The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/02033/2012


Heard at Field House
Determination Promulgated
On 21 May 2013
On 10 June 2013









For the Appellants: Ms A. Radford, Counsel instructed by Maliks and Khan Solicitors
For the Respondent: Ms Z. Kiss, Home Office Presenting Officer


Introduction and history
1. The appellants are citizens of Pakistan. The first appellant is the mother of the remaining appellants. They were born on 10 March 1984, 1 July 2005, 6 January 2007 and 20 October 2009, respectively.
2. On 5 October 2011 they applied for entry clearance as the spouse and children of a person present and settled in the UK. The first appellant's application was refused under paragraphs 281(i)(a) and 320(7A) of HC 395 (as amended). The applications of the remaining appellants were correspondingly refused under paragraph 301(i).
3. Their appeals came before First-tier Tribunal Judge Narayan who dismissed them. Permission to appeal having been granted, the appeals came before me.
4. The basis of the refusal of these applications for entry clearance was that the first appellant had submitted a false marriage registration certificate, evidenced in a document verification report (“DVR”). This led to the refusal under paragraph 320(7A) and the conclusion that she is not validly married to the sponsor.
5. The appellants had previously applied for entry clearance on the same basis in February 2010. Those applications were also refused, it having been said that a false marriage certificate was produced in support of the application. However, the appellants’ appeals against those decisions were allowed by Immigration Judge Keane in a determination promulgated on 7 September 2011. He also gave a direction that entry clearance be granted to the appellants.
6. In refusing these present applications the Entry Clearance Officer (“ECO”) stated in relation to the first appellant that “the document submitted (marriage registration certificate) at the appeal [before Immigration Judge Keane] was not submitted at the time of application or appeal.” The reference to “appeal” I take to mean the notice of appeal, rather than the appeal hearing itself before Judge Keane, otherwise the comment makes no sense.
7. In granting permission to appeal, Upper Tribunal Judge Jordan gave comprehensive directions which reflected the factual complexity of the appeals. The matter initially came before me on 26 February 2012 for mention only. On that date, as my subsequent directions make clear, the respondent’s representative did not have any case papers and was not therefore in a position to confirm compliance with Judge Jordan’s directions. Those directions were reiterated by me in writing on that date.
8. The appeals next came on for hearing on 10 April 2013 when I heard submissions from the parties. At that hearing I decided that there was an error of law in the decision of First-tier judge Narayan which required the decision to be set aside. The appeal was not able to proceed to a conclusion on that date because the respondent’s representative sought time to consider the authorities referred to in the appellants’ skeleton argument. On that date I issued further directions which required the respondent to file and serve a written response to [6] of the appellant's skeleton argument.
9. At the hearing on 21 May 2013, I was informed by Ms Kiss for the respondent that although she had recently had sight of a file for the respondent, that file had not found its way to the hearing. She was therefore without any respondent’s papers and relied on a copy bundle provided to her by the Tribunal. She also acknowledged that the direction requiring a response to the appellants’ skeleton argument had not been complied with.
10. I shall refer to the parties’ submissions as necessary in the course of my analysis.
Error of law
11. The error of law that I identified at the hearing on 10 April 2013 and which resulted in the decision being set aside was in terms of First-tier judge Narayan failing to have regard to the determination of Immigration Judge Keane who allowed the appeals in relation to the earlier applications for entry clearance.
12. The appeals before the First-tier Tribunal were considered without a hearing, the appellants indicating that course on the notices of appeal. It appears that Judge Narayan did not have before him the determination of Immigration Judge Keane. However, it is plain that he was aware that there was a previous determination of appeals by these appellants because it is referred to in the notice of decision of the first appellant in this appeal. Judge Narayan also referred to the fact of the previous appeals in the determination when reciting the respondent’s reasons for refusal.
13. At the hearing on 10 April 2013, Ms Kenny initially submitted that the issue of the previous determination of Judge Keane was not raised in the grounds of appeal to the First-tier Tribunal. However, as was established, that is not the case. The first appellant specifically referred to that appeal, mentioning the judge's name and the appeal reference number. She also referred to the marriage document that was in issue in that appeal.
