described as "Room 2, 23 Manor Grove".

(3) Correspondence addressed to Ms Raducanou at 23 Manor Grove from a mobile phone company for February and September 2012.

(4) Letters dated February 2012 to both the Appellant and Ms Raducanou at 23 Manor Grove from the Electoral Registration Officer at the Council.

(5) A letter to Ms Raducanou at 23 Manor Grove dated 6 June 2012 enclosing an NHS European Health Insurance card.

(6) A number of bank statements and other bank correspondence from Lloyds TSB relating to (separate) accounts of the Appellant and Ms Raducanou, in both cases giving their address as 23 Manor Grove. The Appellant's branch is in Gillingham and Ms Raducanou's in Peckham. The statements cover dates in both 2012 and 2013. Apart from constituting proof of their addresses, they also show some payments which are of interest, specifically:

(a) payments of various sizes from the Appellant to Ms Raducanou and vice versa;

(b) what appear to be regular monthly payments in late 2012 from the Appellant to "L Ukono" in the sum of £310; that would be consistent with payment of rent for a room in 23 Manor Grove – the sum is greater than required under the tenancy agreement, and neither the initial "L" (Luke ?) nor the precise spelling conform to what appears in the agreement ("Basil Ukonu"), but these discrepancies are not necessarily significant (as to the sum, see para. 24 below); and

(c) a large number of debits in Ms Raducanou's account which evidently show her visiting cashpoints and spending at retail premises in Peckham, and also purchasing tickets on the London Overground – this may be material in view of the suggestion, discussed below, that she was in fact living in or near Wellingborough in Northamptonshire.

(7) Ms Raducanou's payslips from her employers, Sabis-Infinity, from early 2013, giving her address as 23 Manor Grove.

(8) The Appellant's P60 for the tax year 2012-13, giving his address as 23 Manor Grove.

25. It is convenient to deal here with one apparent discrepancy in the documents. It will be seen that the address on the TV licence registered to Ms Raducanou was Room 2, 23 Manor Grove, whereas the tenancy agreement refers to Room 3. We were told by Ms Nnamani that that discrepancy was put to the Appellant in the course of his oral evidence and that he explained that he changed to a bigger room in the house when Ms Raducanou came to live with him. The Judge does not explicitly record that evidence in his determination, but it is consistent with evidence from the Appellant, which he does record, to the effect that the difference between the apparent payments of rent shown in the bank statements and the rent specified in the tenancy agreement was attributable to his occupying "bigger premises within the property" (see para. 13). I also note that he does not place any reliance on the discrepancy in his reasoning.

THE DECISION OF THE FTT

26. Paras. 1-8 of the Judge's Reasons are introductory and I need say nothing about them.
27. Paras. 9-23 summarise the evidence. I have referred above to the significant points, but I should mention that at para. 17 the Judge makes a point about Ms Raducanou's residence by reference to the Appellant's EEA 2 form. Section 5 of the form required him to identify the name of his wife's employer and the "address of the business where your EEA national family member is employed". He gave the name of her employer as Sabis-Infinity UK Ltd and the address as 49, Dalkeith Road, Wellingborough, Northants. The Judge says that this shows that "his wife had been working for Sabis Infinity UK at [the Wellingborough address] … so it appears that [she] might have had a alternative address". His thinking evidently was that it was not practically possible for Ms Raducanou to live in Peckham if she was working over a hundred miles away in Wellingborough. But it is possible to read the answer on the form as referring not to the actual address where the spouse works but to the employer's official address; and in fact there was before the FTT, in the Respondent's bundle, a "to whom it may concern letter" from Sabis, dated 30 March 2012, which gives its registered address as Wellingborough but an address for correspondence in Leyton. Ms Nnamani tells us that Ms Raducanou did indeed work in Leyton, as the Judge would have been told if the point had been raised, which it was not.
28. Paras. 24-32 are headed "findings" and contain the Judge's dispositive reasoning. I should set out the following parts:

"26. I find there is evidence from a police officer which I accept that neither the Appellant nor his wife was known to the landlord nor the managing agent of 23 Manor Grove.

