Tribunal decisions

The decision

First-tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/48345/2014

THE IMMIGRATION ACTS

Heard at the Upper Tribunal
Decision & Reasons Promulgated
On 14th December 2016
On 30th December 2016

Before

UPPER TRIBUNAL JUDGE KOPIECZEK
and
DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

MS JESSILA BIBAT MERCADO
(anonymity direction not made)
Appellant
and

Secretary of state for the home department
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant has been granted permission to appeal to the Upper Tribunal for the reasons given by Judge Juliet Grant Hutchison on 23 February 2016:
(1) The appellant seeks permission in time to appeal against the decision of the First-tier Tribunal (Judge Tynan) promulgated on 25 September 2015 whereby it dismissed the appellant's appeal against the Secretary of State's decision to refuse the appellant leave to remain under Appendix FM and paragraph 276ADE of the Immigration Rules and under Article 8 of the ECHR.
(2) It is arguable that the Judge erred in law by a) failing to direct himself as the appropriate standard and burden of proof; b) by finding the [sponsor] "deliberately avoided" going into details of his asylum claim when the appellant's bundle included documents relating to the basis of the claim; c) by failing to give sufficient reasons for going behind the official grant of refugee status to the [sponsor] on the basis of his homosexuality; d) by finding that the appellant and her spouse "knowingly and deliberately sought to withhold the fact that he has been married from the respondent" and that they knew that the appellant's spouse is still married to Miss Asadi without putting the matter to the parties which could arguably be perceived to be unfair and material to the outcome; e) by failing to reach any findings on whether the parties are in a genuine and subsisting relationship which could be material to the outcome on the basis on which Article 8, both inside and outside the Rules, can be determined.
Relevant Background
2. The appellant is a national of the Philippines, whose date of birth is 6 February 1981. She first entered the United Kingdom on 3 June 2011 with valid entry clearance as a student. The period of leave was valid from 23 May 2011 to 30 September 2014. She successfully applied to extend her leave as a student until 10 October 2016. However, her leave was subsequently curtailed to end on 2 October 2014.
3. By letter dated 1 October 2014 her solicitors submitted an application by her for discretionary leave to remain on the basis of family and private life established in the UK. The application was supported by signed statements from the appellant and her partner, Mr Mohammed Byrami.
4. In a statement dated 24 September 2014, Mr Byrami said that he did not have a passport as he had a problem in his country of Iran, so he had come to the UK illegally and had sought asylum here in the UK. He had been granted asylum in 2008 and he had been issued with the travel document, which was valid until 2013.
5. In a joint statement, the appellant and the sponsor said that they had met through an online dating app which they had on their phones. After exchanging messages and getting to know each other, the appellant decided to go out with Mohammed on 23 August 2013 for their first date. During 2014, Mohammed asked the appellant to live with him, and she had accepted the invitation. She had moved in to his flat on 1 February 2014. On 11 September 2014 they got married at Morden Park House.
6. They both have grown up in conservative families. She had been raised in a strict family in the Philippines, and Mohammed had been raised in Iran with a background of Islam. So they needed to comply with their parents' decision, even though their own happiness was affected. They could not see themselves being separated. They were both "Asian", and they could not live in their respective countries. The first reason was that they were of different religion, Mohammed being Muslim and the appellant being a Roman Catholic. His family was not accepting that Mohammed was married to her. Secondly, they did not know how to speak each other's languages of respectively Farsi and Tagalog. Thirdly, they did not have a means of re-establishing themselves in either country.
7. Other problems they would face were restrictions on freedom of expression, the rights of women in Iran being oppressed, discrimination being "highly observed", the Government not recognising dual nationality, and lastly Iran having a high risk of terrorism.
8. On 26 November 2014 the respondent gave her reasons for refusing the appellant's application. In Mr Byrami's application for asylum on 21 May 2008, it was stated that he was previously married in Iran. The appellant had not provided the evidence specified in paragraphs 23 and 25-26 of Appendix FM-SE, to show that Mr Byrami's previous marriage had been dissolved. There was no evidence that this was a polygamous relationship that fell within paragraph 278(i) of the Rules. Accordingly, she failed to meet the requirement of paragraph E-LTRP.1.9 of Appendix FM.
9. But even if she was able to provide the evidence specified in paragraphs 23 and 25-26 of Appendix FM-SE, her application would still fall for refusal because she did not come within the ambit of EX.1.(b). While it was acknowledged that her partner had lived in the UK since 2008, this did not mean that they would not be able to live together in the Philippines. Although relocating there together might cause a degree of hardship for her settled partner, the SSHD had not seen evidence to suggest that there were any insurmountable obstacles in accordance with EX.2 preventing them from continuing their relationship in the Philippines.
10. In order to have the relationship they claimed to have in the UK, she and her partner must be able to communicate with one another, and therefore she could help and assist her partner in the Philippines. Furthermore, English was widely understood in the Philippines. It was noted that she was Catholic and her partner was Muslim. She provided no evidence to suggest that inter-faith marriages were not accepted in the Philippines, or that she would face significant obstacles in enjoying family life as a result of this.
11. The substantive hearing of the appellant's appeal was first listed to take place at Hatton Cross on 15 July 2015. The appellant's bundle of documents was delivered late, with the result was that the Home Office Presenting Officer only saw them on the morning of the hearing. As is recorded in Judge Tynan's subsequent decision, the Presenting Officer noted that Mr Byrami had been granted asylum in the UK "as an alleged homosexual". The Presenting Officer considered that this issue required further investigation. So, the hearing was adjourned and various directions were made, including that a further witness statement should be filed.

