Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26509/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 March 2017
On 6 March 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MRS AMINA IBRAHIM ALI
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Masood, solicitor, Aden & Co solicitors
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-tier Tribunal. There is no good reason to make an anonymity direction in this case.

DECISION AND REASONS

Background
1. The Appellant appeals against the decision of First-tier Tribunal Judge Plumptre promulgated on 5 August 2016 (“the Decision”). By the Decision the Judge dismissed the Appellant's appeal against the Respondent's decision dated 7 July 2015 refusing her indefinite leave to remain as the spouse of a person present and settled in the UK. The Respondent did not accept that the Appellant’s relationship with her husband was genuine and subsisting based on inconsistencies between their answers at a marriage interview.
2. The background facts of the Appellant’s case are not in dispute. She is a national of Kenya. She entered the UK on 3 October 2012 with leave as a spouse until 18 December 2014. She made an in-time application for indefinite leave at the end of that period which was refused by the decision under appeal. The marriage interview was conducted on 21 May 2015. The Appellant has produced a witness statement seeking to explain the inconsistencies.
3. The Judge dismissed the appeal on the basis that she did not accept that the Appellant’s relationship with her husband was genuine and subsisting. Permission to appeal was granted by Upper Tribunal Judge Plimmer in the following terms:-
“It is arguable that the First-tier Tribunal (‘FTT’) has made a mistake of fact regarding the emails between the parties before the marriage. It is also arguable that this has caused unfairness and materially impacted upon the assessment of the genuineness of the marriage (see paras 31-33).
Permission is granted on all grounds”
4. The appeal comes before me to determine whether there is an error of law in the Decision and if so to either re-make the decision or remit to the First-tier Tribunal to do so.
Grounds and submissions
5. The Appellant’s grounds can be categorised as follows. The first ground (paragraphs [1] to [4]) concerns the Judge’s findings in relation to the e mail contact referred to in the permission grant. The second ground ([5]) is that the Judge acted unreasonably in attaching weight to the fact that there were few people shown in the wedding photographs. The third ground ([6]) asserts that the Judge has failed to give weight to the evidence given orally at the hearing (when the couple’s answers were consistent) and has given undue weight to the inconsistent answers given at the marriage interview. The fourth ground ([7]) challenges the Judge’s finding that the couple’s joint bank account statement was not genuine. The fifth ground ([8]) is essentially a complaint that the Judge misunderstood evidence. The sixth ground ([9] and [10]) challenges the limited weight given to a letter in support from the Appellant’s sister and brother-in-law. The seventh and final ground ([11]) accepts the difficulty presented to the Appellant’s case on a more major inconsistency between the couple’s answers at interview but asserts that the Appellant’s husband’s explanation should have been accepted.
6. In relation to the first ground, Mr Masood directed my attention to what is said in the Respondent’s Rule 24 statement that the Judge’s findings relating to the e mails were an accidental slip. Mr Masood submitted that on a fair reading of [32] and [33] of the Decision that could not be the case. Mr Tarlow in response relied on what is said in the Rule 24 statement but accepted that the Judge’s findings at [32] and [33] were muddled. He said though that this could not be a material error.
7. In relation to the third ground, Mr Masood submitted that, based on the findings that the couple are married ([34]), that they live at the same address ([35]) and have moved address several times together ([44]), it was not open to the Judge to find that the relationship was not genuine and subsisting. Mr Tarlow submitted that the Decision was based mainly on the reasons at [30], [35] and [43]. The Appellant accepted that the reasons given at [43] were a particular difficulty for her case. He submitted that the Judge was entitled to give weight to the factors which she relied upon. She considered all the evidence.
8. In relation to the bank statement (ground four), Mr Tarlow accepted that the Judge was not entitled to find that this was not genuine. Mr Masood produced the original and Mr Tarlow accepted that it was difficult to conceive how the Appellant would be able to obtain a bank stamp to certify the copy produced. He submitted however that this was not a material error. The Judge’s summary of her reasons for dismissing the appeal are at [46] and [47] of the Decision. He submitted that those are not affected by whether the statement is or is not genuine. In response to a question from me, he accepted that the reference at [47] to the lack of “any” documentary evidence of the couple living together as such might include the holding of a joint bank account. He submitted however that this was not the case here because the joint bank account was not set up until quite recently. Mr Masood confirmed that to be the case and indeed candidly indicated that the reason why it was set up was because the Appellant had been told that she needed to produce better evidence of their joint relationship.
