Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA124722015

THE IMMIGRATION ACTS

Heard at Field House, London Decision & Reasons Promulgated
On the 1st June 2016 On the 10th June 2016

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
MRS TARA DEVI RAI
(Anonymity Direction not made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Blundell (Counsel)
For the Respondent: Mr Tufan (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is the Appellant's appeal against the decision of First-tier Tribunal Judge Landes promulgated on the 5th September 2015, in which she refused the Appellant's appeal under paragraph 287 of the Immigration Rules in respect of her application for indefinite leave to remain as a spouse. The Appellant has sought to appeal that decision to the Upper Tribunal.
2. Within the original Grounds of Appeal it is argued that First-tier Tribunal Judge Landes accepted that the relationship between the Appellant and her British Sponsor husband Birju Limbu began as a genuine marriage and that the marriage continued to subsist, despite the fact the Appellant and her husband had lived apart from December 2013 to May 2014, when the Sponsor had worked in Hong Kong. It is said that at [17] of the determination Judge Landes recorded the fact that the couple again lived apart from each other as the Sponsor moved to Brecon in Wales in order to secure employment and that his motives for seeking employment in Wales and remaining there were "plausible" [19 and 20]. It is said that Judge Landes recorded the fact that there was evidence of the Appellant visiting the Sponsor in Wales and remaining in touch with him via telephone and Skype, but it was said that Judge Landes had concluded that the marriage was not subsisting because of discrepancies in the evidence regarding the frequency/number of visits by the Appellant to Wales, the lack of effort made by the Appellant to relocate to Wales and little detail about their plans for the future. It was argued that whilst Judge Landes was entitled to note the discrepancies over the number of visits made by the Appellant to Wales, the fact remained that the Appellant visited the Sponsor in Wales on 5 or 6 occasions between July 2014 and the date of the appeal hearing in light of the evidence of the Sponsor, her 2 witnesses and the uncontroverted documentary evidence of those visits [7].
3. It is said that Judge Landes did not grapple with the fact that whilst the Appellant had not made active efforts to relocate to Wales the couple had remained in regular telephone contact and had seen each other for a weekend every 2 months and that those are simply hallmarks of a long distance relationship. It is said that in concluding the marriage was not genuine Judge Landes neither considers nor gives weight to the fact that the couple make efforts to see each other on 5 or 6 occasions and had failed to factor in this material consideration. It is said that the Judge failed to look at the purposes of those visits if it was not a genuine and subsisting relationship and that in finding that this was not a relationship the Judge arguably ignored the real possibility that this is a genuine couple who are at present, living apart.
4. Permission to appeal was originally refused by First-tier Tribunal Judge Nicholson on the 2nd February 2016 who found that the Judge had noted that there was "No one model of a genuine marriage" at [35], but that the Judge considered the evidence of contact and visits, but concluded for good reasons that the full truth had not been told and that given the inconsistences in the evidence, the lack of cohabitation and the vagueness regarding the future plans, the Judge had found that the case was not proved on the balance of probabilities and that these findings were open to the Judge.
5. The Appellant sought to renew the application for permission to appeal to the Upper Tribunal, in which it is argued that in addition to the original Grounds of Appeal submitted that the First-tier Judge had not given adequate reasons for concluding that she was not satisfied that she had been told the truth about the current state of the relationship at [35]. It is said that those findings also do not reconcile with the Immigration Judge's earlier findings in the same paragraph. It is further argued that the Judge's findings in relation to the intention of the parties to live together in the future is merely speculation and that the parties are in a genuine relationship and do have a firm intention to live together in the future and that the Judge failed to appreciate the parties' circumstances and take into account the circumstantial evidence before her. It is denied that this is simply a disagreement with the Judge's factual findings and that the Judge arguably ignored the real possibility that this was a genuine couple who are at present living apart.
6. Permission to appeal was granted by Upper Tribunal Judge McGeachy on the 15th April 2016, when she found that "Having considered the determination and the findings of the Judge of the First-tier Tribunal which include the fact that she had found that the marriage was a genuine marriage, I consider that it is arguable that the Judge has placed too high a burden of proof on the Appellant. I therefore grant permission to appeal".
7. It was on that basis that the case came before me in the Upper Tribunal.
8. Mr Blundell on behalf of the Appellant had submitted a supplemental bundle to be used if an error of law was found. In his oral submissions Mr Blundell argued that this was an unusual application for indefinite leave to remain and that the Appellant lived in Harrow in London, whereas the husband lived in Brecon and had done so at all material times. He agreed that the Judge needed to consider if this was a genuine and subsisting marriage and also whether or not the parties intended to permanently live together. He argued that although there were some difficulties with the oral evidence, including contradictions as to how the bus tickets had been bought for the Appellant to go to Wales and the Judge's concerns regarding the frequency of the visits and the difficulty regarding whether or not the Sponsor had been working on the date of the visit prior to the appeal hearing on the 14th August, 10 days before the appeal, he argued that the Judge had nevertheless accepted at [33] that this was a genuine marriage at inception, and that there had been visits from the Appellant to the Sponsor and that the Judge had also considered the pre and post-decision evidence regarding phone contact which he argued the Judge had found showed a pattern consistent with the parties keeping in contact. He argued that they had kept up their relationship at a distance. He argued that the Judge had not asked the ultimate question as to why the phone contacts and visits were happening, if this was not a genuine marriage. He argued that the Judge had failed to reflect adequately on the nature of the relationship in light of the findings made and that the decision had been inadequately reasoned given the lack of consideration as to why the contacts and visits had been maintained, if it was not a genuine marriage. He argued that the Appellant was challenging all of the findings between paragraph 17 and 35 of the decision including the findings in respect of the lack of active steps having been taken regarding the Appellant relocating.
