OA/01287/2013
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The decision
IAC-BFD- ML
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/01287/2013
THE IMMIGRATION ACTS
Heard at Bradford
Determination Promulgated
On 2nd December 2013
On 19th December 2013
Prepared 17th December 2013
Before
upper tribunal JUDGE roberts
Between
The Secretary of State for the home department
Appellant
and
mrs samina jamil
(ANONYMITY DIRECTION NOT MADE)
Respondent
Representation:
For the Appellant: Mrs R Pettersen, Home Office Presenting Officer
For the Respondent: Mrs Khan
DETERMINATION AND REASONS
1. In this appeal the Respondent is Mrs Samina Jamil a citizen of Pakistan born 1st January 1985. The Appellant is the Secretary of State for the Home Department. For ease of reference however I shall refer to Mrs Jamil as “the Appellant” and the Secretary of State as “the Respondent”.
2. This is a review of the appeal brought against the Entry Clearance Officer Islamabad to refuse the Appellant entry clearance to the UK as a fiancée to join Mohammed Jamil “the Sponsor” who is a British citizen settled here.
History and Background
3. The Appellant made application for a visa to enable her to join the Sponsor as his fiancée in the United Kingdom. Although the Appellant is referred to in various documents and in First-tier Tribunal Judge’s determination as the spouse of Mohammed Jamil, the position is that the Appellant’s and Sponsor’s marriage which took place in Pakistan is not recognised in English law. This is because at the date of the marriage in Pakistan, the Sponsor was still lawfully married to his first wife resident here in the UK. The Appellant therefore applies as a fiancée.
4. That application was refused on 6th December 2012 because the Entry Clearance Officer was not satisfied on two counts. The first related to the English Language Test Certificate and the second to the genuineness of the relationship.
5. By the time of the hearing before the First-tier Tribunal, matters had moved on. By that date which was 17th October 2013, there was produced to the Tribunal a determination dated 26th September 2011 promulgated by Judge Henderson. In that determination she made a finding that although the Appellant and Sponsor were not lawfully married so far as UK law is concerned, nevertheless their relationship was a genuine and subsisting one. She took note that a child has been born of the relationship and effectively that disposes of that matter.
6. Mr Paramor who appeared on behalf of the Respondent at the hearing on 17th October 2013 accepted, that following receipt of additional documentation the English Language Test requirement of the Immigration Rules was now met. Thus that ground was also disposed of. However he made application to add to the ECO’s reasons of refusal. He sought permission to incorporate paragraph 290(iv) of the Immigration Rules into the grounds of refusal. He submitted that the financial element of the proposed accommodation, was now in issue.
7. Judge Shimmin considered the application and properly gave the Appellant’s representative, Mrs Khan the opportunity of an adjournment to consider this request. She declined that offer and Judge Shimmin allowed Mr Paramor’s application to amend the grounds by adding paragraph 290(iv) to the refusal decision
8. Having heard evidence the Judge found:
“With regard to accommodation the sponsor told me that he purchased a property following the last hearing, because one of the reasons for the dismissal of the last appeal was inadequate accommodation. He has a three bedroomed property where he lives on his own. He brought no documentary evidence that the mortgage repayments to the Abbey National of £228 per month are up-to-date but I am prepared to accept the oral evidence of the sponsor in this regard.
With regard to the appellant’s maintenance the sponsor tells me that he has been working in a bed factory for over two years and at the time of the decision was taking home £210 per week. There was some inconsistency in the evidence as to when the sponsor started that job which throws some doubt on the genuineness of the sponsor’s employment.
However, I have seen the sponsor’s Halifax bank statements from May 2012 up to the date of decision on 6 December, 2012 and beyond. They show a regular weekly credit from the sponsor’s claimed employer.
On the basis of the sponsor’s oral evidence as well supported by the documentary evidence I am satisfied on the balance of probabilities that the sponsor is employed as claimed”.
9. He then went on to allow the appeal.
10. The Respondent sought and was granted permission to appeal. In granting permission First-tier Tribunal Judge Grant said:
“The issue of maintenance and accommodation were not included in the refusal decision but were added (with the leave of the First-tier Tribunal Judge) by the Presenting Officer at the hearing. The appellant’s representative declined the offer of an adjournment. The appellant, through her sponsor, failed to meet the burden of showing on balance that the claimed accommodation was genuinely available to her. The First-tier Tribunal Judge was shown no documents at all but relied upon the oral evidence of the sponsor who was aware from the previous hearing of the appeal that he must produce credible evidence of the availability of the claimed accommodation. By relying of the oral evidence alone the First-tier Tribunal Judge has arguably erred in law”.
Thus the matter comes before me to determine whether the decision of First-tier Tribunal discloses a material error of law, such that the decision has to be set aside and remade.
