Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00769/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 13 June 2013
On 18 June 2013

Before

UPPER TRIBUNAL JUDGE MOULDEN

Between

MR AHMAD UMAIR AWAN
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Miah of counsel instructed by Sony Sadaf Haroon solicitors
For the Respondent: Ms J Isherwood a Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Pakistan who was born on 19 June 1987. He has been given permission to appeal the determination of First-Tier Tribunal Judge Oliver who dismissed his appeal against the respondent's decision of 1 November 2012 to refuse him indefinite leave to remain in the UK as the spouse of a person present and settled here under the provisions of paragraph 287 of the Immigration Rules.

2. The appellant arrived in the UK on 16 September 2006 on a student visa valid until 31 January 2010. On 6 July 2009 he submitted an application for leave to remain as a spouse. On 14 October 2009 leave was granted for a period expiring on 14 October 2011. After this expired, on 16 November 2011, the appellant made the application under appeal.

3. The respondent refused the application for indefinite leave to remain as a spouse having received a letter from the appellant’s wife in which she said that the marriage was no longer subsisting, she no longer lived with the appellant and did not intend to live with him in the future.

4. The appellant appealed and the judge heard the appeal on 2 April 2013. The appellant was represented but the respondent was not. Both the appellant and his wife attended and gave evidence. The judge summarised their evidence in paragraphs 4 and 5 of the determination. In paragraph 6 he reminded himself that it was for the appellant to prove his case to the standard of the balance of probabilities. He assessed the evidence in paragraphs 7 and 8 before coming to the conclusion that the marriage was not subsisting. He dismissed the appeal under the Immigration Rules, including the Article 8 grounds.

5. The appellant applied for and was granted permission to appeal arguing that the judge erred in law by failing to give adequate reasons for rejecting the wife's evidence that the marriage was subsisting. Demeanour was not a good reason for the adverse credibility finding and demonstrated that the correct standard of proof had not been applied. Case law on the correct approach to assessing a subsisting marriage had not been applied.

6. The appellant attended the hearing before me. Mr Miah relied on the grounds and submitted that the behaviour of the parties at the hearing was not a indication on which the judge should have relied. She gave evidence that they were reconciled. The judge should have considered the quality of her evidence not her demeanour. There were no inconsistencies in her evidence and his evaluation of her evidence was flawed. I was asked to find that the judge erred in law and to set aside the decision.

7. Ms Isherwood submitted that there was no error of law. The wife's position at the hearing had to be compared and contrasted with the position she took when she wrote the letter to the respondent in November 2012. It was clear that the judge was entitled to and did take this into account. The history of the marriage was vital and there was a lack of explanation for the allegedly changed situation. There was also a lack of explanation as to the current circumstances of the marriage. She submitted that whilst demeanour on its own might not be sufficient the totality of the judge's reasoning supported his conclusion and there was no error of law.

8. In his reply Mr Miah argued that the evidence of the appellant and his wife was entirely consistent with the position that they were trying to reconcile and mend their marriage. I reserved my determination.

9. I find that the judge did not rely on demeanour alone in reaching his conclusion that the appellant had not established that the marriage was subsisting. Paragraph 7 of the determination has to be read as a whole. This experienced First-Tier Tribunal Judge was not assessing a relationship about which there were no more than suspicions or doubts. The appellant's wife could not have put the position more strongly than she did at the end of 2012. The respondent records her as saying that the marriage was no longer subsisting, she no longer lived with the appellant and did not intend to live with him in the future. The appellant has not questioned this summary of what she said or that this was the position at that time. In the circumstances the judge was clearly well aware of the need to approach the evidence of the appellant and his wife with caution, to look for clear and persuasive evidence that the position had changed and to be aware of the possibility that the wife's evidence might not be given entirely willingly or accurately.

10. Against this background and the judge's summary of the evidence given by the appellant and his wife I find that it was open to him to start his assessment of the position in paragraph 7 with the words; "For a couple in a subsisting relationship the actions of the appellant and his wife are distinctly odd". The reasoning in that paragraph is sufficient to justify the judge's conclusions even without any reliance on demeanour. Whilst I accept that a lack of "outward signs of warmth" between the husband-and-wife is susceptible of a number of possible interpretations I read this is only one example of the judge's assessment of the interaction between them at the hearing.

11. I have looked at Goudey (subsisting marriage – evidence) Sudan [2012] UKUT 00041 (IAC) but do not consider that this provides any assistance on the facts of this appeal. The judge reached conclusions open to him on all the evidence.

12. I find that the judge did not err in law and I uphold his determination.

………………………………………
Signed Date 14 June 2013
Upper Tribunal Judge Moulden