27. I find that on the basis of the police report that neither his wife or he were living at 23 Manor Grove on 18^th December 2012 which was a time when the Appellant claims he was, his wife was and they were living together there as man and wife.

28. I find that there was reasonable suspicion on the part of the Respondent that the Appellant was party to a marriage of convenience based on that report …

29. I found the Appellant less than convincing in his demeanour and the manner he gave evidence. Further there are a number of matters that cause me to doubt his account of what happened on or immediately subsequent to the police visit; he gives no names, there is no supporting evidence of his account, there is no record of him or his wife having called the police and there is the inherent implausibility of the landlord contacting him but the landlord denying to the police that he knew anything about the Appellant.

30. I accept that there is documentary evidence that show that 23 Manor Grove was used as a postal address by the Appellant and his wife and that at least in the period of late 2012 there was money that was stated to be rent. Equally it is clear that there is evidence that at times the Appellant was or might have been living elsewhere, as she is now.

31. I find in the light of the totality of the information before me, including the assessment of the claimant's answers and any information provided, I am satisfied that it is more probable than not this is a marriage of convenience.

32. I therefore find that the Appellant has not shown he was a spouse of an EEA within the meaning of the regulations."

(The reference in para. 30 to the possibility of "the Appellant" living elsewhere must, I think, have been intended as a reference to Ms Raducanou because of the following phrase "as she is now".)

29. The structure of that reasoning is, with all respect to the Judge, not articulated with complete clarity. But it can be analysed as follows:

(1) At para. 27 he finds, on the basis of the police report (para. 26) that, contrary to the Appellant's account, he and Ms Raducanou were not living at 23 Manor Grove on 18 December 2012. (He does not say in terms, as the UKBA decision letter does, that the report justifies the conclusion that they had never lived there, though it seems likely that that was what he intended.)

(2) Paras. 28-30 do not proceed to the next step: rather, they give the supporting reasoning for the conclusion in the previous paragraphs. Para. 28 says that the police report gave rise to a reasonable suspicion that the marriage was not genuine. Para. 29 draws attention to matters which cause the Judge to "doubt" the Appellant's evidence. Para. 30 acknowledges that the documentary evidence appears to support his account: the Judge does not say explicitly why he did not find that evidence conclusive, but the implication of his language is that it goes no further than showing that 23 Manor Grove was a "postal address". The final sentence refers to the evidence that Ms Raducanou "was or might have been" living in or near Wellingborough.

(3) Para. 31 contains the crucial conclusion that it is more likely than not that the Appellant's marriage to Ms Raducanou was a marriage of convenience. That conclusion is said to have been reached "in the light of the totality of the information before me", but it is clear from the foregoing paragraphs that the essence of the reasoning is (a) that the police report establishes a reasonable suspicion that the Appellant and Ms Raducanou were not living at 23 Manor Grove; (b) that the Appellant's evidence to the contrary was unsatisfactory; and (c) that it followed from the fact that they were not living at 23 Manor Grove that their marriage was probably a marriage of convenience.

30. I am bound to say that the structure of paras. 28-30 – step (2) above – rather suggests that the Judge adopted the reasoning disapproved in Papajorgji: that is, that his finding that the Appellant and Ms Raducanou did not live at 23 Manor Grove was made on the basis that UKBA reasonably suspected that that was the case and the Appellant had not satisfied him to the contrary. It is noticeable that paras. 29 and 30 go no further than casting doubt on the evidence adduced and do not make positive findings. But the grounds of appeal do not allege a self-misdirection in this respect, and I need not express a concluded view about it.
31. I should also say that the Judge nowhere says why the fact that the Appellant and Ms Raducanou did not live at 23 Manor Grove meant that their marriage was a marriage of convenience. Of course, if one of them had been living there but not the other, that would have been a very strong indication; but his finding, like UKBA's, was that neither of them lived there, and in principle they might have been living together but somewhere else. His reasoning presumably was that if the Appellant had given a false address in his application the most obvious explanation was that he wanted to establish a bogus matrimonial home. I can see that that might be a reasonable inference in some circumstances, but it does not necessarily follow, and it would have been better for the Judge to spell his reasoning out in full.