9. The fifth ground relates to a minor point about the evidence. The Judge notes at [38] the oral evidence that both the Appellant and her husband work long hours. This evidence was relevant as to why they did not spend much time together and did not know much about each other. Mr Masood was unable to tell me whether the evidence was in fact that “both” said that they worked long hours. This is important because the Judge finds that evidence to be undermined by the documentary evidence that the Appellant works only 25 hours per week. The Appellant’s challenge in this regard is that the Judge fails to note that the Appellant’s husband does work, on average, ten to eleven hours per day. However, the Judge’s comment at [38] is factually accurate if the evidence was that “both” worked long hours.
10. The Judge dealt with the letter in support from the Appellant’s sister and brother-in-law at [42] of the Decision. The Appellant challenges the limited weight given to that because good reason had been given for their absence. Mr Masood sought to show me that the Appellant’s sister had in fact given birth just after the hearing. However, that is not the point. The question is the weight to be given to evidence which could not be tested. The Judge does not criticise the absence or disbelieve the reason given. She simply refers at [42] to the “unfortunate” fact that the writers of the statement could not attend. In circumstances where, as she notes, that evidence could not be tested, she was entitled to give that evidence little weight. Mr Masood also sought to argue that the Judge’s treatment of this evidence undermines what is said at [35] about there being no supporting evidence from friends of the couple. I do not accept that. The reference there is clearly to friends and not to relatives.
11. The final ground concerns the answers given at the interview about the couple’s desire for children. The Appellant’s grounds frankly accept that this inconsistency is difficult to explain. The Appellant’s statement seeks to explain this on the basis that her husband thought that he was being asked whether they had discussed having children shortly before the interview. The Judge found that explanation “disingenuous”. That finding was clearly open to her.
12. At the end of the hearing, I indicated that I reserved my decision in relation to whether there is an error of law in the Decision and would issue my decision in writing. Both representatives agreed that if I found an error of law, this appeal should be remitted. The challenge to the Decision is to adverse credibility findings.
Discussion and conclusions
13. I start by dealing with the more minor challenges to the Decision. I have already indicated in relation to grounds five, six and seven that those do not disclose errors for the reasons set out at [9], [10] and [11] above. I can also deal shortly with ground two. The Judge notes at [15] of the Decision that Mr Masood asked her to give weight to the wedding photographs. She dealt with those at [34] of the Decision as follows:-
“[34] I accept that the parties married in Nairobi as per a poor marriage certificate at page 55 but find the wedding photographs at pages 56-57 are limited since there are at best only three or four individuals photographed with the couple on page 56 and I was given no explanation as to who any of those persons were.”
Whilst Mr Masood is entitled to point out that the fact that only a few people attend a wedding ceremony does not mean it is not a genuine relationship, that does not mean that the Judge was obliged to place weight on the photographs in relation to the essential question for her whether the relationship is genuine and subsisting at the time of the appeal hearing. Further, the Judge accepts that the parties married in Kenya. The photographs do no more than confirm a fact which the Judge accepted.
14. I turn then to consider the two findings which the Respondent accepts are or may be errors before dealing with the wider issue of the Judge’s consideration of the overall evidence and general reasoning. The Respondent does not accept that the errors are material and it is necessary therefore to consider those findings in the context of the overall reasons for dismissing the appeal.
15. The first issue concerns the e mails. This was the point referred to in the permission grant. The Judge deals with this evidence at [31] to [33] as follows:-
“[31] As requested by Mr Masood I have given careful consideration to the copy e mails at pages 40-54. Contrary to his submission there appear to be no emails between the appellant and sponsor husband prior to their marriage in Nairobi on 26 September 2011. Further no explanation was provided as to who Rasmi Adey with the e mail address rasmilove1@hotmail.com was, nor was it ever established that alhajim@hotmail.com the email address of her sponsor husband.
[32] I give weight to the fact that there are e mails dated 7/27/11, 6/19/11 and 6/16/11 and that these all postdate the marriage and that there is no evidence of the e mail communications that allegedly took place between February and July 2011. I find this a significant evidential omission.
[33] Given that the parties have been able to recover three emails from June and July 2011 at pages 40-42 I would have expected them to provide earlier e mails between February-July 2011 when they were allegedly in email communication after the introduction by the appellant’s sister. I find this to be a significant omission and that such earlier emails prior to their marriage would have rebutted the allegation of the Respondent that the marriage was entered into to gain entry clearance/was for immigration reasons.”
