The Secretary of State for the Home Department v Ramadan Maher Hafez Mohamed Elais

A fair hearing requires the judge to facilitate cross-examination without undue interruption. During evidence, the judge’s role is principally supervisory. Interventions which prevent relevant questioning may render proceedings unfair, particularly where they arise from a misunderstanding of the applicable law or the burden of proof.

A post-implementation-period marriage cannot constitute a new matter in an appeal concerning a pre-implementation-period application for a residence card as a durable partner under the Immigration (European Economic Area) Regulations 2016. It may be evidence of the existence and durability of the earlier relationship. The applicant bears the burden of proving both partnership and durability. The genuineness and subsistence of the marriage may therefore be examined without applying the EU-law jurisprudence on marriages of convenience.

The Secretary of State appealed against a decision of First-tier Tribunal Judge Knight dated 21 January 2022, which had allowed the respondent’s appeal against refusal of his application for a residence card as the durable partner of a Romanian national under regulation 8(5) of the Immigration (European Economic Area) Regulations 2016.

The application and refusal pre-dated the end of the implementation period on 31 December 2020, but the respondent married the sponsor civilly in May 2021. The First-tier Tribunal treated the marriage as evidence of durability, but prevented questioning directed to its genuineness and subsistence. The central issues were whether the marriage was a new matter and whether the conduct of the hearing was unfair or gave rise to apparent bias.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law. It was set aside with no findings of fact preserved, and the appeal was remitted to the First-tier Tribunal to be heard by a different judge.
2. The Upper Tribunal distinguished apparent bias from unfairness. Apparent bias asks whether the fair-minded and informed observer would conclude that there was a real possibility of bias. Fairness is an objective question as to whether the hearing was fair. The First-tier Tribunal judge’s conduct did not establish apparent bias because his interventions were attributable to a misunderstanding of the law rather than prejudice unconnected with the merits.
3. Nevertheless, the hearing was unfair. The judge interrupted cross-examination on cohabitation and the civil marriage, prevented relevant questions from being pursued, and wrongly treated the genuineness of the relationship as undisputed. Cross-examination is an important means of testing evidence, and judicial intervention during evidence must remain principally supervisory.
4. The judge was correct that the post-implementation-period marriage was not a new matter. The preserved appeal jurisdiction concerned rights under the EU Treaties as modified by the withdrawal agreement. A marriage occurring after the implementation period could not itself create a breach of those preserved rights. It was, at most, evidence bearing on the prior existence and durability of the claimed relationship.
5. The applicant bore the legal burden under regulation 8(5) of proving both that he was the sponsor’s partner and that the relationship was durable. The Secretary of State was entitled to challenge both limbs and to scrutinise whether the later marriage was genuine and subsisting. The EU-law principles concerning marriages of convenience did not govern that evidential assessment.

• First-tier Tribunal: Judge Knight allowed the respondent’s appeal against refusal of his residence-card application in a decision dated 21 January 2022.
• Upper Tribunal (Immigration and Asylum Chamber): The appeal was allowed. The First-tier Tribunal’s decision was set aside with no findings preserved, and the matter was remitted for rehearing by a different judge.