Tribunal decisions

The decision

IAC-HW-AM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/01115/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 12 December 2013
On 19 December 2013

Before

UPPER TRIBUNAL JUDGE PINKERTON

Between

THE ENTRY CLEARANCE OFFICER - nAIROBI
Appellant
and

MRS SAHRA SHARIF OSMAN
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr E Tufan
For the Respondent: Mr A Otchie

DETERMINATION AND REASONS
1. The parties hereafter are referred to as they were before the First-tier Tribunal. The appellant is a citizen of Somalia who was born on 1 January 1986. She applied for but was refused entry clearance to join her purported husband in the United Kingdom. He has refugee status. Essentially the Entry Clearance Officer was not satisfied that the appellant’s marriage to the sponsor was genuine and subsisting. A marriage document submitted with a previous application was found to have been non-genuine.
2. The appeal came before First-tier Tribunal Judge Mayall. In a determination promulgated on 18 October 2013 he allowed the appeal pursuant to the Immigration Rules.
3. The respondent made an application for permission to appeal that decision which was granted. There were two grounds in support of the application. Firstly, the judge had failed to give adequate reasons for findings on a material matter and secondly, the judge failed to resolve a conflict of fact or opinion on a material matter.
4. It was submitted in the application that the judge acknowledged that a false document was submitted previously but on the evidence of the sponsor, his cousin and persons claiming to have been present at the wedding the judge made a finding that the appellant married the sponsor in 2009. The judge attached little weight to the witness statements of those claiming to have been present. In his consideration of the sponsor’s evidence the judge states “I did not gain the impression that he was telling me a complete pack of lies about this marriage”. In relation to the cousin he stated “[She] did not strike me as a person that had come to court to tell deliberate lies”. The submission is that those observations did not amount to a finding that the appellant had met the burden of proof, which is the balance of probabilities. The judge failed to assess the evidence that he heard in light of the appellant’s previous reliance on a false document.
5. As to the second ground although the judge made a finding that the appellant is married to the sponsor as claimed he failed to make a finding on whether the marriage is genuine and subsisting which was a concern of the Entry Clearance Officer raised in the refusal notice. Evidence of contact was given by the sponsor but the judge did not make any findings on the matter.
6. Both grounds were found to be arguable and permission to appeal was granted.
The Error of Law Hearing Arguments Before Me
7. Mr Tufan referred to the judge’s finding that the sponsor was hesitant in some respects in relation to the evidence he gave, including the names of the witnesses to the marriage. The sponsor’s cousin was not present at the wedding because she had come to the United Kingdom in 2001 and had never met the appellant. The only person to witness the marriage did not give evidence and that person’s statement was unsigned. The judge’s decision was totally unreasonable and against the weight of evidence. He also did not give sufficient reasons for coming to the conclusion that this is a genuine marriage and that the appellant and sponsor intend to live together as husband and wife.
8. Mr Otchie on behalf of the appellant submitted that the judge had considered all the facts and fully reasoned his decision. When the appellant made his asylum claim he mentioned his wife. As the judge said at paragraph 38 of the determination if the sponsor were not married at all this would be a remarkably forward-thinking fraud, presumably perpetrated in the expectation that, at some future date, the sponsor could bring somebody in purporting to be a person with the name that he had given as that of his wife at a much earlier date. It was submitted further that the judge dealt with all of the evidence and reminded himself of the standard and burden of proof. The judge accepted that there have been telephone calls and other evidence to show that this is a genuine marriage. Mr Otchie referred to the case of Goudey (subsisting marriage – evidence) Sudan [2012] UKUT 000041 (IAC). Furthermore the judge recognised the reasons why someone in the circumstances of the appellant and sponsor might be driven to supply a false document.
9. Mr Tufan responded that the previous judge’s determination was not appealed and the judge in that determination was satisfied that the appellant had submitted a false marriage certificate in support of the application.
My Decision
10. I announced my decision at the hearing to uphold the judge’s decision. The previous refusal dated 20 December 2011 refers to the fact that in the sponsor’s application to the Home Office seeking refugee status he mentions the appellant’s details although the sponsor did not know the actual date of the marriage, stating that it took place in 2009 but giving no specific date in that year. The appellant provided no evidence of her identity and nationality to demonstrate that she was one and the same person as mentioned. The judge in the determination at paragraph 38 reasoned that the appellant points to the fact that at the very first stage of his application for asylum he named his wife and the fact that he was married. If he were not married at all “this would be a remarkably forward-thinking fraud, presumably perpetrated in the expectation that, at some future date, he could bring somebody in purporting to be a person of that name.”
11. The determination is a balanced one. The judge has referred to the correct burden and standard of proof and the fact that the previous judge found that a false document had been submitted in relation to that previous application. He notes that there is some support for the appellant’s case in the witness statements from the persons claiming to be present (although he attaches very little weight to these) and the evidence of the sponsor’s cousin who could not confirm that the person applying was in fact the person who the sponsor had married although she was able to confirm that he was married at the time. The judge recognised that this presented various possibilities one of which was that she was telling the truth or a pack of lies. “I incline towards the former”.
12. The judge acknowledged the strength of the argument on behalf of the respondent and surmises why the false document may have been presented. Having considered all the evidence he concluded that the marriage is subsisting and that the parties do intend to live together.
13. The judge’s findings on the evidence that was before him did not oblige him to arrive at the decision that the appeal should be allowed. However, the decision that he did make on the evidence before him meant that the eventual findings were open to him.
14. For these reasons the First-tier tribunal judge’s decision is upheld.
15. No anonymity direction has thus far been made and there was no application at the hearing before me for one to be made. In the particular circumstances surrounding this appeal I see no need for such a direction.

Signed Date

Upper Tribunal Judge Pinkerton