Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26139/2015

THE IMMIGRATION ACTS

Heard at: City Tower, Birmingham
Decision Promulgated
On 21st April 2017
On 25th April 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

The Secretary of State for the Home Department
Appellant
And

Harpreet Singh
(no anonymity direction made)
Respondent

For the SSHD: Mr Mills, Senior Home Office Presenting Officer
For the Respondent: Mr Rashid, Counsel instructed by Syeds Solicitors

DETERMINATION AND REASONS

1. The Respondent is a national of India date of birth 2nd August 1984. On the 26th August 2016 the First-tier Tribunal (Judge Warren) allowed his appeal on human rights grounds. Judge Warren accepted that the Respondent met the requirements in the rules (Appendix FM) for leave to remain as a partner. The Secretary of State for the Home Department now has permission1 to appeal against that decision.

Background and Matters in Issue

2. The Respondent came to the UK as a Tier 4 (General) Student Migrant in 2009. In 2013 he made two applications for leave to remain as the spouse of a person present and settled in the UK. Those applications related to his marriage to British national S. They were both refused. In November 2014 he made a third application based on his relationship with S. The Secretary of State’s decision to refuse that application is dated the 1st July 2015. It was not accepted that this was a genuine and subsisting marriage. Although evidence of cohabitation had been produced it was regarded as “minimal”. The couple had been invited for interview. The decision-maker identified what were regarded as three discrepancies in the evidence given. The letter states that “overall unsatisfactory” answers were given to 18 out of 38 answers given at interview but those are not particularised.

3. When the matter came before the First-tier Tribunal the Secretary of State failed to provide a full transcript of the marriage interview. The Respondent and his wife gave oral evidence and provided various documents attesting to their cohabitation. Medical evidence was supplied to confirm that S suffers from bi-polar disorder and that she was, at the date of the hearing, five months pregnant: the determination notes at paragraph 16 that this evidence was not challenged by the Secretary of State. Having had regard to all of this evidence, and the three “discrepant” answers allegedly given at interview and reproduced in the refusal letter, the First-tier Tribunal accepted that this was a genuine and subsisting marriage. It went on to allow the appeal with reference to paragraph EX.1 of Appendix FM, accepting that S’s condition presented an insurmountable obstacle to family life continuing in India.

4. The Secretary of State now appeals on the ground that in making its findings, the First-tier Tribunal applied the wrong standard of proof:

“This is a case where credibility was a key issue in assessing the nature of the relationship. At para 6 the judge sets out that the standard of proof is the normal civil standard. In the circumstances it is unfortunate that he did not express what that actually was. In para 13 he notes inconsistencies in the evidence in cross examination but they “did not materially impact the evidence on the lower standard of proof”. In para 17 when considering documentary evidence again he uses the lower standard of proof to find them sufficient. Although he does later cite the “balance of probabilities” it is clear that on key aspects of the evidence he has applied the wrong standard and on that basis his conclusions are unsustainable”

My Findings

5. It is clear that the Tribunal did refer to the lower standard of proof when it had no place in this determination. For instance, at paragraphs 17 the Tribunal refers to the documentary evidence in the following terms:

“The appellant’s bank statements, and the bills for Virgin Media are material evidence consistent with his account, as is the marriage certificate on which both parties gave the same address in 2012. On the lower standard of proof I find them to be sufficient”.

6. There can be little doubt that this was an error of law. The question raised in this appeal, as Mr Mills puts it, is materiality.

7. I am not satisfied that the references to the incorrect standard of proof in this determination are such that the decision should be set aside. I say this for the following reasons.

8. First, it appears to me, having read the determination as a whole, that the Tribunal in fact applied the correct standard of proof, that being the ‘balance of probabilities’. See, for instance, the global conclusion reached at the end of paragraph 17:

“On the balance of probabilities the evidence I have seen, read and heard, and which was available to the respondent at the time of the decision, the sponsor and appellant were living together at the appellants rented flat for a period of more than 2 years before the application, and were in a genuine and subsisting relationship. They were within the right age for each other, they married for love, having courted each other for some time before…..I am supported in that conclusion by the later evidence that they planned to have a child, and that the sponsor is now pregnant”.

9. Second it is clear from the determination that much of the evidence was uncontested by the Secretary of State for the Home Department. The couple were married. They had lived together for some time. They had made a series of applications so that he could remain here with her. She was pregnant. All of these prima facie indicators of a genuine marriage were accepted. The matters that had caused the decision-maker concern – the alleged discrepancies that emerged at interview – were not produced in the evidence before the First-tier Tribunal. Despite ample opportunity to do so the Secretary of State failed to discharge the evidential burden upon her to demonstrate that this was a marriage of convenience. Bar recitation of three of the ‘problematic’ questions in the refusal letter, the interview transcript was not produced. The Tribunal was satisfied with the explanations provided about the three answers identified. Given that scenario the Tribunal could do little else but accept that this was a genuine and subsisting relationship, on any standard.

10. Finally, as Mr Mills realistically accepts, at today’s date the appeal must be allowed in line with current Home Office policy. That is because Mr Singh is now father to a British child, a little girl born in December of last year. The Secretary of State has been provided with a copy of her birth certificate. In the absence of any criminality it is accepted that it would not be reasonable to expect this qualifying child to leave the UK; the public interest does not therefore require Mr Singh’s removal pursuant to s117B(6) of the Nationality, Immigration and Asylum Act 2002.

Decisions

11. The decision of the First-tier Tribunal does not contain an error of law such that the decision must be set aside. The decision of the First-tier Tribunal is upheld.

12. There is no direction for anonymity.

Upper Tribunal Judge Bruce
21st April 2017