Tribunal decisions

The decision

Asylum and Immigration Tribunal
BK and Others (Spouses: Marriage-meaning of ‘subsisting’) Turkey [2005] UKAIT 00174

THE IMMIGRATION ACTS

Heard at Field House
Heard on: 28 November 2005

Determination issued:
Prepared 6 December 2005

13 December 2005
Before:

Ms C Jarvis
Senior Immigration Judge
Dr J O de Barros
Mr C P O’Brian

Between

Appellants

and

Entry Clearance Officer Ankara
Respondent

Representation:
For the Appellant: Ms L Hooper of Counsel instructed by Wilson and Co. Solicitors
For the Respondent: Mr A Johnson, Home Office Presenting Officer

This case is reported for what we say about the meaning of ‘subsisting’ in relation to marriage within Part 8 of the Immigration Rules HC395, Family Members. A marriage is subsisting for the purposes of these Rules if it has been lawfully entered into and has not thereafter been lawfully dissolved or annulled.
DETERMINATION AND REASONS

1. The Respondent appeals against the determination of an Immigration Judge, (Mr A C B Markham David) who in a determination issued on 14 April 2005, allowed the Appellants’ appeals on all grounds against the Respondent's decision made on 13 July 2004 to refuse to grant entry clearance to the UK as the spouse and children of [ ], their husband and father respectively, who is their sponsor, for family reunion and settlement, the sponsor being recognized as a refugee in the UK.

2. The history if the matter is this. The Appellants, all citizens of Turkey, whose dates of birth are given as 8 August 1963, 6 December 1987, and 15 March 1996 respectively, applied for entry clearance on 13 April 2004. The first Appellant was interviewed on 13 July 2004, following which the applications were refused for the reasons set out in the notice of decision, namely that the first Appellant had not shown that she was married to a person granted asylum in the UK, nor that each of the parties to the marriage intends to live with the other as his or her spouse and that the marriage is subsisting.

Summary of the Immigration Judge’s Findings

3. The Immigration Judge found, for the reasons set out at paragraphs 22-30, that the Appellants’ evidence was to be regarded as credible and reliable and that satisfactory explanations had been provided for the doubts and concerns of the Respondent, which had been understandable in the light of the information that was presented to him, in particular the completed asylum statement of evidence form in which the sponsor or his advisers had ticked a box describing himself as single. Further, the first Appellant did not have with her, at the time of interview, documentary evidence to provide to support some of her claims about the relationship, and some of the information that she gave at interview with the Respondent was different from that given by the sponsor in relation to the sponsor’s journey to the UK.

4. The Immigration Judge received further oral and documentary evidence, including documentary evidence relating to the marriage (including the marriage and family book), and the children of the family. He also received as oral evidence from the sponsor, his brother and two cousins. All the evidence sufficed to satisfy him on the balance of probabilities that the Appellants had made good their applications under the Immigration Rules. He also had the benefit of seeing a long letter from the first Appellant to the sponsor, which he found to be genuine and cogent evidence of a genuine marriage and supportive of an intention on the part of the parties to the marriage to live together permanently as husband and wife.

5. He found that the first Appellant and the sponsor were married in Turkey on 5 June 1991, and that there was no doubt, as at the date of application, date of decision and date of hearing, that the marriage was subsisting. He found that a marriage is subsisting if it has been lawfully entered into and has not thereafter been lawfully dissolved or annulled.

6. There are two children of the family, the second Appellant being the daughter of the first Appellant’s first marriage which ended in divorce. The second child is a son,[ ], born on 15 March 1996 (the third minor Appellant). It seems, although it is unclear, that he is a formal appellant in these proceedings. We say that it is unclear because the appeal forms do not seem to be in the court bundles and there is little or no mention of him save at paragraphs 28 and 29 of the Immigration Judge’s determination, when he finds that [ ] falls within the requirements of paragraph 352D of HC 395. The point is to an extent academic given that he had also found in favour of his mother and older sister, and that the grounds of appeal, strictly speaking, relate only to the first Appellant. Before us, Ms Hooper was under the impression that she was appearing only for the first Appellant, although she later agreed that she was instructed on behalf of the second Appellant also.

7. However, noting that the notice of decision of the Respondent was to the First Appellant by name and her children, and the notice of appeal to the Immigration Judge is in the name of the first Appellant and children, we treat him here, in this appeal by the Respondent, as an Appellant before us.

The Grounds of Appeal

8. The grounds of appeal lodged by the Respondent are, in summary, that the Immigration Judge has erred in law in his definition of subsisting marriage (see paragraph 5 above : that a marriage is subsisting if it has been lawfully entered into and has not thereafter been lawfully dissolved or annulled).

9. It is submitted that the Immigration Judge has provided no basis in law for his definition. This failure, it is submitted, amounts to an error in law which renders his decision fatally flawed. It is submitted that the definition given by him is too broad and fails to address the issue that a marriage is a continuing process and partnership and not purely a contractual undertaking which remains extant if not dissolved.