14. I am satisfied that Judge Narayan fell into error in determining these appeals without considering the determination of Judge Keane. That determination should have been the starting point in Judge Narayan’s deliberations given the reference to it in the notice of decision refusing the first appellant’s application, and the fact that it was referred to in the Entry Clearance Managers’ review. Although Judge Narayan was not provided with a copy of that determination, it would have been possible for him to obtain it. In the alternative, the respondent could have been directed to provide a copy.
15. Ms Radford made the additional point that the respondent should have provided the previous determination in accordance with rule 13(1)(c) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, it being an unpublished document referred to in the notice of decision.
Re-making the decision
16. The notices of decision do not raise any issues under the Immigration Rules other than those I have referred to. On no occasion in the course of this appeal has any representative for the respondent suggested that, for example, issues of maintenance and accommodation were at large and I note that evidence in respect of those aspects of the Rules was put before the ECO.
17. Ms Radford submitted that given that Judge Keane had given a direction that entry clearance be granted, the ECO was not entitled to refuse to grant entry clearance. She referred me to section 87(2) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") which states that “A person responsible for making an immigration decision shall act in accordance with any relevant direction under subsection (1).” Judge Keane made such a direction.
18. As I understood Ms Kiss’ submission on that point it was that if I did not agree with her primary submission that the ECO was entitled to refuse the applications, then I should find that entry clearance should have been granted. However, she also suggested that the ECO would have been entitled to cancel the entry clearances immediately.
19. In a sense, the application of s.87(2) and whether in consequence the decisions of the ECO were not in accordance with the law is dependant on the success of the appellants’ main argument which is that the issues in this appeal had already been determined by Judge Keane and there is nothing new to displace his conclusions. That is in any event the outcome sought on behalf of the appellants. A conclusion that the decisions are not in accordance with the law in consequence of s.87(2) is the appellants’ ‘fall back’ position. However, as is apparent from my analysis below, the outcome of these appeals goes further than that.
20. It is as well to start with a statement of the obvious, namely that it is for the appellants to establish that they meet the requirements of the Rules, and that the standard they must meet is a balance of probabilities. The obvious also includes the requirement that it is for the respondent to establish on a balance of probabilities that paragraph 320(7A) applies and, for reasons that are elaborated on below, it is evident that the respondent has not discharged that burden to the required standard.
21. In accordance with established principle, I take as the starting point the determination of Judge Keane. The applications he was dealing with were made in February 2010. The decisions to refuse the applications were made on 17 September 2010. There was a DVR before him. Amongst the documents before me there is a DVR dated 1 July 2010. That related to a document described as a marriage certificate and one Zahir Muhammad was apparently spoken to. Next to his name are the words “secretary union council”.
22. It is apparent from [21] of Judge Keane’s determination that this was the same DVR that was before him, he having referred to the name of Zahir Muhammad and the four bullet points on the DVR. In finding that the DVR did not establish that a false document had been submitted he referred to evidence that he had before him to the effect that a new system in relation to the issuing of marriage certificates had been instituted. That evidence was that the marriage certificate is not issued by the Union Councils but by the National Database and Registration Authority. He concluded that “The marriage registration certificate was not a document which the Union Council would have retained because it had never issued the document in the first place.”
23. At [20] he found that the original marriage certificate was in fact in the possession of the ECO, and indeed the presenting officer at the hearing confirmed that this was the case. It appears from the DVR that no original document was submitted which was part of the basis for the conclusion that what was submitted was not a genuine document. Judge Keane remarked in [21] on the significance of this to the document verification process.
24. Judge Keane concluded that there was a valid marriage; that the document submitted to the ECO in support of the application for entry clearance had not been established as being false. Having heard other evidence in relation to the marriage of the first appellant and the sponsor he concluded at [17] that he was “entirely satisfied that Mrs Ahmed and the sponsor were married to each other at a village ceremony which took place in September 2004.” He also noted that it was not disputed that the minor appellants were the children of the first appellant and the sponsor, a matter of significance when considering whether they were validly married.