The Hearing Before, and the Decision of, the First-tier Tribunal
12. The appellant's appeal came before Judge Tynan sitting at Hatton Cross on 19 August 2015. Mr Solomon of Counsel appeared on behalf of the appellant, and on this occasion there was no appearance by a Presenting Officer on the part of the respondent.
13. The appellant gave oral evidence. As summarised at paragraph [12] of Judge Tynan's subsequent decision, she described her family as middle class. She said that religion was not important to the family and they were not practising Catholics. Her parents were initially shocked when she told them she was in a relationship with an Iranian Muslim, but they were now accepting the relationship. They were now very happy for her, particularly since learning that she was pregnant, and they hoped to visit her and Mr Byrami in the UK.
14. At paragraph [14] the Judge held that what the appellant and sponsor had said in their joint statement was at odds with the appellant's oral evidence, and it was also difficult to reconcile with what she said in her witness statement on 10 July 2015, in which she stated that she and Mr Byrami did not have any real sort of support base to return to in the Philippines. It was clear to the Judge that she had a close and loving family in the Philippines who would welcome her and her husband with open arms.
15. At paragraphs [16]-[21] Judge Tynan gave detailed reasons for finding that Mr Byrami's marriage to Miss Asadi had not been dissolved at the time of his purported marriage to the appellant in the UK on 11 September 2014. The Judge also found that Mr Byrami knew at the time that the Family Court in Iran had yet to give its judgment as to Miss Asadi's entitlement to a divorce, and accordingly he knew that he was not legally in a position to marry the appellant on 11 September 2014.
16. At paragraphs [22] and [23] Judge Tynan contrasted what Mr Byrami had initially said about his reason for claiming asylum with what he had said following the adjourned hearing on 15 July 2015. Mr Byrami had filed a statement dated 4 August 2015 in which he stated that he had begun to attend a Mosque once he was settled in the UK, and that with the help and guidance of Allah, his sexual preference had changed.
17. At paragraph [24] the Judge said that there were three possibilities. The first was that Mr Byrami's sexuality was fluid, and that he was attracted to both men and women. The second was that he had lied in 2008 when he claimed asylum on the basis that he was homosexual. The third was that he was still a homosexual, in which case that must at least give rise to a legitimate question as to whether he and the appellant had a genuine and subsisting relationship. He continued:
Neither the appellant nor Mr Byrami provided satisfactory responses to the questions I asked them on this issue. Mr Byrami was a particularly unconvincing witness. It is apparent from my findings already that I formed an adverse view as to Mr Byrami's honesty and credibility. He has, as I have found, sought to mislead this Tribunal.
18. The Judge held in paragraph [25] that Mr Byrami had deliberately avoided going into the details of his asylum claim, precisely because he knew that it potentially called into question his claim to be in a genuine and subsisting relationship with the appellant. He might have elected to open and up-front about this issue, but he chose not to be. He continued:
Against the background that he has purported to marry the appellant when he knew he was not free to do so, I have come to the conclusion that Mr Byrami is not a homosexual and has never had sexual or other feelings of attraction towards men. The appellant's evidence was that she had not discussed her husband's claimed homosexual past with him. She claimed that it was in the past and that she had no desire to ask him about his past or to aggravate it. She said that she did not wish her family life to be ruined by discussion of the matter. That was the full extent of her evidence on the subject.
19. The judge noted that she does not address the issue in either of her two supplemental statements dated 4 August 2014, nor was it referred to in the joint statement headed "History of the Relationship" or in her statement dated 10 July 2015. The judge found her evidence on this issue unconvincing and lacking credibility:
