Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00259/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 November 2016
On 10 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHAERF

Between

Omaima Bakour
(anonymity ORDER NOT MADE)
Appellant
and

ENTRY CLEARANCE OFFICER-ISTANBUL
Respondent

Representation:
For the Appellant: Mr A Moran of Alex Moran, Legal Representatives
For the Respondent: Mr P Duffy of the Specialist Appeals Team

DECISION AND REASONS

The Appellant
1. The Appellant is a citizen of Syria born on 30 January 1995. On 15 March 2014 in Sarakeb in Idlib where they had both been born she married Anas Zakaria, a Syrian national whose date of birth is given as 1 January 1987.
2. On 23 November 2011 the Respondent refused the Appellant's application for entry clearance under paragraph 352A of the Immigration Rules to join her husband who had left Syria on or about 5 April 2014, some 3 weeks after the wedding, and who had had been recognised in the United Kingdom as a 1951 Convention refugee.
3. On 23 November 2015 the Respondent under reference 1408562 refused the Appellant entry clearance because she was not satisfied the marriage between her and her husband who is her sponsor was subsisting.
The First-tier Tribunal proceedings
4. On 29 December 2015 the Appellant lodged notice of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 as amended. The grounds assert the Appellant's marriage is subsisting and request the appeal be determined on the basis of the papers in the Tribunal file and without a hearing. The bulk of them address the issue whether the marriage was genuine which the Respondent had already accepted. Reference was made to the submission of further evidence, and in particular mention was made that the Appellant and her husband had maintained contact on a regular basis by use of WhatsApp calls and messaging.
5. On 23 May 2016 the decision of Judge of the First-tier Tribunal Row was promulgated dismissing the appeal, principally on grounds of an absence of any evidence of contact between the Appellant and her husband either before or after the marriage. This included the absence of any evidence of the contact referred to in the Grounds of Appeal.
6. On 6 October 2016 Judge of the First-tier Tribunal Chambers granted the Appellant permission to appeal in the light of what the Appellant had said about the failure to file with the Tribunal evidence of the WhatsApp calls. The Grounds asserted that the failure to file such evidence was that of the Appellant's then solicitors.
The Upper Tribunal proceedings
7. By the time of the hearing a copy of the WhatsApp call records between the Appellant and her husband for the periods 16 December 2014-21 January 2015 and 9 January-8 June 2016 were in the Tribunal file.
8. It is not the function of the Tribunal to determine the dispute between the Appellant and her former solicitors as to why and who is to blame for the WhatsApp call records not being before Judge Row. The fact is that they are now available and the consequence is that the hearing in the First-tier Tribunal through no-fault of the Judge does not bear the hallmark of justice having been not only been done but seen to be done. For this reason referred to in the Permission to Appeal, I find that there is a material error of law in the First-tier Tribunal's decision.
9. The parties agreed, in my view rightly and properly, that the sole issue was the subsistence of the Appellant's marriage and that in the light of the other evidence the production of records of the extensive daily contact between the Appellant and his wife was sufficient on the balance of probabilities to establish that the marriage had been and continued to be subsisting. In the circumstances in response to a question from me, each representative confirmed there was no objection to proceeding to deal with the substantive appeal and that he had no further submissions.
10. Accordingly, I allow the appeal on immigration grounds.
11. I was informed that after making her application in Istanbul, the Appellant had returned to Idlib. I am aware that this city has been fought over by competing factions in the Syrian civil war from early days and that it has changed hands on a number of occasions. In this light, I would request the Respondent to use all reasonable endeavours to ensure the early issue to the Appellant of the requisite documentation to enable her to travel to the United Kingdom to join her husband whom she has not seen since some 3 weeks after their wedding on 15 March 2014.
Anonymity
12. There was no request for an anonymity order or direction and having considered the appeal I find there is no need for one.
SUMMARY OF DECISION
The 1st-tier Tribunal decision contained an error of law such that it cannot stand. The following decision is substituted: -
The appeal of the Appellant is allowed on immigration grounds

Signed/Official Crest Date 09. xi. 2016

Designated Judge Shaerf
A Deputy Judge of the Upper Tribunal

Notice to the Respondent: Fee Award
The appeal has been allowed and so I have considered whether a fee award should be made. It was not suggested that the evidence of continuing contact between the Appellant and her husband was produced to the Respondent who therefore had reason to find the marriage was not subsisting. The appeal has been allowed on basis of this later evidence and in these circumstances it is not appropriate to make to make a fee award.

Signed/Official Crest Date 09. xi. 2016

Designated Judge Shaerf
A Deputy Judge of the Upper Tribunal