Mahmoud Ahmed Abdel-Samia Elsakhawy v The Secretary of State for the Home Department

1. This is the decision of the Tribunal, to which both members have contributed. The appellant appeals against the decision of First-tier Tribunal Judge Millar promulgated on 31 March 2016, in which the appellant’s appeal against the decision to give directions for his removal under section 10 of the Immigration and Asylum Act 1999 on the basis of abuse of rights under regulation 21B(2) of the Immigration (European Economic Area) Regulations 2006 (the “EEA Regulations”) dated 27 February 2015 was dismissed.

2. The appellant is a national of Egypt, born on 13 January 1987, who came to the United Kingdom briefly as a visitor in 2011 and entered again with entry clearance as a visitor in early 2012. Save for a brief visit to Egypt, he has remained in the United Kingdom since 2012, being granted an EEA Residence Card as the family member of an EEA national (Ewelina Wrzesniewska, whom he married on 28 March 2013) on 15 January 2014.

3. On 27 February 2015, the appellant was encountered by Immigration Officers at Denzil Road (who attended the premises to investigate the marriage of Mr Osaa Said Fetouh Hefnawy, an Egyptian national also married to a Polish national), which led to respondent’s decision.

4. The respondent set removal directions for the appellant under section 10 of the 1999 Act on the basis that his marriage to Ewelina Wrzesniewska (his “wife”) was a sham. The appeal

5. The appellant appealed the respondent’s decision on the basis that the appellant did not enter into a marriage of convenience and it was not for him to prove that he did not, the burden of proof being on the respondent who has failed to give adequate reasons for the decision made. The decision was further appealed on the basis that the decision was in breach of the rights of the appellant and his wife under the Community Treaties and in breach of Article 8 of the European Convention on Human Rights.

6. Although not forming part of the written grounds of appeal, an issue raised by the appellant before the First-tier Tribunal was the admissibility of evidence (or at least the weight to be attached to such evidence) obtained during the questioning of the appellant on 27 February 2015 on the basis of whether or not the questioning was properly conducted in accordance with the Immigration (PACE Codes of Practice) Direction 2013 (“PACE”) (or whether it needed to be so).

7. Judge Millar dismissed the appeal in a decision promulgated on 31 March 2016 on all grounds. Judge Millar found that the respondent had reasonable grounds to suspect a sham marriage and it was for the appellant to rebut those allegations and he did not do so on the evidence before the First-tier Tribunal.

8. Permission to appeal was sought on the basis that Judge Millar had failed to deal with the appellant’s submissions on PACE; failed to give adequate reasons; failed to apply the correct test for a marriage of convenience and made various errors of fact. Permission to appeal was granted by Judge Lambert on 23 August 2016 on all grounds.

9. In a decision promulgated on 7 October 2016 (attached as the first Appendix to this decision), Upper Tribunal Judge Rimington found an error of law in Judge Millar’s determination, further to which directions were issued on various dates to the parties for this re-making of the decision.