9. Mr Tufan in his oral submissions on behalf of the Respondent argued that the Judge had considered the evidence of the Appellant and of the witnesses and had considered the evidence in detail and made findings which were open to her. He argued that the Judge had found a huge number of discrepancies. He argued that Mr Blundell had not argued that this was a perverse decision. He argued that marriages often start as genuine marriages and fail and that some contact did not mean that it was a genuine relationship. He argued that the Judge had properly considered the state of the relationship at [35] and had considered whether or not this was a subsisting and genuine relationship and whether or not the parties intended to permanently live together. He argued that the Judge had made findings open to her.
My Finding on Material Error of Law
10. At [10] of her decision First-tier Tribunal Judge Landes noted that the burden of proof was on the Appellant and the standard of proof required is the balance of probabilities. She noted within her determination the requirements under paragraph 287 of the Immigration Rules for the marriage to be still subsisting and for each of the parties intends to live permanently with the other as his or her spouse. These are separate requirements under paragraph 287 of the Immigration Rules, and Judge Landes properly considered those separate requirements individually.
11. However, when considering the evidence in respect of both issues, as to whether or not the marriage was subsisting and as to whether or not the parties intended to live permanently together, Judge Landes had to consider, as she did, the evidence pointing in favour of the marriage being a subsisting marriage and the parties' intent to live permanently together, and the evidence pointing against the marriage still subsisting and the intention of the parties to live permanently together. The Judge had to weigh, as she clearly did, the evidence in the round, and in this regard, the Judge did fully take into account the evidence of phone contact between [22 and 24] and clearly found that the pattern demonstrated of phone contacts and text messages was consistent with a couple who are indeed keeping in contact and the varying length of the calls including some long calls, but by no means exclusively long calls or calls of or around the same length are again consistent with a couple who are keeping up a relationship at a distance. However, the Judge went on to consider that the other evidence of contact was more equivocal at [25]. She noted that the birthday card was post-decision and that in respect of the Valentines card the envelope was not legible. In respect of the bus reservations which she found were consistent with the Appellant having visited Wales on 7 occasions post-decision since the beginning of April 2015, there was no documentary evidence of visits pre-decision and that there were some contradictions in the oral evidence, in that in her statement she said that pre-decision she bought the bus tickets over the counter, but did not keep them, but when asked by the Judge she had said that she had always since she had been visiting her husband made reservations over the internet. Judge Lanes found that the Appellant then appeared to contradict herself by saying that at the time she had not realised that proof was needed as most of the time she used cash [35] and that when this inconsistency was pointed out she said that she had bought the tickets over the counter rather than using the internet.
12. The Judge went on at [27], to consider what she considered to be significant inconsistences in the witness statements and the oral evidence about contact in that firstly, both in the covering letter sent with the application, but also the Appellant's statement sent with the application referred to Mr Limbu travelling to London once a month to see the Appellant, Mr Limbu said in evidence that he had not travelled to London since he moved to Brecon in July 2014. She further noted that whereas the Appellant said in oral evidence that she visited Mr Limbu twice a month in Wales, which she found would mean that she visited him over 20 times and that it was said that she had visited him 5 or 6 times in the last 2 months, Mr Limbu had given contrary evidence and found that the Appellant visited him 5 or 6 times in total since July 2014 and that he thought it was about a month before the most recent visit on the 14th August although he could not remember exactly and it was only after some difficulty that he had decided that his wife had visited on the weekend of the 31st July.
13. Judge Landes noted that Usha Rai's evidence was that the Appellant had visited Mr Limbu 5 or 6 times in the 3 months from July to September 2014 and that Ms Magar's evidence was that the Appellant had visited Mr Limbu 5 or 6 times since they had shared a flat from September 2014.
14. The Judge noted that although she did not expect the couple to remember the precise number of visits there was a striking difference between 5 and 6 visits or over 20 visits and that she would expect the couple in a genuine and subsisting relationship to be able to remember in general terms whether the visits were in the order of once every other month or twice a month. In such circumstances she was entitled to conclude that she was not being told the truth about the number of visits the Appellant had made to Mr Limbu and this was a finding open to her on the evidence given the inconsistences in this regard.
15. Although the Judge did find that she was satisfied that the relationship began as a genuine marriage [33] this does not in itself necessarily mean that the relationship was still subsisting and I find that the Judge fully considered the evidence point in favour of this being a subsisting relationship and the evidence against it, and that the Judge gave clear and adequate reasons for finding that in her judgment it had not been proved that the marriage was subsisting.
16. The Judge noted that the telephone evidence indicated that the couple were in frequent contact and of course she noted this was consistent with a couple in a genuine relationship, she considered that she had not been told the truth about the number of visits that the Appellant had made to Mr Limbu and that there were a number of significant inconsistences in the evidence about the visits and the purchase of the tickets for the visits.
17. The Judge noted that there was no one model of a genuine marriage and took account of the fact that given the inconsistences against the background and despite the evidence of phone contact and the evidence of a relative and friend she was not satisfied she had been told the truth about the current state of the couple's relationship which was presented as one of a continuously happy marriage with no reason for living apart other than work circumstances. She was therefore entitled to find on the evidence that this was not a marriage which was still subsisting. This was a finding open to her in light of the discrepancies in the evidence. The Judge did not need to make specific findings as to the purpose of the phone contact or of any visits that were in fact made, but did have to and clearly did take that evidence into account when considering the evidence in the round which she has done.
18. The Judge further considered that it was plausible that Mr Limbu had moved to Brecon to look for work and that it was plausible that he had restricted himself to looking for jobs through friends and that it was through a friend that he had heard of the vacancy in Brecon. However the Judge went on at [20 and 21] to consider the efforts that had been made by the couple to look for work in the same place so that they could be together and in my judgement the First-tier Tribunal Judge gave clear and adequate reasons for her findings in respect of the lack of active efforts made by the couple to look for work in the same place. I further find that the Judge was entitled to take into account the fact that the couple did not go into detail when invited in evidence to say what their future plans were at [30].

