(Immigration and Asylum Chamber) Appeal Number: EA/01734/2018
THE IMMIGRATION ACTS
Heard at Manchester Civil Justice Centre
Decision & Reasons Promulgated
On 15 July 2019
On 13 August 2019
UPPER TRIBUNAL JUDGE PLIMMER
ENTRY CLEARANCE OFFICER
For the Appellant: None
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer
DECISION AND REASONS (given ex tempore)
1. The respondent is a citizen of Ukraine who made an application for an EEA family permit in order to enter the United Kingdom as the wife of Mr [D], a Bulgarian citizen. Mr [D] ('the sponsor') has been exercising Treaty rights in the United Kingdom since at least September 2013 having been employed as a butcher.
2. In a decision dated 15 January 2018, the appellant ('the ECO') refused to grant Ms [Z] an EEA family permit. Although the ECO accepted that the marriage had taken place on 15 December 2017, he was concerned that there was limited communication between husband and wife when they were in a relationship prior to 2017 and it would have been more usual to see evidence of communications regarding the relationship said to have started back in 2007. The ECO then said this:
• In light of all of the above this leads me to doubt that your relationship with your sponsor is as stated.
• In view of your failure to provide satisfactory evidence I am not satisfied that you are the family member of an EEA national in accordance with Regulation 7 of the Immigration (European Economic Area) Regulations 2016.
• I therefore refuse your EEA family permit application because I am not satisfied you meet all the requirements of Regulation 12.
3. This was considered by an Entry Clearance Manager ('ECM') on 23 November 2018. The ECM noted the concerns in the initial refusal letter and re-emphasised that there was insufficient documentary evidence to be satisfied that the parties were in a genuine and subsisting relationship or that they intended to reside together permanently in the United Kingdom.
4. Ms [Z] appealed to the First-tier Tribunal ('FtT'), which considered her appeal on the papers and without a hearing on 24 October 2018. The papers available to the FtT included the marriage certificate which confirms that a marriage between the parties took place and was registered on 15 December 2017, as well as evidence to support Ms [Z]'s claim that she was pregnant at the time she made her application.
5. The FtT described the issue in dispute before it as being whether or not the relationship between the parties is genuine and subsisting. The FtT acknowledged that there were messages between the parties that were not in English and there was an absence of photographs, but nevertheless found that there was sufficient evidence that the relationship was genuine and subsisting because it viewed messages between the parties. The FtT therefore reached the conclusion that the couple had maintained contact and the relationship was genuine and subsisting. For those reasons the FtT allowed the appeal.
6. The ECO appealed against that decision submitting in summary that the FtT failed to give adequate reasons for its conclusion bearing in mind the fact that the messages were not translated and there were large gaps in the evidence regarding the relationship prior to the marriage.
7. In a decision dated 12 December 2018 FtT Judge O'Brien granted permission to appeal to the Upper Tribunal ('UT') and the matter now comes before me.
8. At the beginning of the hearing I enquired of Mr Bates whether the issue in dispute was in fact, as the ECM tended to indicate, whether or not the relationship was a genuine and subsisting one or whether or not ECO's position was that the marriage was one of convenience. Mr Bates invited me to find that the only possible reason for the refusal of the EEA family permit must have been the contention that the marriage was one of convenience. That was not the interpretation that the FtT took of the decisions before it but in any event after hearing from the sponsor, I indicated that I accepted the submission that the FtT did not give adequate reasons for its conclusion that the relationship was genuine.
9. In those circumstances I invited Mr Bates and the sponsor to agree to me re-making the decision myself. They both agreed. Mr Bates cross-examined the sponsor briefly. The sponsor provided a translated copy of his and the appellant's child, who was born on 16 April 2018. He was unable to provide an original. The sponsor also provided a number of photographs taken of the family when he visited the appellant and his child in Ukraine in April 2019, that is for the child's 1 st birthday. Having seen that evidence Mr Bates did not seek to persuade me that the relationship and the marriage was anything other than genuine and that he submitted that I should determine the appeal accordingly. Mr Bates acknowledged that the only issues in dispute is whether the marriage is one of convenience and he was unable to take me to any evidence to displace the burden upon the ECO in this respect.
10. For the avoidance of doubt, where it is that an EEA citizen family member applies for entry clearance in order to enter the UK, she needs to establish first of all that she is a family member and second, that her EEA national spouse has been residing in the United Kingdom in accordance with treaty rights - see Regulation 12 of the Immigration (EEA) Regulations 2016 ('the 2016 Regulations'). In order to be a family member a person qualifies if they are a spouse - see Regulation 7. A spouse does not include a party to a marriage of convenience - see Regulation 2. The 2016 Regulations do not define a marriage of convenience. That, however, is set out within the overarching Article 1 of EC Council Resolution 97/C382/01 of 4 December 1997. That Article defines a marriage of convenience as follows:
"A marriage concluded between a national of a member state or third country national legally resident in a member state and a third country national with the sole aim of circumventing the Rules on entry and residence of third country nationals and obtaining for the third country national a residence permit or authority to reside in the member state".
11. It is well-known that the burden of proof of establishing that a marriage is one of convenience rests on the Secretary of State, see Rosa v SSHD  EWCA Civ 14. At  of Rosa Richards LJ said that in his judgment the legal burden lies on the Secretary of State to prove that an otherwise valid marriage is a marriage of convenience so as to justify the refusal of an application for a residence card under the EEA Regulations. Pausing there, we know that if the Secretary of State displaces the legal burden the evidential burden then rests on the person who is alleging that the marriage is not one of convenience.
12. At  of Rosa Richards LJ also said this:
"It may be useful to contrast a marriage of convenience with a genuine marriage, indeed Underhill LJ treated them as antonyms at paragraph 6 of his judgment in Agho, but the focus in relation to a marriage of convenience should be on the intention of the parties at the time the marriage was entered into, whereas the question whether a marriage is subsisting looks to whether the marital relationship is a continuing one".
In short, a marriage of convenience may exist despite the fact that there is a genuine relationship.
13. On the evidence that I have heard and that is available in the file of papers before me, I am satisfied that the ECO has not been able to displace the burden of establishing that the sole reason for entering the marriage was in order to circumvent the relevant Rules on entry and residence. Indeed, in this case I am satisfied from the clear and consistent evidence provided by the sponsor, that the marriage was entered into in good faith and was not a marriage of convenience. Mr Bates did not argue otherwise. For the avoidance of doubt I am also satisfied from the evidence available that the marriage is genuine and subsisting. That is evidenced by the fact that Ms [Z] was pregnant when she made her application and has given birth to the sponsor's child in April 2018 and he has visited them in April 2019.
14. I set aside the decision of the FtT and I re-make the decision by allowing Ms [Z]'s appeal.
UTJ Plimmer 6 August 2019
Upper Tribunal Judge Plimmer