ON APPEAL FROM the Upper Tribunal (Immigration and Asylum Chamber)
Upper Tribunal Judge McGeachy
Strand, London, WC2A 2LL
B e f o r e :
(Vice President of the Court of Appeal – Civil Division)
LORD JUSTICE UNDERHILL
LORD JUSTICE VOS
| COLLINS AGHO
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Mathew Gullick (instructed by the Government Legal Department) for the Respondent
Hearing date: 28th July 2015
Crown Copyright ©
Lord Justice Underhill:
"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.
PRELIMINARY: THE BURDEN AND STANDARD OF PROOF
"… [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.
"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
"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.
"I attended the address at 23 Manor Grove on Tuesday 18th 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).
(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.
THE DECISION OF THE FTT
"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 18th 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".)
(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.
THE APPEAL TO THE UT
"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.
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.
"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.
There is no reference to the application, or to this document, in the determination of the UT.
(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.
(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.
(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.
(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.
Lord Justice Vos:
Lord Justice Moore-Bick: