Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA003322014
OA003332014

THE IMMIGRATION ACTS

Heard at Belfast
Decision & Reasons Promulgated
On 4 May 2016
On 15 June 2016

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

sak
sok
(ANONYMITY DIRECTION made)
Appellant
and

ENTRY CLEARANCE OFFICER - NEW DELHI
Respondent

Representation:
For the Appellant: Mr S McTaggart, Counsel
For the Respondent: Mr P Duffy, Home Office Presenting Officer

DECISION AND REASONS
1. The appellants applied on 11 September 2013 for entry clearance as Tier 2 Dependants. Their applications were refused with reference to paragraph 319H of the Immigration Rules. Essentially, the Entry Clearance Officer ("the ECO") was not satisfied that their sponsor in the UK, their father, has and has had sole responsibility for them.
2. Their appeals came before First-tier Tribunal Judge S Gillespie ("the FtJ") on 27 January 2015. He dismissed both appeals, concluding that the appellants had not established that they met the requirements of paragraph 319H in terms of sole responsibility.
3. The grounds of appeal before me can be summarised as follows. It is argued that the FtJ erred in terms of his assessment of the evidence in relation to his knowledge of where the appellants went to school. It is also said that he was not entitled to conclude that the divorce documents in respect of the sponsor and his ex-wife would need to refer to the children of the marriage, which the documents do not. No expert evidence was adduced in that respect and therefore the FtJ was not entitled to conclude that such documents would necessarily refer to the children. The FtJ had not explained why he did not find that the Nepalese Country Code assisted the appellants in terms of why there would be no reference to them in the divorce proceedings. It is also argued that the FtJ had been wrong to take into account that the sponsor did not explain the grounds on which he and his wife divorced, and that he would not be drawn into an explanation of those grounds. Furthermore, it is argued that the FtJ did not give the sponsor the opportunity to deal with any of the issues raised at [21] of the decision in terms of the FtJ's concerns about the sponsor's ex-wife's witness statement, or his concerns about the credibility of his ex-wife having deserted the two appellants.
4. The respondent's 'rule 24' response, in essence, contends that the FtJ gave sustainable reasons for his conclusions. So far as the Country Code is concerned, the ECO had also raised concerns as to why the divorce documents did not refer to the appellants and the ECO would have been best placed to make an assessment of applications for entry clearance from Nepal. It is argued that the grounds of appeal in relation to the FtJ's decision are nothing more than a disagreement with the findings.
The decision of the First-tier Tribunal
5. The FtJ said at [17] that the sponsor gave conflicting and implausible evidence relating to the appellants' school. He said that the fact that the sponsor did not know the address of the appellants' school damaged his credibility. Furthermore, he noted that the evidence was that the boarding school was within a five to ten minutes' walk from the family home, in Wami, Gulmi. However, he said that Chitwan where the school is located, is 120 kilometres away from the family home in Wami.
6. At [18], dealing with the divorce decree, he noted that it makes reference to the sponsor's former wife making no claims to alimony, and concluded that it was not credible to claim that the family proceedings would not mention custody where two children are concerned, or at the very least mention their existence as children of the marriage. He referred to the Country Code and what it says about the father being responsible for guardianship and upbringing of any children in cases where the mother does not wish to do so after divorce. If the mother wants to take care of the children under 5 years of age until they become 5 years old, she is permitted to do so. If she does not want to do so then the father must take care of them. He said that he was not persuaded that that explanation accounts for the absence of any reference to the children in the divorce proceedings.
7. At [20] the FtJ said that he was struck by the fact that the sponsor would not relate the grounds on which his wife divorced or be drawn into an explanation of those grounds, save for his statement both in cross-examination and in re-examination that he believed he had looked after her well. The FtJ concluded that the sponsor's evidence on that point was more likely to have arisen from a lack of knowledge of the contents of the (divorce) document.
8. As regards the written statement from the sponsor's ex-wife, he noted that it was in English, without any accompanying statement in Nepalese. He noted that it does not claim to be a translation. Other documents before him were certified as translations. He said that it was not clear from the certificate on the statement that it was read to the witness in a language she understood. How and in what circumstances she made the statement the FtJ considered to be unclear. He said that it was "by far" the best crafted document before him.
9. Although the sponsor's ex-wife claimed in the statement to have a knowledge of the Country Code, that was "pretending to a knowledge that must be outwith her experience". He found that her renunciation of all interest in the appellants was "unnaturally emphatic" and he concluded that the statement had been prepared to a blue print rather than in accordance with her experience. In the same paragraph he found that it was not credible that a mother would desert her 26 month and 15 month old boys at divorce, disclaim all future interest in them and not even express an interest in seeing them 12 years after being separated from them in circumstances where their father had been abusive to her.
10. He considered that there was weight in the point made on behalf of the respondent before him to the effect that the divorce decree document was inconsistent with family proceedings in its heading "Individual Criminal No.176 of the year 2001".
11. He expressed particular concern about the sponsor's "clear evidence" on where the school was in relation to the family home in Gulmi, his inability to give the address, and its actual location 120 kilometres away.
Submissions
12. Mr McTaggart contended that it appears that the FtJ undertook his own research in terms of the distance between Gulmi and Chitwan, since there was no reference to a distance of 120 kilometres at the hearing or in the documents before the FtJ. This is significant because it was a fundamental aspect of the FtJ's conclusions. Furthermore, this was not a matter that was put to the sponsor.
13. In relation to the point about where the appellants actually lived, with reference to the school, Mr McTaggart was not able to direct my attention to the evidence which supported the contention in the grounds to the effect that the sponsor's evidence was that the family have a permanent home in Gulmi but the family resided in Chitwan, where the school was located.
14. Reliance was placed in submissions on the contention that there was no reason for the FtJ to conclude that the divorce documents would necessarily refer to the children.
15. Given that the FtJ had said at [23] that the evidence taken as a whole "does not tip in favour of the Appellants", it is evident that the FtJ concluded that the decision was finely balanced.
16. Furthermore, the FtJ did not undertake an assessment of all the necessary factors to be taken into account in terms of 'sole responsibility'.
17. Mr Duffy relied on the rule 24 response. It was submitted that the FtJ gave adequate reasons for his conclusions. Although it was conceded on behalf of the respondent that it is not clear where the '120 kilometres' distance came from, the FtJ said that the sponsor did not know the address of the school. Furthermore, the evidence from the sponsor's witness statement at [5] was to the effect that when the sponsor went to go and work in Dubai in 2003, the appellants were living with him and his mother and father and aunt in his house, and that they continued living there when he left. It would not appear from the sponsor's evidence that they did move to Chitwan. The FtJ was therefore entitled to find that the appellant did not live five to ten minutes walk away from the family home in Wami, Gulmi.
18. At the time of the divorce the appellants were aged 3 and under and would generally be looked after by their mother. The FtJ was entitled to take this into account in terms of the lack of reference to the children in the divorce documents. Furthermore, the FtJ was entitled to find as he did in relation to the statements said to be from the sponsor's ex-wife.
19. Once the FtJ had concluded that the sponsor was not being candid, he was entitled to conclude that he did not have sole responsibility for the appellants.
My Assessment
20. I do not accept the submission on behalf of the appellant before me to the effect that the FtJ felt that the decision was finally balanced or a "close decision" as it was put to me. It is clear from the FtJ's reasons that he emphatically rejected the credibility of the sponsor, and the claim that he had sole responsibility for the appellants.
21. As regards the lack of reference to the appellants in the divorce documents, I am satisfied that the FtJ was entitled to conclude on the evidence before him that it was not credible that there would be no reference to the children in those divorce proceedings. Although the Country Code was relied on on behalf of the appellants, the FtJ was entitled to reject the contention that that explained why there was no reference to the children, who were aged 3 years and 1 year old at the time of the divorce. Whilst the Country Code explains what is to happen in the event that a mother does not want to take care of the children on divorce, that did not explain to the FtJ's satisfaction the lack of reference to them in the divorce documents. This is a matter that the sponsor was asked about, as recorded at [11] of the FtJ's decision. Asked to explain why the divorce decree did not mention the children, his answer was that they were very young at the time and perhaps that was the reason. It may be that he could have gone on to state that reference to them was not required in the light of the Country Code, but that was not his evidence before the FtJ. It was for the appellants, through the sponsor, to explain that and other issues to the satisfaction of the FtJ. There is no irrationality in the FtJ's conclusion in this regard.
22. In addition, at [20] the FTJ remarked on the fact that the sponsor would not relate or be drawn on the grounds on which his wife divorced him, stating that he believed he looked after her well. That is inconsistent with the information in the divorce document as to his alleged behaviour. The FtJ's conclusion was that this was likely to have arisen from a lack of knowledge on the part of the sponsor as to the contents of that document.
23. It is also to be noted that whereas the divorce document says that for some years after their marriage they had, in effect, a good relationship, and there is detailed reference to what is said to have been the sponsor's behaviour towards his ex-wife, there is no mention at all of their having had any children.
24. At [21] the FtJ gave detailed reasons for concluding that the statements said to be from the sponsor's ex-wife suffered from several credibility issues. He was entitled to conclude that the statement appeared to be prepared "to a blueprint" rather than in accordance with the witness's experience. Similarly, the conclusion that her renunciation of all interest in the appellants was "unnaturally emphatic" was a conclusion that was open to him on the evidence. It is also to be noted that at [15] the FtJ asked the sponsor why it was that his ex-wife was so willing to cooperate in the application (by providing a written statement). His explanation was that it could be that she had no interest in helping the children, although that on the face of it does not clearly address the FtJ's question. It is not the case, as suggested in the grounds, that the sponsor did not have the opportunity to address the question of why the appellant's mother would desert her very young children at the time of divorce. The matter was put to him as recorded at [9] and the sponsor was not able to explain why this was so.
25. Otherwise, in terms of the FtJ's assessment of the witness statement said to be from the sponsor's ex-wife, it was for the appellants to establish their case, including with reference to relevant documentary evidence. It was not incumbent on the FtJ to put every point to the sponsor in relation to that document. The sponsor was asked about it, as is clear from [9] and [15]. The FtJ was entitled to reject it, in particular bearing in mind the lack of explanation as to why the appellants' mother would abandon them. Additionally, the FtJ also remarked on the fact that the divorce document had the words "Individual Criminal No.176 of the year 2001" on it, which was inconsistent with family proceedings.
26. So far as the location of the school is concerned, although at [6] it is recorded that the sponsor said that the school was in Bharatpur - 8, Chitwan, at [14] it is recorded that the sponsor did not know the address of the school, simply saying that it was near the family home and took about five to ten minutes walking. It appears that at one point at least, the sponsor was unable to recall the address of the school.
27. Although it is said in the grounds that the sponsor's evidence was that the family have a permanent home in Gulmi but the family resides in Chitwan, I was not directed to anything that supports that contention as to the sponsor's evidence. I do note that the character certificates in relation to the appellants at pages 28 and 29 of the appellant's bundle do appear to state that the appellants are inhabitants of "VDC/Municipality Bharatpur ward no.10 Chitwan", but that appears to be the only possible source of information to the effect that the appellants live at an address very close to the school.
28. Having said that, it is not clear where the FtJ obtained the information about Gulmi and Chitwan being 120 kilometres apart. In the absence of any indication that this was evidence before him, it does appear that the FtJ may have undertook his own research on the point. If so, as is clear from authority, that was entirely inappropriate for many obvious reasons.
29. However, the point remains that on the basis of the evidence before the FtJ, the school was in a different place from where the appellants are said to have lived. To that extent the FtJ's assessment of the sponsor's evidence was justified.
30. When considering the FtJ's decision as a whole, I am satisfied that it provides legally sustainable reasons for his conclusion that the sponsor has not and did not have sole responsibility for the appellants. The FtJ was entitled to reject the suggestion that the appellants' mother expressed no interest in them at the time of the divorce or since. He gave reasons for concluding that the witness statement said to be from the appellant's mother could not be 'relied on', albeit that the FtJ did not use that phrase. There were other respects in which the sponsor's evidence was found to be lacking in credibility.
31. In those circumstances, the FtJ plainly rejected the contention that the sponsor had sole responsibility for the appellants as had been claimed, in terms of taking decisions in their lives and so forth. It is evident that he rejected the sponsor's evidence in that respect.
32. Whilst it is the case that the FtJ's decision is not immune from criticism, when his decision is considered overall I am satisfied that it is legally sustainable. I am not satisfied that there is any error of law in the FtJ's decision, or any that is material to the outcome. The decision to dismiss the appeal therefore stands.

Decision
33. The decision of the First-tier Tribunal did not involve the making of an error on a point of law. Its decision to dismiss the appeal of each appellant therefore stands.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Upper Tribunal Judge Kopieczek 14/06/16