THE APPEAL TO THE UT

32. It was Ms Nnamani's case before the UT that the findings of the FTT were not open to it on the evidence before it. But she also sought to introduce fresh evidence. This was of two kinds.
33. First, a formal application was made in writing (though the application is undated) to admit a copy of the e-mail sent by Samuel Louis the day after Sgt Jenkinson's visit, as referred to by him in the sixth paragraph of his report. The e-mail was sent at 12.35 pm on 19 December 2012 and reads:

"Dear Mr Jenkinson

Further to my telephone conversation last night regarding above property. Whereas I understand that you conducted a visit to same yesterday looking for a Mr Collins and/or Margarete. These persons are unknown to us or our client Mr Basil Ukonu [mobile number given]. Unless there is anyway we can assist you, please take note that the individuals sought are unknown to us.

Kind regards,

Luke"

The Presenting Officer objected to the admission of the e-mail on the basis that it could have been put before the FTT. That objection might seem a little rich given that the existence of the e-mail only transpired when the police report was produced at the hearing. But it could be said that since Samuel Louis were the Appellant's solicitors in these proceedings they could be expected to have recalled the incident unprompted and produced the e-mail themselves. Ms Nnamani told us that Judge McGeachy gave no formal ruling about the admissibility of the e-mail; but it seems that he must have decided to admit it since, as appears below, he relied on it in his reasoning.

34. Secondly, Ms Nnamani tells us that she made an oral application at the hearing to put in evidence a letter from "Mr Basil C Ukonu" dated 8 October 2013 which reads:

"To whom it may concern

Re: Collins Mohammed Agho and Bernadette Kozo Raducanou

I confirm herewith that I am the freehold owner of 23 Manor Grove London, SE15 1EQ.

I also confirm that the above named are my tenants and are lawful occupiers of the premises referred to above, on house sharing arrangements with other tenants.

I can further confirm that their rents are payable by direct bank transfer, and they are up to date with their rental commitment.

If I can be of any further assistance, please do not hesitate to contact me.

Thank you."

There is no reference to the application, or to this document, in the determination of the UT.

35. Judge McGeachy found that the conclusion of the FTT was open to it. I need not set out his reasoning in full, but his essential points were as follows:

(1) At para. 28 he assesses the evidence about whether Ms Raducanou lived at 23 Manor Grove. He refers to the quite extensive documentary evidence that appeared to show that she did. But he says that it was a house in multiple occupation and that "there was nothing to suggest that [she and the Appellant] were living there together". He points out that they did not have a joint bank account and that there were no utility or other bills in their joint names. He also draws attention to the discrepancy between the numbers of the rooms identified in the tenancy agreement and on the TV licence. He emphasises that there was no witness statement from Ms Raducanou herself.

(2) At para. 21 he says that the Judge had been entitled to raise the possibility, based on the address of Sabis-Infinity, that Ms Raducanou had an alternative address. He says: "[he] did not make a finding that that was the case but this was a fact which he had been entitled to take into account".

(3) Para. 30 reads as follows:

"Turning to the issue of the police report, what the police sergeant said was that he was not aware of a tenant by the name of 'Collins' or 'Kozo'. The reality is that those are the first name of both the appellant and the sponsor. It would have been expected that another tenant at the property would have known of their first names."

He notes in the following paragraph that the late-disclosed e-mail from Samuel Louis refers to "Margarete", which is anomalous since according to Sgt Jenkinson the note which he had left had referred to "Collins" and "Kozo".

(4) At para. 31 he points out that since Samuel Louis acted for the landlord it might have been expected that they could have produced a letter from him confirming that the Appellant and Ms Raducanou had lived at 23 Manor Grove.

