Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/00747/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 14th March 2016
on 7th April 2016

Before

upper tribunal JUDGE MACLEMAN

Between

jan shair
Appellant

and

Entry Clearance Officer, islamabad

Respondent

Representation:

For the Appellant: Ms S Shafaatulla, of Five Star (International) Ltd
For the Respondent: Ms S Aitken, Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Pakistan, born on 4th October 1987. He has not asked for an anonymity order. Being married to a UK citizen, he sought entry clearance as a partner under Appendix FM of the Immigration Rules.
2. The respondent refused the application by notice dated 4th and issued on 5th December 2004, giving three reasons:-
(i) There were no photographs submitted after the wedding day. The parties had not met in person for over two years. The ECO was not satisfied that their relationship was subsisting. Further, chat records "raised concerns". The ECO was not satisfied that the relationship was genuine and subsisting or that the parties intended to live together permanently in the UK.
(ii) The financial aspect of the application was based on the appellant being in receipt of disability living allowance, but the necessary documentation from the Department of Works & Pensions (DWP) had not been submitted.
(iii) There were no exceptional circumstances to warrant a grant of entry clearance under Article 8 of the ECHR, outside the Immigration Rules.
3. The applicant filed notice of appeal to the Upper Tribunal. No additional evidence was submitted. An Entry Clearance Manager maintained the adverse decision.
4. First-tier Tribunal Judge Wallace dismissed the appellant's appeal by a decision promulgated on 2nd September 2015. The judge noted that a letter dated 7th February 2014 from the DWP to the necessary effect had now been produced, but the sponsor had no good explanation for being unable to find it earlier, for failing to obtain a duplicate while it was missing, or for producing it only at such a late stage (paragraph 44).
5. The appellant sought permission to appeal to the Upper Tribunal, on grounds which are somewhat discursive and argumentative. In essence, the grounds:
(i) criticise the judge's finding on whether there is a genuine and subsisting relationship (if there is a concluded finding);
(ii) maintain that the DWP letter should have been taken into account; and
(ii) seek to argue the case further in respect of Article 8 of the ECHR outwith the Rules, including the best interests of the child of the marriage.
6. The submissions for the appellant in the Upper Tribunal (correctly) did not focus on (iii). There is no real scope for the appeal to be allowed, outwith the terms of the Rules.
7. The ECO's reasons for not being satisfied of a genuine and subsisting relationship are not irrational, but they are not particularly strong. This was very much a live issue at the hearing. The sponsor explained why she had been reluctant to return to Pakistan while their child was an infant. There was evidence from other relatives. In her assessment of the evidence at paragraph 45 the judge noted that there is a marriage certificate and a child. She said that neither party appeared to have been "proactive in the maintenance of this relationship" and that it was anomalous that the appellant had not applied earlier for a visa to see his son. Although the sponsor had gone to Pakistan on holiday prior to her marriage [and for the wedding], it took her two years to go and see her husband again. "There are photos on file but these photos do not advance the appellant's claim. They could be of anyone".
8. The observation about the photographs is surprising. The presenting officer (who, as it happens, was also the representative in the FtT) acknowledged at the hearing in the Upper Tribunal that the photographs produced do show the sponsor (who was also present in the FtT and in the UT) and the appellant (whose photograph is on his application form).
9. This was not a point well taken by the judge, and it plainly played a part in her adverse assessment.
10. Regarding chat conversation records, the judge said at paragraph 47, "The respondent's concerns are legitimate. There has been no effort to address these concerns".
11. That observation is also problematic. A large part of the evidence for the appellant, including the sponsor's evidence, was directed precisely to address these concerns.
12. The respondent did not identify at any stage which particular passages might yield an adverse conclusion about the relationship. The judge did not refer directly to the records, which are on the file. There are passages which disclose bickering and a feeling that the relationship is not working out. There are passages which are affectionate. There are passages which discuss how many further children the couple might have, and how they might be named.
13. The judge's observations about the relationship express doubts, but they do not reach an explicit final conclusion. Some of the reasons given for doubting the genuineness of the relationship are, as observed above, difficult to support. In my view, the grounds and submissions for the appellant show that the judge did not reach a legally sound conclusion on this point.
14. A different outcome on the nature of the relationship would not assist the appellant unless it were shown that he should also have succeeded in respect of the documentation from DWP. In a rule 24 response to the grant of permission, the respondent founds upon the failure of the appellant to make his case in that respect. The response cites Appendix FM-SE paragraph 4D(ii), in terms of which a decision maker "may contact the applicant" where a specified document has not been provided.
15. As Ms Shafaatulla pointed out, the other documents provided with the application showed that the sponsor was in receipt of disability living allowance, which corresponded with payments into her bank records, also produced. In that context, it would have been a small and obvious step to request the missing item.
16. The counter to this point by Ms Aitken was that the respondent's policy is not to request missing documents where an application is to be refused for other reasons anyway. That seems generally sensible, but I am not disposed to find it a good reason for the decision maker failing to exercise discretion, where the reasons for the other point of refusal are so weak.
17. It is unfortunate that there has been so much delay. That is not only the fault of the respondent or of the First-tier Tribunal. The appellant's side largely contributed. The DWP letter should not have been omitted from the first application. Once the omission was clearly pointed out in the refusal notice, the missing item should have been provided with the notice of appeal. Its production should not have been delayed until the hearing stage. The fact that the appellant and sponsor dragged their heels is a matter which also weighed with the judge (paragraph 50).
18. In the end, however, I am satisfied that error has been shown on both grounds (i) and (ii). The decision requires to be remade.
19. Having revisited the evidence, I find that despite some ups and downs, these are no more than may be expected in many relationships. The evidence as a whole shows it to be more likely than not that the relationship is genuine and subsisting and the parties intend to live together permanently in the UK. The document missing from the application was obviously one which was likely to be readily available. The decision maker ought to have exercised discretion to request it. Once the document is seen, the application is perfected.
20. The decision of the First-tier Tribunal is set aside. The following decision is substituted: the appeal, as brought to the First-tier Tribunal, is allowed under the Immigration Rules.

17 March 2015
Upper Tribunal Judge Macleman