16. I cannot accept what the Respondent says in her Rule 24 statement. There is simply too much confusion about dates and periods in this section of the Decision for it to be suggested that this is merely an accidental slip. The findings are also internally inconsistent. The Judge accepts that there are three e mails from June and July 2011 which then undermines her point that there are no e mails before September 2011 and also the comment that there are no e mails between February to July 2011. It is certainly true that there are no e mails from February to June 2011 which is at the time when the relationship is said to have started.
17. However, I am quite unable to accept the Appellant’s contention that this error undermines the Decision. The Judge makes the point at [31] that there is a lack of evidence about the “owners” of the two e mail addresses. The Appellant seeks to address that point at [4] of her grounds on the basis that “there cannot be evidence to show who the e mail IDs belong to”. Whilst I fully accept the point made there that a person may choose an e mail address which is not their actual name, the address would generally have some connection with their name or be a pet name or nickname. Further, it is not right that there cannot be evidence. The Appellant and her husband could easily have explained by way of a witness statement why their e mail addresses are as they are and why they used the names in those e mail addresses. Mr Masood was unable to provide any explanation for why someone named Amina Ibrahim would call herself “Rasmi Adey”. For those reasons, although the Judge has erred in finding that there are no e mails in the period pre-dating the marriage, she was entitled to reject that evidence for the second reason given at [31] namely that the e mails do not show that they are between the Appellant and her husband.
18. I turn then to the joint bank statement. As I have noted at [8] above, the Respondent accepts that the Judge was not entitled to find that this was not a genuine document. I was shown the original and I concur. However, there are two reasons why that may make no difference. The first is that the content of the statement does not show use of the account by both parties. The Appellant’s salary is shown as being paid into that account but, possibly due to the period covered by the statement, it does not show that the Appellant’s husband is also having his salary paid in to that account. The second and more fundamental difficulty with this evidence is Mr Masood’s candid acceptance that the statement is dated very shortly before the hearing and that the reason for this is that the account was set up for the purpose of providing evidence in this appeal. The couple have lived together from 2012 but have not established a joint account until 2016 and then for the purpose of showing their relationship to be genuine. Although the Judge was not entitled to say as she did at [37] of the Decision, that the document had been manipulated to appear as a joint account to enhance the prospects of success of the appeal, it remains the case that it was evidence that was generated for the express purpose of enhancing the prospects of success of the appeal. That diminishes the weight which could be given to it.
19. The Appellant’s main challenge is to the Judge’s consideration of the evidence as a whole. Mr Masood’s submission in this regard was that it was not open to the Judge to find as she did because she accepted that the couple were married, live at the same address and have moved several times together. Those are of course relevant factors, as the Judge accepts by referring to them. In essence, though, the Appellant’s challenge is a perversity one. She says that, having accepted those factors in the Appellant’s favour, the Judge was not entitled to dismiss the appeal. I disagree.
20. I deal first with the way that Mr Masood argued this point. He said that the Judge had disregarded the oral evidence and focussed only on the answers in interview. The grounds point out that the Appellant and her husband did give consistent answers on some topics in oral evidence at the appeal hearing such as what they had done on the previous weekend, the days they work, the routes they take to work, the name of their landlord and names of their neighbours. It is said that those compensate for the inconsistencies in their answers at interview. It is said that the Judge did not take those consistencies into account.
21. The difficulty with the Appellant’s challenge in that regard though is that the Judge makes reference to that oral evidence at [10] of the Decision and indicates that she has taken it into account in her findings so far as relevant. Nor is it the case that the Judge found only inconsistencies in the evidence of the Appellant and her husband. There were a number of matters raised by the Respondent against the Appellant for which the Judge accepted the explanation given (see [25] to [29]). The Judge has also accepted some of the criticism made of the interview in the Appellant’s favour (see [19] to [24]). This was far from a one-sided review of the evidence.
22. As I indicated to Mr Masood at the hearing, it seemed to me that the fundamental reasons for finding against the Appellant are those set out at [30], [35], [39] and [43] of the Decision. Those read as follows:-