19. I further find that the Judge gave clear, adequate and sufficient reasons for her findings that the parties did not intend to live permanently together at [34 and 35] of her judgement. The Judge noted in this regard the fact that the relationship had begun as a genuine marriage but that since Mr Limbu's return to the UK over a year ago and obtaining work in Brecon the couple had not made active efforts to look for work in the same area and that although it might be difficult for Mr Limbu to find work without the recommendation of a friend, the Appellant who would have not had the same difficulties did not seem to have tried very hard.

20. It was open to the Judge to find that given the lack of active efforts of the couple to seek to live together over the previous year, that they had not proved in any event that they intended to live permanently together when circumstances permitted. Again, this was a finding open to the Judge on the evidence before her, such that even if I am wrong and there were any errors in the Judge's reasoning regarding the current state of their relationship, I find that any such error would in any event not be material, given the finding that the lack of active steps was more than adequately reasoned and in light of that finding, that it was open to the Judge to find that the parties did not intend to live permanently together such that the appeal would not have been successful in any event.

21. In such circumstances, the decision of First-tier Tribunal Judge Landes does not disclose any material error of law and is maintained.
Notice of Decision
The decision of First-tier Tribunal Judge Landes does not disclose a material error of law and is maintained.

Signed
R F McGinty
Deputy Judge of the Upper Tribunal McGinty Dated 4th June 2016