Anyone in the appellant's position would want to understand why their partner had claimed asylum on grounds of their stated homosexuality, would be keenly interested to know whether they had in fact had homosexual experiences in the past, would want to understand their sexual orientation and the potential implications for their relationship.
20. At paragraph [29] the Judge concluded that both the appellant and Mr Byrami knowingly and deliberately sought to withhold the fact that Mr Byrami had been married, and the reason why they did so was because they knew that Mr Byrami was still married to Miss Asadi, and accordingly they knew that their own marriage was invalid, but they went through the ceremony of marriage as the appellant's leave was about to end.
21. The Judge then turned to consider whether the appellant and Mr Byrami were in a genuine and subsisting relationship. He conjectured that the respondent would be further influenced in her view of the claimed relationship if she was aware that the marriage was invalid. But as the respondent was not represented at the adjourned hearing, he decided that the most appropriate course was to make no specific finding either way, but, "for the purposes of this appeal, to proceed on the assumption that the appellant and Mr Byrami are in a genuine and subsisting relationship and that Mr Byrami is the father of the appellant's unborn child."
22. At paragraphs [31]-[34] the Judge gave his reasons for finding that there were no insurmountable obstacles to family life being carried on in the Philippines.
23. At paragraphs [37]-[38], the Judge addressed the question whether the appellant qualified for Article 8 relief outside the Rules on account inter alia of her being six months' pregnant. Notwithstanding his findings regarding the appellant and Mr Byrami's conduct, he disregarded this in terms of whether it would be a disproportionate interference to require the appellant to return to the Philippines. He held that the appellant and Mr Byrami did not forfeit their rights under Article 8, nor were their rights diluted, by reason of their conduct that could be criticised or because they had engaged in deception. However, having regard to the appellant's support network in the Philippines, and since she would be returning to a country in which she had lived for the majority of her life and with which she was very familiar, he was satisfied that the appellant was eminently capable of navigating its healthcare system and accessing the services which the state made available to pregnant women.
24. He accepted that there would be an inevitable and not insignificant degree of inconvenience until the couple were fully settled in the Philippines, but notwithstanding the appellant's pregnancy and Mr Byrami's circumstances and situation, they could reasonably be expected to continue their family and private life in the Philippines, and they would be able to do so without undue hardship to either them or their child.
The Hearing in the Upper Tribunal
25. At the outset of the hearing, we drew attention to the fact that the appellant had written to the Tribunal on 15 November 2016. She said that she had given birth to a child by Mr Byrami, but that her relationship with Mr Byrami had come to an end. She was now seeking leave to remain in the UK as the primary carer of a British national child on Zambrano grounds. She indicated that she was content for the appeal to proceed in her absence. We informed Mr Clarke that we considered that it was in the interest of justice to proceed with the hearing in her absence, pursuant to Rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
26. Mr Clarke identified seven discreet points raised by Counsel in the application for permission to appeal, and he addressed us on each of them. We reserved our decision.
Discussion
27. Ground 1 is that the Judge failed to direct himself on the appropriate standard of proof. We accept that there is no reference in the decision to the appropriate standard of proof being on the balance of probabilities. But we are not persuaded that the Judge has applied a "much higher standard" in evaluating the claim. We consider that the Judge has assessed the evidence on the balance of probabilities and we were unable to identify any finding which appears to have been reached by the Judge inappropriately applying a higher standard of proof, such as beyond reasonable doubt.