THE APPEAL

36. The grounds of appeal are diffuse, but I do not think it is necessary for me to try to summarise them here. As eventually formulated before us, Ms Nnamani's submission was essentially:

(a) that the FTT's decision was not open to it on the material before it; or in any event inadequately reasoned; and

(b) that even if the FTT was entitled to reach the decision that it did, the UT should have overturned it on the basis of the fresh evidence.

37. In my view the first of those two submissions is well-founded. My reasons are as follows.
38. I start with the documentary evidence. In my view that evidence, as summarised at para. 24 above, establishes a strong prima facie case that at the material time, and more particularly at the time of the police visit, the Appellant and Ms Raducanou were both living at 23 Manor Grove. No doubt it is possible that it was only a postal address and that it had been set up as part of an elaborate system under which the Appellant entered into a sham tenancy agreement and a series of official documents were sent to both of them at the leased address for over a year while they lived elsewhere; but the documents are sufficiently numerous, and various in their character, that in my view compelling evidence of such a deception would be required. The supposed deception is all the more odd if the Appellant was making substantial payments to the landlord, as the documents seem to show, and yet was not living in the premises. (The minor discrepancies discussed at paras. 24 (6) (b) and 25 above are also more characteristic of real life than of a planned deception.)
39. The Judge's endorsement of UKBA's conclusion that, notwithstanding the weight of the documentary evidence, neither the Appellant nor Ms Raducanou lived at 23 Manor Grove substantially depends on the police report. Although he refers to the inference that might be drawn from Ms Raducanou working, as he thought, in Wellingborough, it is clear from the analysis at para. 29 above that it played a marginal role in his reasoning, and it was in any event based on a misunderstanding.
40. I turn therefore to the police report. The fact that Sgt Jenkinson did not find the Appellant or Ms Raducanou at home when he visited of course establishes nothing: there is nothing unusual about people not being at home at 7:30 in the evening. Nor, even on his own account, does his encounter with the lady who he met in the building, since she said that she was a visitor and did not know anyone there. The real question is what inferences could properly be drawn from the fact that the landlord and his agent denied knowledge of the persons about whom they were asked. I agree that that is problematic, but in my view it was not capable of being a sufficient basis for rejecting the clear message of the documentary evidence. The report is full of obscurities that leave open the risk of confusion. For example:

(1) It says that Sgt Jenkinson had left a note referring to "Collins" and "Kozo" (though the text of the note is not reproduced, and its actual content is said to have been about reporting the premises to the local authority). But those are the first names of the Appellant and his wife, not their surnames; and indeed Ms Raducanou seems from the documents which we have seen to use Bernadette, and not Kozo, as her first name. I do not regard it as incredible that the landlord would not have appreciated who the enquiry was about.

(2) It is unclear whether at the time of the late-night conversation on 18 December the landlord and/or the solicitor/managing agent had received the note or had only been told of its existence by someone else who had found it at the property; if the latter there was obviously room for Chinese whispers.

(3) The report is confusing about precisely what communications there were. Sgt Jenkinson refers to receiving an e-mail the following day, but he does not set out its terms and he refers also to a conversation with "the managing agent". (We do of course now have the text of the e-mail, but I am at this stage confining myself to the evidence as it was in the FTT.)

(4) I do not understand Sgt Jenkinson's reference to "this" being "an old enquiry from a year earlier Nov 2011" – a date when the Appellant had not even applied for a residence card; nor why this was something that he wanted to tell the managing agent.