10. The order for reconsideration was made by Mr R Chalkley on 11 May 2005 on 8 August 2005, in which he states that the grounds disclose an arguable error of law on the part of the Immigration Judge, since it might be suggested that, despite the fact that a marriage has been lawfully entered into, it is not subsisting if, for example, the parties had not lived with each other, seen each other or spoken to each other for several years.

Submissions

11. Mr Johnson submitted that Paragraph 281(iii) was the relevant Paragraph of HC395, and that it was clear from a reading of the Rule that it was necessary to show the future intention of the parties to the marriage to live together as husband and wife, and that the marriage was subsisting. It was all part of the same sub-paragraph and both needed to be satisfied. Ms Hooper interjected that the correct Paragraph of HC395 when dealing with family reunion for the spouse of a refugee was Paragraph 352A (iv). We agree. In relation to the sub-paragraph in question, the wording is the same as that in 281 (iii). Paragraph 352D is the relevant Paragraph so far as the second and third Appellants are concerned. Although, as we have indicated, there is no challenge to the decisions in respect of the two minor Appellants.

12. Mr Johnson submitted that the Immigration Judge’s definition of ‘subsisting’ was too wide and that ‘subsist’ meant more than that the marriage ‘exists’. It meant, he ventured, that the marriage must have some life, there must be something more than mere legal existence.

13. Mr Johnson was unable to produce any authority to support his proposition, nor did he develop his argument further, other than to say that if ‘subsist’ did not have the meaning that he had given it, then it would include marriages in which the relationship had broken down and that could not be right.

14. Mr Johnson added that doubt had been cast upon the nature of the relationship, and that the Immigration Judge was not entitled on the evidence to find that it was a genuine marriage and that the parties intended to live together. As the Immigration Judge had wrongly found that the marriage was subsisting, then he had had no power to go on to decide that the parties intended to live together.

15. We asked the parties to examine with us Paragraph 6 of the Immigration Rules HC395, which deals with matters of interpretation of the Rules. The Rules are silent as to the meaning of ‘subsisting’. They do, however, deal with intention to live together, which is to be demonstrated by ‘a clear commitment from both parties that they will live together permanently in the UK immediately following the outcome of the application in question or as soon as circumstances permit thereafter’.

16. Ms Hooper submitted that the Immigration Judge did not fall into error of law at all. She submitted that it was possible to intend to live together without there being any subsisting marriage. One could intend to live with another permanently as husband and wife even if not yet married. Once the marriage had been lawfully contracted, then it would be a subsisting marriage, until dissolved or annulled, as the Immigration Judge had found. There was nothing in the evidence to suggest that this was ever anything but a genuine marriage, albeit that it may have gone through a difficult patch.

17. If Mr Johnson were right, Ms Hopper submitted, then that would leave decision makers having to decide upon the meaning of more than ‘existing’ in law, in each case.

18. Even if the Immigration Judge were wrong in the precise wording of his definition of ‘subsisting’, this is not a material error as it is not capable of making any difference to the outcome.

19. Mr Johnson in reply said that it was for the Immigration Judge to decide upon the character of the marriage when deciding whether it was subsisting. He submitted that the threshold would be a minimal one, that it would be a question of fact for the Immigration Judge to decide.

20. At the conclusion of the hearing we indicated that we were not persuaded that the Immigration Judge had fallen into material error of law. We now give our written reasons for so finding.

Consideration and Findings

21. We remind ourselves that when hearing a case by way of reconsideration, the Tribunal must first decide whether or not the determination discloses a material error of law. It is only where that question is answered in the affirmative that it is open to the Tribunal to go on to consider what relief, if any, should be granted, and whether or not fresh evidence, if any, should be admitted.

22. We have before us all the evidence that was before the Immigration Judge, including the Home Office Bundle and the Appellant’s bundle.

23. It is plain that when dealing with reconsideration, the Tribunal is obliged to confine itself to the matters raised in the grounds of appeal. Here the issue is whether the Immigration Judge materially erred in law in defining ‘subsisting’ as he did.

24. We find that we prefer the submissions of Ms Hooper, which we concur with and adopt. We find that the enquiry into the ‘character’ of the relationship, as Mr Johnson put it, is to be conducted by the Entry Clearance Officer, other first instance decision maker, or by the Immigration Judge on appeal, at the point when considering whether the parties to the marriage intend to live together. We find that it is the answer to that question that is informed by matters going to the nature and quality of the relationship. We find support for that interpretation in the use of the word ‘intention’ of the parties, which indicates an examination of what is in the minds of the parties at material times, and consideration as to whether their actions can inform the findings and conclusion as to their intentions. In this case, that is exactly what the Immigration Judge did.

25. He noted that there had been a difficult patch since the parties have been apart due to the sponsor’s having claimed asylum. He found that it was clear that the enforced separation had caused problems. He went on to analyse and weigh the evidence that he received, and he found that despite those difficulties, it had been shown on balance that the parties intended to live together in accordance with the Rules, as at the date of application, decision, and as at the date of hearing. That aspect of his decision is not the subject of the grounds of appeal to this Tribunal, and it is not for us to examine it further. We just add for completeness that we take the view that it was open to him to find as he did in this regard.

