Mazhar Hassan Saeed v The Secretary of State for the Home Department [2022] UKUT 18 (IAC)

[2022] UKUT 00018 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Date 11 November 2021
THE IMMIGRATION ACTS
Before
UPPER TRIBUNAL JUDGE McWILLIAM
Between
Mr Mazhar Hassan SaeedAppellant(ANONYMITY DIRECTION not made)AppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentMr R De Mello, Counsel, instructed by Law Fare Solicitors for AppellantMs A Everett, Home Office Presenting Officer for Respondent(i) There are different tests to determine whether a marriage is a “sham” or whether a marriage is one of convenience under EU law, in this case the 2016 Regs. The former is defined in s.24 (5) of the 1999 Act (see Molina) and requires the absence of a genuine relationship. In respect of the latter, the predominant purpose test applies (see Sadovksa).(ii) The terms “sham marriage” and “marriage of convenience” are not mutually exclusive. The absence of a genuine relationship at the time of the marriage being entered into would render the marriage one of convenience (and a “sham”); however, if there is a genuine relationship at the time of the marriage, while it could not be categorised as a “sham” marriage, it may still amount to a marriage of convenience (depending on the predominant purpose).(iii) When deciding whether a marriage is one of convenience under the 2016 Regs, a Tribunal should make clear findings about whether it is accepted that there was a genuine relationship between the parties to the marriage at the material time (the time of the marriage).(iv) There is deception deployed by a person who knowingly enters into a marriage of convenience with another in the absence of a genuine relationship. In the absence of a genuine relationship at the relevant time, a Tribunal may be entitled to infer that deception was exercised by the Appellant or the Sponsor or both. Depending on the facts there may be deception in a marriage of convenience.DECISION AND REASONS
[1]The Appellant is a citizen of Pakistan. His date of birth is 25 December 1987.[2]The Appellant was granted permission by Deputy Upper Tribunal Judge Saffer on 19 July 2021 to appeal against the decision of the First-tier Tribunal (Judge R Hussain) to dismiss his appeal against the Secretary of State’s decision (on 10 March 2020)to refuse his application for indefinite leave to remain (ILR).[3]The Appellant came to the UK in 2008 as a student. He was granted periods of leave as a student to 30 December 2015. On 18September 2014 the SSHDmade a decision (the “s.10 decision”)under s.10 of Immigration and Asylum Act 1999 (the “1999 Act”) as a result of him having submitted a TOEIC certificate in support of an application for leave which according to the Respondent was fraudulent. After this date the Appellant made five applications for a residence card pursuant to the Immigration (European Economic Area) Regulations2016 (the“2016Regs”) all of which were rejected or refused by the SSHD.[4]The Appellant issued judicial review proceedings in respect of the s.10 decision on 15 October 2014. Permission was refused on the papers and following oral renewal. A further application was made by the Appellant to the Court of Appeal. While this application was pending,on 26 October 2016,the Appellant applied for an EEA residence card on the basis of his relationship with a Lithuanian national exercising Treaty rights, Ms Palabinskaite ( “the Sponsor”). This application was refused by the SSHD on 8 May 2016. The SSHD relied on the Appellant having used deception in relation to the fraudulent TOEIC certificate. The Appellant appealed against the decision of 8 May. He and the Sponsor had married on 26 August 2017. His appeal was dismissed under the 2016 Regs by the First-tier Tribunal (Judge Twydell) in a decision dated 14 February 2019. Judge Twydell found that the Appellant and the Sponsor’s marriage was a marriage of convenience. However, Judge Twydell found that the Appellant had not submitted a fraudulent TOEIC certificate in support of a previous application for leave.[5]In respect of the judicial review, on 4 February 2020 the Court of Appeal approved a consent order that had been agreed by the Appellant and the SSHD, following Judge Twydell’s decision that the Appellant had not submitted a fraudulent TOEIC. The SSHD agreed to, amongst other things, rescind the s.10 decision and to reinstate the Appellant’s leave to allow him to make a further application for leave to remain (LTR).[6]The Appellant made an application for ILR. The SSHD refused the application on 10 March 2020 on the basis that Judge Twydell found that the Appellant had entered into a marriage of convenience and the SSHD’s view is that the Appellant had made a false representation, therefore his application was refused pursuant to paras. 276B (ii)and (iii), 322(2), 322(5) and 322(13)of the Immigration Rules (IR). The decision maker stated that the Appellant; “failed to establish that your relationship with Ms Palabinskaite was genuine and your claim for a EEA Residence Card was refused by the Home Office and your appeal was dismissed by an Immigration Judge at the First Tier. Your behaviour whilst resident in the United Kingdom does not reflect well on you …”.[7]It is the view of the Secretary of Statethat the Appellant “made false representations in order to obtain documents to remain in the United Kingdom.” The false representations were those relating to the Appellant’s relationship with the Sponsor.