Upper Tribunal Hearing
11. Prior to hearing submissions, Mrs Khan on behalf of the Appellant sought to introduce a further document. This is entitled “Mini-statement Printout from Santander”. This shows direct debit payments to Santander Mortgage account on behalf of Mr Mohammed Jamil ( the sponsor). I accepted that document into evidence.
12. Mrs Pettersen on behalf of the Respondent followed the lines of the grounds seeking permission. She submitted that the Judge had erred because he had simply accepted the Sponsor’s oral evidence which was that he had purchased a three bedroomed property and that the mortgage repayments were up-to-date. There was no documentary evidence showing those mortgage repayments even though the Judge had had sight of the Appellant’s bank account statements with the Halifax. The Sponsor’s oral evidence was that he pays £228 per month for his mortgage repayment. Therefore the Judge had failed to explain adequately why he accepted this oral evidence in the absence of any finding on credibility and the inconsistency over the Sponsor’s claimed employment.
13. Mrs Pettersen further submitted that the document put before me today did not assist. Rather it raised further questions. This document showed a series of mortgage repayments but there was no corresponding evidence to link those repayments with money coming out of the Sponsor’s Halifax bank account. There was no credible explanation of where the funds for the mortgage repayments came from. The determination was unsafe and the decision should be remade and the appeal dismissed.
14. Mrs Khan on behalf of the Appellant submitted that the decision of Judge Shimmin should stand. The Judge took oral evidence from the Sponsor and was satisfied with that evidence. So far as the mortgage repayments are concerned, she told me that the Sponsor has been withdrawing money (presumably in cash) from his Halifax bank account in order to fund the mortgage repayments. I did ask Mrs Khan to point out to me where this was shown on the Sponsor’s Halifax bank account, but she was unable to assist.
15. At the end of submissions there was no further evidence put before me. I reserved my decision which I now give with my reasons.
16. I am satisfied for the reasons outlined by Mrs Pettersen, that the Judge erred in law when making his decision to allow this appeal. He has given inadequate reasons to show how he reached the conclusion that he did in paragraph 23 of his determination wherein he states that he is prepared to accept the oral evidence of the Sponsor with regard to the mortgage repayments of £228 per month. This view is reinforced when reading paragraph 23 together with paragraph 24 where the Judge states that he is prepared to accept that the Sponsor is employed as claimed yet goes on to say there is some inconsistency in the sponsor’s evidence over when he started that job, which throws some doubt on the genuineness of the Sponsor’s employment.
17. In those circumstances, it is essential that the Judge sets out clearly why he is prepared to accept the oral evidence only of the Sponsor. This he has failed to do and this failure amounts to an error such that the decision needs to be set aside and remade.
18. Since I was satisfied that I had before me all available evidence, I have remade the decision.
Remaking the Decision
19. My starting point is, that I am satisfied that the evidence shows that the Sponsor is the owner of a three bedroomed house, which in terms of room space is clearly adequate to house him the Appellant and their child.
20. What is in issue is the adequacy of the financial arrangements put forward to fund the purchase of that property. The documents submitted by Mrs Khan today did not assist. I now have before me two sets of statements, the Sponsor’s Halifax bank account statements, which reflect his current account and a Santander mini-statement showing direct debits to fund the mortgage repayments. That document shows monthly repayments dated 17th January 2013 to 1st November 2013. The date of decision in this appeal I remind myself is 6th December 2012.
21. The Santander document shows that a direct debit has been set up to fund the mortgage repayments. What is not shown is where this money comes from. There is no evidence directly linking the mortgage repayments to the Sponsor. The Sponsor’s Halifax bank account shows no direct debit to Santander. It shows no appropriate cash withdrawal and there was simply nothing to show who is financing these repayments.
22. In those circumstances I cannot be satisfied that the Appellant has demonstrated that there are adequate financial resources available to her within the meaning of the Immigration Rules.
23. I did note that there is a letter in the documents which offers her employment. I placed no weight on this, because the letter is undated and more importantly makes no mention of any salary.
24. Finally Article 8 ECHR was not raised either in the original grounds of appeal, nor before the First-tier tribunal. It was not raised before me. Since the appellant has been competently represented throughout these proceedings I am satisfied that had there been any arguable Article 8 issues they would have been put forward.
DECISION
25. For the foregoing reasons I am satisfied that the decision of the First–tier Tribunal discloses an error of law requiring it to be set aside. I have remade the decision. The Appellant’s appeal against the decision of the ECO Islamabad refusing her entry clearance is dismissed.
No anonymity direction is made.
Signature Dated
Judge of the Upper Tribunal
Fee Award
I have dismissed the appeal and therefore there can be no fee award.