25. In the notice of decision in the appeal before me it is said that “the document submitted (marriage registration certificate) at the appeal [before Immigration Judge Keane] was not submitted at the time of application or appeal. Therefore, we did not have access to the document until after the Immigration Judge’s decision was made.”
26. However, as is apparent from the references at [23] above to Judge Keane’s determination, it is clear that the judge was satisfied that the original document was in fact in the possession of the respondent prior to the appeal hearing before him. It is not the case therefore, as appears to be suggested in the notice of decision relating to the appeals before me, that Judge Keane was assessing the DVR, or the validity of the marriage, on some new document that had not been before the ECO. The reference at [11] of Judge Keane’s determination to a further copy of the marriage registration certificate having been produced does not detract from the judge's findings in relation to what document was in fact the subject of the DVR. On that analysis, there was no basis for the refusal of the applications which are the subject of this appeal. The question of the genuineness of the marriage certificate had already been adjudicated on by Judge Keane.
27. At the hearing on 21 May, I asked Ms Kiss whether she was able to say what marriage document was before the ECO prior to the appeal before Judge Keane, and what marriage document was before Judge Keane. She was unable to do so. This brings the issue back to the basic proposition that it is for the respondent to establish that paragraph 320(7A) applies.
28. In the circumstances, it is not necessary to consider the further DVR relied on by the respondent in terms of the refusals which are the subject of these appeals. The question of the validity of the marriage is already the subject of an unappealed decision of Judge Keane and it has not been established that there was any ‘new’ document before him which informed his decision.
29. Even if it were necessary to evaluate the evidence in the latest DVR dated 15 December 2011 I would still not have been satisfied that the respondent had established that the appellants had submitted a false document. The DVR describes the type of document submitted as “Nikah Nama (Marriage Certificate)”, although the two types of document are different, as established in the evidence before Judge Keane. That is of no significance however, because the Form No. is given. This corresponds to the “Marriage Registration Certificate” in the respondent’s bundle. It appears that the “secretary union council Jhanda” stated that there is no record for the marriage certificate in their office. That of course presupposes that there would be such a record. I have already referred to the evidence accepted by Judge Keane to the effect that the Union Council does not issue those certificates.
30. That aside, as Ms Radford submitted, there is no complete record of the conversation between the ECO’s representative and the person he/she spoke to. As she submitted, it is not known whether the individual spoken to confirmed that there would have been such a record if the marriage had taken place. To that I would add that there is no information from the respondent as to the process, basis or reliability of the record keeping.
31. All those observations must be considered in the context of the evidence accepted by Judge Keane which gave support to the claim that the first appellant and the sponsor are validly married. That evidence was reinforced by the evidence before me in terms of continued contact between the appellants and the sponsor and financial support from the sponsor. There is no dispute that the minor appellants are the children of the first appellant and the sponsor. As previously indicated, this was a matter that was taken into account by Judge Keane.
32. Accordingly, I am not satisfied that the respondent has discharged the burden of proof in establishing that a false document has been submitted in support of the applications. I am satisfied that the first appellant has established that she is (validly) married to the sponsor. None of the other requirements of the Rules are said to be in issue in relation to any of the appellants.
33. Section 87(1) of the 2002 Act allows the Tribunal to give a direction for the purpose of giving effect to its decision. Section 81 states that ‘Tribunal’ means the First-tier Tribunal. However, section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007 allows the Upper Tribunal, in re-making a decision, to make any decision that the First-tier Tribunal could make if it were re-making the decision. This therefore permits the Upper Tribunal to direct the grant of entry clearance, which I do.
34. The decision of the First-tier Tribunal involved the making of an error on a point of law. The decision of the First-tier Tribunal is set aside and the decision re-made allowing the appeals of each appellant under the Immigration Rules.
35. I direct that each of the appellants be granted entry clearance forthwith.

Fee Award Note: this is not part of the determination.

In the light of my decision to re-make the decision in the appeals by allowing them, I have considered whether to make a fee award (rule 23A (costs) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007).

I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).

I make a whole fee award.

Reasons: The appellants’ appeals have been allowed on the merits.

Upper Tribunal Judge Kopieczek