The decision of Judge Hussain

[8]Before Judge Hussain, the SSHD no longer relied on para. 322 (13) of the IR. Furthermore, it was accepted that the Appellant had 10 years lawful continuous residence.[9]The Appellant’s position was that the SSHD was prevented from relying on Judge Twydell’s decision following the consent order. The judge rejected the Appellant’s representative’s submission, for the following reasons:- “19. I do not accept the Appellant’s submissions on this point. The consent order dated 4.2.2020 related specifically to the Appellant’s application for JR (which after being initially refused was appealed against) which sought to quash the Respondent’s decision dated 18.9.2014 which had invalidated his earlier leave. In fact the terms upon which the Respondent was seeking to settle the Appellant’s JR review application are set out at paragraph 11 of the statement of reasons which states: ‘11. Since the FtT decision cleared the Appellant of TOEIC deception on appeal, the Respondent has agreed to take reasonable steps to put the Appellant into the position he would have been in, had that allegation and the Section 10 decision not been made. In the absence of some new factor justifying a different course, that will consist of: a) the Respondent rescinding the Section 10 decision that is the subject of this judicial review challenge; b) the Respondent treating the Appellant as though he had continuous LTR since 18 September 2014 (and any earlier period as may be established); c) the Respondent granting the Appellant a reasonable opportunity (being not less than 60 days) to submit an application for further LTR; d) the Respondent waiving any fee or charge, including any health surcharge, that might be payable for making such an application’.20. There is no mention either in the statement of reasons as above or in the consent order dated 4.2.2020 of the findings of the Appellant having entered into a marriage of convenience. The only reference to those proceedings is stated at paragraph 7 of the statement of reasons.This merely acknowledges the context within which the relevant findings favourable to the Appellant’s JR application and the proposed concession as set out in paragraph 11. The Respondent does however note that the Appellant was no longer seeking permission to appeal the decision of FtTJTwydell (namely the adverse decision and findings relating to the Appellant having entered into a marriage of convenience).21. For the above reasons I do not accept that the Respondent is prevented from relying upon the finding made by FtTJTwydell that the Appellant had entered into a marriage of convenience which meant that he made false representations in relation to his application for a residence card. No (sic) is there any unfairness to the Appellant by the Respondent doing so.”[10]The judge noted that the Appellant did not challenge the finding that he had entered into a marriage of convenience.At [para. 23] the judge found that;- “…In making and pursuing that application, he was aware that his marriage/relationship with Miss Palabinskaite was not genuine. This was dishonest and amounted to sufficiently reprehensible conduct that makes it undesirable for the Appellant to be granted leave to remain in the UK. There is nothing in the Appellant’s conduct in relationto pursuing the residence card that could suggest it was a genuine error or an innocent mistake. Indeed this was one of many applications he had made for a residence card. I do not find that there are any facts peculiar to the Appellant that suggests that the paragraph 322(5) should not be applied”[11]The judge went on to consider the appeal under Article 8 with reference to paragraph 276ADE of the IR and concluded that there were no “obstacles that prevents the Appellant’s integration back into Pakistan”. He said that in any event given his findings in relation to para. 322(5) of the IR the Appellant falls to be refused on suitability grounds.[12]In relation to the proportionality exercise the judge found that there were no “compelling circumstances which have not already been considered under the Immigration Rules”. He set out the case of R v Secretary of State for the Home Department ex parteRazgar[2004] UKHL 27; [2004] 2 AC 368; [2004] 3 WLR 58; [2004] 3 All ER 821; [2004] Imm AR 381; [2004] INLR 349.He concluded that there was an interference with the Appellant’s private life however that the interference was proportionate, taking into account the factors in s.117B of the Nationality, Immigration and Asylum Act (NIAA)2002 Act.[13]The judge rejected Mr de Mello’s suggestion of “historic injustice” based on the Appellant’s leave having been curtailed by the decision of the Secretary of State on 18 September 2014. He found that even if he was wrong about that, in the light of the Appellant having “employed dishonesty in entering into a marriage of convenience”, this weighed heavily against him in the proportionality assessment (see para. [34]).