Signature Dated
Judge of the Upper Tribunal
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/01287/2013
THE IMMIGRATION ACTS
Heard at Bradford
Determination Promulgated
On 2nd December 2013
On 19th December 2013
Prepared 17th December 2013
Before
upper tribunal JUDGE roberts
Between
The Secretary of State for the home department
Appellant
and
mrs samina jamil
(ANONYMITY DIRECTION NOT MADE)
Respondent
Representation:
For the Appellant: Mrs R Pettersen, Home Office Presenting Officer
For the Respondent: Mrs Khan
DETERMINATION AND REASONS
1. In this appeal the Respondent is Mrs Samina Jamil a citizen of Pakistan born 1st January 1985. The Appellant is the Secretary of State for the Home Department. For ease of reference however I shall refer to Mrs Jamil as “the Appellant” and the Secretary of State as “the Respondent”.
2. This is a review of the appeal brought against the Entry Clearance Officer Islamabad to refuse the Appellant entry clearance to the UK as a fiancée to join Mohammed Jamil “the Sponsor” who is a British citizen settled here.
History and Background
3. The Appellant made application for a visa to enable her to join the Sponsor as his fiancée in the United Kingdom. Although the Appellant is referred to in various documents and in First-tier Tribunal Judge’s determination as the spouse of Mohammed Jamil, the position is that the Appellant’s and Sponsor’s marriage which took place in Pakistan is not recognised in English law. This is because at the date of the marriage in Pakistan, the Sponsor was still lawfully married to his first wife resident here in the UK. The Appellant therefore applies as a fiancée.
4. That application was refused on 6th December 2012 because the Entry Clearance Officer was not satisfied on two counts. The first related to the English Language Test Certificate and the second to the genuineness of the relationship.
5. By the time of the hearing before the First-tier Tribunal, matters had moved on. By that date which was 17th October 2013, there was produced to the Tribunal a determination dated 26th September 2011 promulgated by Judge Henderson. In that determination she made a finding that although the Appellant and Sponsor were not lawfully married so far as UK law is concerned, nevertheless their relationship was a genuine and subsisting one. She took note that a child has been born of the relationship and effectively that disposes of that matter.
6. Mr Paramor who appeared on behalf of the Respondent at the hearing on 17th October 2013 accepted, that following receipt of additional documentation the English Language Test requirement of the Immigration Rules was now met. Thus that ground was also disposed of. However he made application to add to the ECO’s reasons of refusal. He sought permission to incorporate paragraph 290(iv) of the Immigration Rules into the grounds of refusal. He submitted that the financial element of the proposed accommodation, was now in issue.
7. Judge Shimmin considered the application and properly gave the Appellant’s representative, Mrs Khan the opportunity of an adjournment to consider this request. She declined that offer and Judge Shimmin allowed Mr Paramor’s application to amend the grounds by adding paragraph 290(iv) to the refusal decision
8. Having heard evidence the Judge found:
“With regard to accommodation the sponsor told me that he purchased a property following the last hearing, because one of the reasons for the dismissal of the last appeal was inadequate accommodation. He has a three bedroomed property where he lives on his own. He brought no documentary evidence that the mortgage repayments to the Abbey National of £228 per month are up-to-date but I am prepared to accept the oral evidence of the sponsor in this regard.
With regard to the appellant’s maintenance the sponsor tells me that he has been working in a bed factory for over two years and at the time of the decision was taking home £210 per week. There was some inconsistency in the evidence as to when the sponsor started that job which throws some doubt on the genuineness of the sponsor’s employment.
However, I have seen the sponsor’s Halifax bank statements from May 2012 up to the date of decision on 6 December, 2012 and beyond. They show a regular weekly credit from the sponsor’s claimed employer.
On the basis of the sponsor’s oral evidence as well supported by the documentary evidence I am satisfied on the balance of probabilities that the sponsor is employed as claimed”.
9. He then went on to allow the appeal.
10. The Respondent sought and was granted permission to appeal. In granting permission First-tier Tribunal Judge Grant said:
“The issue of maintenance and accommodation were not included in the refusal decision but were added (with the leave of the First-tier Tribunal Judge) by the Presenting Officer at the hearing. The appellant’s representative declined the offer of an adjournment. The appellant, through her sponsor, failed to meet the burden of showing on balance that the claimed accommodation was genuinely available to her. The First-tier Tribunal Judge was shown no documents at all but relied upon the oral evidence of the sponsor who was aware from the previous hearing of the appeal that he must produce credible evidence of the availability of the claimed accommodation. By relying of the oral evidence alone the First-tier Tribunal Judge has arguably erred in law”.
Thus the matter comes before me to determine whether the decision of First-tier Tribunal discloses a material error of law, such that the decision has to be set aside and remade.