26. We pointed out to the parties that the grounds had not sought to challenge the finding that the parties intend to live together, nor had it been argued that because the Immigration Judge’s definition of ‘subsisting’ was wrong, he was not entitled to embark upon the enquiry into the question whether the parties to the marriage intend to live together. It followed, in our view, that it was not open to the Respondent to seek to raise that at the hearing.

27. Further, we took the view that the Rule is written as it is for the reason that the first question to be answered is whether each of the parties to the marriage intends to live permanently with the other. The second question, that of whether the marriage is subsisting, is, in our view, by way of a double-check in relation to the legal status of the relationship, that is to say its framework, as opposed to the nature and quality of the substance of the relationship. For our part we find that it is not arguable that the Immigration Judge can be said to have erred in considering that aspect before coming to the words that follow the word ‘and’ in 352A(iv) to which Mr Johnson drew attention, in the second aspect of sub-paragraph (iv) of 352A.

28. We find that there is no support, whether in any jurisprudence, or in the content of the Rule itself, for the meaning of the word ‘subsists’ that Mr Johnson contends for. Nor is there support for the test that he suggests in order to show that a marriage subsists. It is difficult to conceive how such a test could operate. As Ms Hooper put it, would there be a requirement to show on balance that the parties were ‘desperately in love’, or would ‘just putting up with one another’ do? It is also difficult, we consider, to conceive what the purpose of such a test would be, as it would be bound, in our view, to cover an examination of many if not all of the same or similar matters to those considered in the first part of the sub-paragraph. It would be a double hurdle in effect, contained in Rules intended to promote family reunion.

29. We note that the Concise Oxford Dictionary, ninth edition, at page 1389 defines subsist as: ‘keep oneself alive; be kept alive; remain in being; exist; be attributable to; provide sustenance for.’

30. Thus, the ordinary meaning of the word includes the meaning ‘exist’. Mr Johnson sought to argue that it meant more than this. Again, we find that there is no support for his argument to be found in the ordinary meaning of the word.

31. We find that once having conducted the enquiry into the intention of the parties so far as their commitment to the relationship is concerned, the second part of the Rule requires enquiry into the question whether the marriage continues to exist in law. This, we suggest, completes the enquiry into the relationship, so that it is shown to have both the genuine substance of a committed relationship, with the intention that it should continue and be demonstrated through cohabitation, and the legal framework required to enable it to exist, or subsist, in law.

32. This is not the place in which to embark upon a consideration of the law relating to marriages, whether contracted under domestic or foreign law, and their continuing validity. Suffice it to say that 352A (i) requires the first Appellant to show that she is lawfully married to a person recognized as a refugee in the UK. The enquiry here is first as to whether an applicant has lawfully contracted a marriage, and second as to whether the marriage in question is to a person recognized as a refugee in the UK. The Immigration Judge found in her favour in that regard (see paragraph 5 above).

33. The enquiry to be conducted at the second aspect of paragraph 352A (iv), following the word, ‘and’, is that into the question whether the marriage shown to have been lawfully entered into at (i) has since been lawfully terminated or not. It is for an Appellant to show on balance that it has not.

34. We find that the place for the enquiry as to whether a marriage is one of convenience or is a mere shell, which we take to be the issue that is exercising the Respondent, is pursuant to the examination of the intention of the parties and of the outward manifestation of their commitment to one another and to the relationship.

35. For our part, on the basis of the evidence and the argument here received, we are in agreement with the Immigration Judge insofar as the definition of ‘subsisting’ is concerned, and we find that he did not fall into error of law.

36. Further, even if we are wrong, and ‘subsisting’ has the meaning contended for by Mr Johnson, we find that this would not amount to a material error of law by the Immigration Judge as the marriage is genuine and the parties intend to live together permanently, with their two children, the second and third Appellants. Mr Johnson accepted that he could not argue successfully that it was not open to the Immigration Judge to find as he did in relation to the first aspect of sub-paragraph (iv).

37. It follows, for all the foregoing reasons, that whilst the grounds of appeal were found to be arguable when the order for reconsideration was made, the Respondent has failed to show that the Immigration Judge fell into any material error of law. In the circumstances we are not entitled to go on to consider what if any relief should be granted to the Respondent. It has not been shown that there is any basis upon which the Tribunal may interfere with the Immigration Judge’s determination. We are not able to identify any material mistake of fact leading to unfairness.

Decision

38. For all the reasons set out above, it has not been shown that the Immigration Judge fell into material error of law. We therefore order that the determination of the Immigration Judge shall stand.

39. For clarity we note that the Immigration Judge allowed the appeal of each Appellant and he directed that entry clearances be granted forthwith.

40. There was no challenge in the grounds of appeal to his decisions in respect of the two child appellants. As this family has now been separated for a considerable period, we expect the Respondent to deal with the matter without any delay.

Catriona Jarvis
Senior Immigration Judge
Date: 6 December 2005

Paragraph 38 of this determination has been amended pursuant to the slip Rule; that is Rule 60 of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

Dated this 14th day of December 2005

Catriona Jarvis
Senior Immigration Judge