The Grounds of Appeal

[14]Ground 1 asserts that “the judge erred in concluding the consent order did not prevent theRespondent from goingbehind the terms of the consent orderand refusing to grant him appropriate leave to remain”. The terms of the consent order are set out in the grounds as follows:- “Since the FtT decision cleared the Appellant of TOEIC deception on appeal, the Respondent has agreed to take responsible steps to put the Appellant into the position he would have been in, had that allegation and the s.10 decision not been made. In the absence of some new factor justifying a different course …”[15]It was common ground that at the time of signing the consent order the SSHD was aware of Judge Twydell’s findings about the Appellant’s marriage and that since then there was no adverse change of circumstances to warrant a departure from the consent order.[16]Ground 2 asserts that the judge was wrong to consider the Appellant’s marriage as a sham marriage, as opposed to a marriage of convenience and failed to distinguish the qualitative difference between the two. It does not follow from Judge Twydell’s decision that the Appellant made false representations. An Appellant may innocently believe his marriage is genuine but still it may be characterised by a judge as one of convenience.[17]Ground 3 asserts that in concluding that the Appellant’s marriage is not genuine, the conclusion that the Appellant’s conduct “amounted to sufficiently reprehensible conduct making him of undesirable character” does not automatically follow. The judge was wrong to consider the Appellant’s marriage as a sham as opposed to a marriage of convenience. The case ofR (on the application ofMolina) vSecretary of State [2017] EWHC 1730 is relied on.Judge Grubb considered the statutory definition of “sham marriage” and concluded that a sham marriage can only be established if there is no genuine relationship between the parties, whereas the hallmark of a marriage of convenience is one that has been entered into for the purposes of gaining an immigration advantage. This means that a marriage of convenience may exist where there is a genuine relationship if the sole aim of at least one of the parties is to gain an immigration advantage.Judge Grubb held [para. 73] as follows:- “73. In short, therefore a ‘marriage of convenience’may exist despite the fact that there is a genuine relationship and in the absence of any deception or fraud as to its existence. The focus is upon the intention of one or more of the parties and, in the present context, whether the sole aim is to gain an immigration advantage …”.

The Immigration Rules (IR)

[18]The SSHD’s decision was made under para 276B of the IR which contains the requirements to be met by an applicant for indefinite leave to remain on the ground of long residence. It reads as follows:-(i) (a) he has hadat least 10 years continuous lawful residence in the United Kingdom.(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his: (a) age; and (b) strength of connections in the United Kingdom; and (c) personal history, including character, conduct, associations and employment record; and (d) domestic circumstances; and (e) compassionate circumstances; and (f) any representations received on the person’s behalf; and(iii) the applicant does not fall for refusal under the general grounds for refusal(iv) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where – (a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or (b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.[19]The relevant general grounds of refusal relied on by the SSHD are paras. 322 (2) and (5) of the IR.[20]Para. 332 (2) provides a discretionary ground for refusal based on:
“ the making of false representations or the failure to disclose any material fact for the purpose of obtaining leave to enter or a previous variation of leave or in order to obtain documents from the Secretary of State or a third party required in support of the application for leave to enter or a previous variation of leave”
[21]Para. 332 (5) providesa discretionary ground for refusal based on:
“the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations or the fact that he represents a threat to national security”

Submissions

[22]I heard submissions from the parties. Mr De Mello relied on the grounds of appeal. He submitted that the judge erred in failing to distinguish between a marriage of convenience and a sham marriage. If the Appellant was aware that the marriage was not genuine then Mr De Mello accepted that his behaviour would be sufficiently reprehensible but this was not the finding of Judge Twydell. The SSHD did not consider the consent order in her decision.[23]The judge said that the underlying facts were not in dispute; however, this was not the case.He was wrong to characterise the marriage as a shamwhich was not accepted by the Appellant. The Appellant’s evidence, in his witness statement dated 27 March 2021,is that the relationship was genuine.[24]Ms Everett accepted that there is a distinction between a marriage of convenience and a sham. Judge Twyndellfound that the marriage was one of convenience. However, whatever the case, there was dishonesty by the Appellant. The consent order concerned the TOEIC only.