Upper Tribunal Hearing
11. Prior to hearing submissions, Mrs Khan on behalf of the Appellant sought to introduce a further document. This is entitled “Mini-statement Printout from Santander”. This shows direct debit payments to Santander Mortgage account on behalf of Mr Mohammed Jamil ( the sponsor). I accepted that document into evidence.
12. Mrs Pettersen on behalf of the Respondent followed the lines of the grounds seeking permission. She submitted that the Judge had erred because he had simply accepted the Sponsor’s oral evidence which was that he had purchased a three bedroomed property and that the mortgage repayments were up-to-date. There was no documentary evidence showing those mortgage repayments even though the Judge had had sight of the Appellant’s bank account statements with the Halifax. The Sponsor’s oral evidence was that he pays £228 per month for his mortgage repayment. Therefore the Judge had failed to explain adequately why he accepted this oral evidence in the absence of any finding on credibility and the inconsistency over the Sponsor’s claimed employment.
13. Mrs Pettersen further submitted that the document put before me today did not assist. Rather it raised further questions. This document showed a series of mortgage repayments but there was no corresponding evidence to link those repayments with money coming out of the Sponsor’s Halifax bank account. There was no credible explanation of where the funds for the mortgage repayments came from. The determination was unsafe and the decision should be remade and the appeal dismissed.
14. Mrs Khan on behalf of the Appellant submitted that the decision of Judge Shimmin should stand. The Judge took oral evidence from the Sponsor and was satisfied with that evidence. So far as the mortgage repayments are concerned, she told me that the Sponsor has been withdrawing money (presumably in cash) from his Halifax bank account in order to fund the mortgage repayments. I did ask Mrs Khan to point out to me where this was shown on the Sponsor’s Halifax bank account, but she was unable to assist.
15. At the end of submissions there was no further evidence put before me. I reserved my decision which I now give with my reasons.
16. I am satisfied for the reasons outlined by Mrs Pettersen, that the Judge erred in law when making his decision to allow this appeal. He has given inadequate reasons to show how he reached the conclusion that he did in paragraph 23 of his determination wherein he states that he is prepared to accept the oral evidence of the Sponsor with regard to the mortgage repayments of £228 per month. This view is reinforced when reading paragraph 23 together with paragraph 24 where the Judge states that he is prepared to accept that the Sponsor is employed as claimed yet goes on to say there is some inconsistency in the sponsor’s evidence over when he started that job, which throws some doubt on the genuineness of the Sponsor’s employment.
17. In those circumstances, it is essential that the Judge sets out clearly why he is prepared to accept the oral evidence only of the Sponsor. This he has failed to do and this failure amounts to an error such that the decision needs to be set aside and remade.
18. Since I was satisfied that I had before me all available evidence, I have remade the decision.
Remaking the Decision
19. My starting point is, that I am satisfied that the evidence shows that the Sponsor is the owner of a three bedroomed house, which in terms of room space is clearly adequate to house him the Appellant and their child.
20. What is in issue is the adequacy of the financial arrangements put forward to fund the purchase of that property. The documents submitted by Mrs Khan today did not assist. I now have before me two sets of statements, the Sponsor’s Halifax bank account statements, which reflect his current account and a Santander mini-statement showing direct debits to fund the mortgage repayments. That document shows monthly repayments dated 17th January 2013 to 1st November 2013. The date of decision in this appeal I remind myself is 6th December 2012.
21. The Santander document shows that a direct debit has been set up to fund the mortgage repayments. What is not shown is where this money comes from. There is no evidence directly linking the mortgage repayments to the Sponsor. The Sponsor’s Halifax bank account shows no direct debit to Santander. It shows no appropriate cash withdrawal and there was simply nothing to show who is financing these repayments.
22. In those circumstances I cannot be satisfied that the Appellant has demonstrated that there are adequate financial resources available to her within the meaning of the Immigration Rules.
23. I did note that there is a letter in the documents which offers her employment. I placed no weight on this, because the letter is undated and more importantly makes no mention of any salary.
24. Finally Article 8 ECHR was not raised either in the original grounds of appeal, nor before the First-tier tribunal. It was not raised before me. Since the appellant has been competently represented throughout these proceedings I am satisfied that had there been any arguable Article 8 issues they would have been put forward.
DECISION
25. For the foregoing reasons I am satisfied that the decision of the First–tier Tribunal discloses an error of law requiring it to be set aside. I have remade the decision. The Appellant’s appeal against the decision of the ECO Islamabad refusing her entry clearance is dismissed.
No anonymity direction is made.
Signature Dated
Judge of the Upper Tribunal
Fee Award
I have dismissed the appeal and therefore there can be no fee award.
Signature Dated
Judge of the Upper Tribunal