“[30] I do give weight to the discrepant answers as to whether the proposal of marriage was via e mail or by telephone, and to the discrepant answers as to whether the proposal was after six months’ communication or four months’ communication. I give weight to the appellant’s recorded answer that they “spoke for five months and we would e mail once a week and call each other three times a week by telephone” and that the appellant also stated that her husband asked her online “will you marry” and that she replied the same night saying “yes” and that “he rang me. He was happy. I was happy” whereas the sponsor said that he proposed after about four months of speaking and that it came up in a discussion on the telephone and that she wanted to think about it and thought about it three-four weeks approx. “We have lots of communications in between. She told me yes on the phone and in an e mail”. I give weight to these recorded answers at Q10. I find that this is a significant discrepancy and that the respondent was entitled to give weight to it as I do.
…
[35] I accept that the parties have lived together at the same address but find that this is not of itself indicative of a genuine and subsisting marriage. I give weight to the fact as rightly submitted by Mr Bassi, that there is no evidence at all from any friends the appellant and sponsor husband have made as a couple and that their answers as to their common interests is not indicative of the parties’ living and adjusting to life in the UK as a married couple. Although both referred to going out to a restaurant on one occasion only in 2016, both of them knew little of the other’s interests and hobbies.
…
[39] I give weight to the fact that there is no evidence of the appellant and sponsor husband doing anything together in the United Kingdom such as outings to parks, gardens or other public places to which access is free nor of them doing anything together as a couple such as going to a restaurant with friends or taking a bus to visit sights such as Trafalgar Square or other London tourist attractions.
…
[43] I also give weight to the appellant’s answer at Q13 about possible plans to have children and to the fact that the appellant said at Q13 “We are waiting for me to get pregnant. We have spoken about it. We want as many as I can” which I find is at total variance with the sponsor’s answer that they have no plans to have children and have not talked about it. I find that the sponsor’s husband’s denial that they have not talked about children is not dependent on whether they had discussed this recently or at an early stage when they got to know each other and disbelieve his explanation that he thought he was being asked whether they had discussed having children shortly before the interview disingenuous. I disbelieve the detailed explanation provided in paragraph 17 on page 9 of the appellant’s statement”
23. I have already noted at [11] above the Appellant’s acceptance that, in particular, [43] of the Decision presents difficulties to her case. I have also there indicated that the Judge was entitled to find the explanation given to be “disingenuous”.
24. That these were the real reasons for the Judge dismissing the appeal is underlined by her conclusions at [46] and [47] of the Decision as follows:-
“[46] In summary, whilst I have not accepted some of the reasoning of the respondent, I find that on significant matters that are germane to whether or not this is a genuine marriage, ie whether the proposal of marriage and acceptance was via e mail or by telephone, whether or not the parties have discussed/have plans to have children or not, and where they spent their first night after marriage, ie in a hotel or at the family home, that the appellant and sponsor husband gave significantly different answers and are matters to which I give weight.
[47] I find when these discrepancies are coupled with the lack of any oral or documentary evidence of them living together as a couple and going on outings with other friends or family, that the appellant has not established on the balance of probabilities that this is a genuine and subsisting marriage as required by paragraph 287(iii).”
25. Looking at those reasons, they do not depend on the findings which the Respondent has conceded were in error. Although there is reference to there being no documentary evidence, I have explained at [18] above, why the joint bank statement does not assist the Appellant in that regard nor therefore undermine the Judge’s finding to that effect. The Judge’s reasoning also focusses very much on the evidence of the relationship post-dating the marriage, particularly that post-dating the Appellant’s arrival in the UK. Therefore, even if the Appellant were able to show that the e mails disclose communication between her and her husband prior to their marriage, that is immaterial to the Judge’s reasoning as to why the relationship is not accepted to be genuine and subsisting now.
26. The Judge has explained her reasons and has made clear and detailed findings on the evidence at [18] to [45] of the Decision before reaching the conclusions which I have set out above at [46] and [47]. Those conclusions were open to her based on the evidence. The Decision cannot be said to be perverse. The Appellant is unable to establish that the Judge has made errors in her findings which are material to those conclusions.

27. For those reasons, I am satisfied that the Decision does not disclose a material error of law and I uphold the Decision.

DECISION

The First-tier Tribunal Decision did not involve the making of an error on a point of law. I therefore uphold the First-tier Tribunal Decision of Judge Plumptre promulgated on 5 August 2016 with the consequence that the Appellant’s appeal is dismissed.

Signed Dated: 3 March 2017

Upper Tribunal Judge Smith