Discussion

[25]Regulation 2 of the 2016 Regs defines a marriage of convenience as follows :
“marriage of convenience” includes a marriage entered into for the purpose of using these Regulations, or any other right conferred by the EU treaties, as a means to circumvent – (a) immigration rules applying to non-EEA nationals (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or (b) any other criteria that the party to the marriage of convenience would otherwise have to meet in order to enjoy a right to reside under these Regulations or the EU treaties.”
[26]In Molinathe High Court considered whether there was a difference between a ‘sham marriage’ and a ‘marriage of convenience’. Judge Grubb considered the statutory definition of ‘sham marriage’ in s. 24(5) of the 1999 Act, which requires:a. The absence of a genuine relationshipb. One or both parties to enter into the marriage to avoid immigration law or the Immigration Rules and/or to obtain a right conferred by law or those Rules to reside in the UKc. One or both parties to be a citizen of a country other than the UK, an EEA state or Switzerland.[27]The Judge then considered the definitions of ‘marriage of convenience’ in the 2016 Regs and the definition in Article 1 of Council Resolution 12337/97’, which refers to ‘a marriage concluded…with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining…a residence permit or authority to reside’. The latter definition had been applied by the House of Lords in R (on the application of Baiai and Others) v Secretary of State for the Home Department[2008] UKHL 53; [2009] 1 AC 287; [2008] 3 WLR 549; [2008] 3 All ER 1094.and the Court of Appeal in Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14; [2016] 1 WLR 1206; [2016] 2 CMLR 15; [2016] Imm AR 402; [2016] INLR 514.He concluded that a ‘sham marriage’ can only be established if there is no genuine relationship between the parties; whereas the ‘hallmark of a marriage of convenience is one that has been entered into… for the purpose of gaining an immigration advantage’ [para. 64]. This means that a ‘marriage of convenience’ may exist where there is a genuine relationship if the sole aim of at least one of the parties is to gain an immigration advantage [para. 73].[28]In Sadovskaand Another v Secretary of State for the Home Department[2017] UKSC 54; [2017] 1 WLR 2926; [2018] 1 All ER 757; [2018] 1 CMLR 37; [2017] Imm AR 1473; [2017] INLR 944, Baroness Hale considered the approach to marriages of convenience, finding that earlier definitions had been moderated by the Commission’s 2014 Handbook, such that the predominant, rather than sole, purpose of the marriage should be to gain rights of entry/ residence. Incidental immigration and other benefits (e.g. tax advantages) that a marriage may bring are not relevant, if this is not the predominant purpose of at least one party to the marriage [para. 29].[29]From the case law I draw the following conclusions:- (i). There are different tests to determine whether a marriage is a “sham”or whether a marriage is one of convenience under EU law, in this case the 2016 Regs. The former is defined in s.24 (5) of the 1999 Act (see Molina) and requires the absence of a genuine relationship. In respect of the latter, the predominant purpose test applies (see Sadovksa). (ii). The terms “sham marriage” and “marriage of convenience” are not mutually exclusive. The absence of a genuine relationship at the time of the marriage being entered into would render the marriage one of convenience (and a “sham”); however, if there is a genuine relationship at the time of the marriage, while it could not be categorised as a “sham” marriage, it may still amount to a marriage of convenience (depending on the predominant purpose). (iii). When deciding whether a marriage is one of convenience under the 2016 Regs, a Tribunal should make clear findings about whether it is accepted that there was a genuine relationship between the parties to the marriage at the material time (the time of the marriage). (iv). There is deception deployed by a person who knowingly enters into a marriage of convenience with another in the absence of a genuine relationship. In the absence of a genuine relationship at the relevant time, a Tribunal may be entitled to infer that deception was exercised by the Appellant or the Sponsor or both. Depending on the facts there may be deception in a marriage of convenience.