28. Judge Grant Hutchison also gave permission to appeal on the ground that it was arguable that the Judge had misdirected himself as to the burden of proof. But this is not a criticism made by Mr Solomon in the application for permission to appeal, and we can discern no error in this regard.
29. Grounds 2 and 3 are lengthy and discursive. They have been helpfully distilled by Judge Grant Hutchison into sub-paragraphs (b) to (d) of her reasons for granting permission.
30. The finding that the sponsor had "deliberately avoided" going into details of his asylum claim is pleaded as being neither rational nor adequately reasoned. We do not agree. The Judge has adequately explained the relevant sequence of events. The evidence submitted in support of the application for leave to remain was silent about the reason put forward by Mr Byrami for claiming asylum. It was only when the extensive appellant's bundle was seen by the Presenting Officer on the day of the hearing scheduled for July 2015 that it became apparent that Mr Byrami had successfully claimed asylum on the grounds of his claimed homosexual orientation. For that reason, the hearing was adjourned so as to give Mr Byrami the opportunity to explain himself in a witness statement.
31. Mr Byrami's claimed homosexual orientation was relevant to the question of whether the relationship between him and the appellant was genuine and subsisting, which was not conceded in the refusal decision. It was open to the Judge to find, for the reasons which he gave, that neither the appellant nor Mr Byrami was 'up-front' about this issue when the appellant applied for leave to remain on the basis of her asserted genuine and subsisting marital relationship with Mr Byrami. It was only because the voluminous appellant's bundle contained the statement of additional grounds in the asylum claim that the Presenting Officer was alerted to the fact that the asserted fear on return to Iran was Mr Byrami being persecuted on account of his homosexual orientation. In his subsequent witness statement, My Byrami did not go into the details of his asylum claim, but simply said that his sexual orientation had changed in the UK. Against this background, it was not perverse of the judge to find that Mr Byrami had deliberately avoided going into details of his asylum claim.
32. It is not suggested that Mr Byrami acquired refugee status following a successful appeal to the First-tier Tribunal, and so the grant of refugee status on the grounds of his claimed homosexuality does not give rise to an evidential presumption. It was open to the Judge to find that Mr Byrami was not a homosexual, and never had been, for the reasons which he gave.
33. There is no error of law challenge to the Judge's finding that Mr Byrami's previous marriage to Miss Asadi had not been dissolved by the time of his marriage to the appellant on 11 September 2014. The Judge reached his conclusion on the basis of a careful analysis of the documents from the Family Court in Iran which Mr Byrami had provided. The Judge also took into account Mr Byrami's account of the Family Court proceedings, and in particular his explanation about the date which appeared on the judgment issued by the Family Court.
34. As the Judge rejected Mr Byrami's account of the Family Court proceedings, and his explanation for the date of the judgment, it followed almost inexorably that Mr Byrami had entered into marriage with the appellant when he knew that he was not free to do so, as he was still married to Miss Asadi. Since he and the appellant claimed to be in a genuine and subsisting relationship, it was open to the judge to infer that the appellant was also aware that their purported marriage was invalid due to it being bigamous. So we do not consider that it was procedurally unfair for the Judge not to have explored this case theory with the witnesses.
35. In addition, we do not consider that the Judge's finding of deception was material to the outcome. It had no bearing on his assessment of whether there were insurmountable obstacles to family life being carried on in the Philippines, and he expressly disregarded deception in his assessment of proportionality.