41. No doubt these confusions might have been cleared up by further exploration; but it is important to bear in mind that the report was the totality of the evidence relied on by the Respondent and that it had been produced for the first time at the hearing, so that there was no opportunity for the Appellant (unless he sought an adjournment) to respond to the details. I do not believe that it was right for the Judge to make a serious finding of the kind that he did, flatly contrary to the documentary evidence, on the basis of the late-disclosed, second-hand and confused evidence relied on by UKBA.
42. I have not overlooked the fact that the Appellant's account of the visit and its aftermath, given in his witness statement at a time when he had not seen the police report, is inconsistent in some respects with what appears in the report. The Judge refers to this at para. 29 of his determination. But I regard this as simply exemplifying the same confusion. I should, however, comment on one of the points made by the Judge. He says that there was no record of the Appellant and Ms Raducanou having contacted the police themselves, as the witness statement says they did. But I do not see how he was in a position to make that finding when there was no evidence from the police about what records existed: Sgt Jenkinson's report took matters no further than the day following his visit.
43. It follows that in my view the UT was wrong not to overturn the decision of the FTT. But it is worth observing that some of the reasons given by Judge McGeachy for not doing so are themselves flawed. In particular:

(1) His suggestion that the Appellant and Ms Raducanou may in fact have lived at 23 Manor Grove but in separate rooms – see para. 31 (1) above – represents a completely different "case theory" from that advanced by UKBA, and accepted by the FTT, namely that the Appellant and Ms Raducanou had never lived at 23 Manor Grove at all.

(2) His comment quoted at para. 31 (3) above proceeds on the basis that "another tenant at the property" might have been expected to know the first names of the Appellant and Ms Raducanou. But there was no evidence about what any other tenant knew: the only people to whom Sgt Jenkinson spoke were the lady visitor and the landlord and managing agent.

44. It also follows that I need not give a concluded view about the second limb of Ms Nnamani's challenge – that is, whether, if the FTT's conclusion was open to it on the evidence, the UT ought to have reached a different conclusion on the basis of the further evidence which the Appellant sought to adduce. For what it is worth, however, the actual text of Samuel Louis's e-mail (para. 29 above) tends to bear out my observations about the potential for confusion. "Luke" writes on behalf of Samuel Louis despite Sgt Jenkinson having understood him to be the landlord. (I am bound to say, more generally, that it is puzzling how "Luke" is referred to at different times as landlord, solicitor and managing agent, and how rent is in fact paid to an "L Ukono": the relationships involved are far from transparent. But that in itself cannot be held against the Appellant.) Perhaps more significantly, Luke says that he understands that Sgt Jenkinson was looking for "Mr Collins" (i.e. a surname) and "Margarete" (not Kozo, or even Bernadette). It is impossible to disentangle the confusion – but that is precisely the point. I am more doubtful whether the letter from the landlord (para. 30) advanced the Appellant's case, though it is unsatisfactory that the Judge does not refer to it. Quite apart from its late production, it seems to refer to both the Appellant and Ms Raducanou as paying rent, which contradicts what appears from the bank statements; and its apparent statement that they both remain occupiers of the premises is inconsistent with the Appellant's evidence that Ms Raducanou had moved out months previously. But if the appeal succeeds, as I believe it does, on the first limb, any problems that the Appellant might have in relation to the second limb are immaterial.
45. I would not want it to be thought that I was blind to the unsatisfactory features of the evidence adduced by the Appellant as well as that adduced by UKBA. Even given the late disclosure of the police report, it is odd that Samuel Louis did not produce their own account of what they told Sgt Jenkinson, and why, or produce a statement from the landlord. It would also have been better to have had a statement from Ms Raducanou, or at least an explanation of why that was not possible, and/or other material showing that she and the Appellant had indeed lived together as a couple: it would be surprising if there was none. But the case had to be decided on the basis of the evidence that there was. The burden was on UKBA to make good its positive case that the Appellant and Ms Raducanou never lived together at 23 Manor Grove; and for the reasons which I have given I do not believe that the very limited evidence which it produced was capable of overcoming the inference to the contrary that plainly arises from the contemporary documents.
46. I would allow the appeal and hold that, since it is not disputed that the Appellant was married to Ms Raducanou and the genuineness of that marriage has not been successfully impugned, he was entitled to a residence card.

Lord Justice Vos:

47. I agree.

Lord Justice Moore-Bick:

48. I also agree.