36. Ground 4 is that the Judge erred in failing to reach any findings on whether the parties were in a genuine and subsisting relationship. We consider this ground is without merit. The Judge expressly decided on procedural fairness grounds to assume in the appellant's favour that her relationship with Mr Bryami was genuine and subsisting.
37. Ground 5 is that the Judge wrongly applied the test of insurmountable obstacles under paragraph EX.1 by requiring the appellant to show that it would be impossible for the couple to live together in The Philippines. We find that the Judge correctly applied the definition of insurmountable obstacles provided in EX.2. He considered whether there were very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK, and which could not be overcome or would entail very serious hardship for the applicant or their partner. The Judge did not apply the higher test of impossibility.
38. In the course of his discussion, he said he did not accept the appellant's evidence, "that it would be impossible for them to live together or that Mr Byrami will be unable to obtain and job and pursue a career". It is clear from the context that the judge is simply responding to the case put forward by the appellant. He is not thereby adopting a higher test of impossibility.
39. Ground 6 relates to the question of whether there are insuperable legal obstacles to Mr Byrami joining the appellant in the Philippines, on account of his status. The Judge found that Mr Byrami could lawfully enter the Philippines using a Balik Biyan visa, which is mentioned briefly at page 273 of the appellant's bundle. He held that this permitted him to enter the country without a visa for a period of up to one year, and it did not require him to demonstrate any specific level of savings. He held that Mr Byrami could make a short visa run out of the country once a year until the requisite savings of US$10,000 had been accumulated. Once he had savings in this amount, Mr Byrami would be eligible to reside in the country on a permanent basis.
40. Mr Solomon pleads that the Judge's findings on this issue are inadequately reasoned or irrational. The irrationality complaint arises from the Judge's finding that the appellant and Mr Bryami are not legally married. While this might be an impediment to an application for permanent residence, it is a difficulty which can easily be overcome by the parties contracting a valid marriage. Moreover, there is nothing in the information given at page 273 of the appellant's bundle to indicate that Mr Byrami could not have entered the Philippines as the unmarried partner of the appellant on a Balik Biyan visa. So we find Ground 6 is not made out.
41. Ground 7 is that no proper consideration was given to the impact of removing the appellant when she was nearly six months pregnant, and no proper consideration was given to other issues bearing upon the proportionality assessment, such as the public interest considerations arising under section 117B.
42. There was no specific evidence that the appellant had reached a stage in her pregnancy when it was medically unwise for her to undertake on a long haul flight. We also do not consider that the Secretary of State would seek to remove a woman in a late stage of pregnancy. So the judge did not err in not asking himself the question whether at the date of the hearing the appellant could be safely flown home. It was open to the judge to focus on the question of whether it was reasonable to expect the appellant to go back home to give birth to the child, or whether she should in effect be given special dispensation to remain here for the remainder of her pregnancy.
43. The Judge's failure to make express reference to section 117B is immaterial, following AM (s117B) Malawi [2015] UKUT 0260 (IAC). We consider that the Judge gave adequate reasons for finding that that there were not sufficiently compelling or compassionate circumstances to justify the appellant being granted Article 8 relief outside the Rules.
Notice of Decision
44. The decision of the First-tier Tribunal did not contain an error of Law, and accordingly the decision stands. This appeal to the Upper Tribunal is dismissed.

We make no anonymity direction.

Signed Date 30/12/2016

Deputy Upper Tribunal Judge Monson