OA/02625/2014

• Status of case: Unreported
• Hearing date: 13 Sep 2016
• Promulgation date: 14 Sep 2016
• Publication date: 23 Apr 2020
• Last updated on: 23 Apr 2020

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/02625/2014


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 13th September 2016
On 14th September 2016



Before

UPPER TRIBUNAL JUDGE COKER


Between

OLUFEMI ROSELINE OMOWAYE
Appellant
and

ENTRY CLEARANCE OFFICER - Lagos
Respondent


Representation:
For the Appellant: Mr J Rene instructed by Queen's Park solicitors
For the Respondent: Ms A Fijiwala, Senior Home Office Presenting Officer


DETERMINATION AND REASONS
1. Ms Omowaye applied for and was refused entry clearance as the spouse of Mr [A] (the sponsor). Her appeal against that decision was heard by the First-tier Tribunal on 4 November 2015 and in a decision promulgated on 10 November 2015, dismissed.
2. Lengthy grounds of appeal identified what were claimed to be evidence the judge had failed to take into account or failed to place any or any adequate weight upon, that the judge had misinterpreted the evidence before her, had failed to give adequate or any reasons for making adverse inconsistency findings, failed to put relevant matters to the sponsor and failed to assess the evidence in the context of this couple, their ages and personal situations to the extent that her decision that the marriage was not genuine and subsisting was irrational and/or perverse.
3. Permission to appeal was granted on 9th August 2016, attention in particular being drawn to the photos and WhatsApp conversations.
4. Evidence it was contended had not been adequately considered included as follows:
(i) The judge incorrectly characterised as an inconsistency on the development of the couple relationship, their evidence that they first met in November 2011, that they met again in May 2012 and it was then that their relationship commenced and thereafter they began communicating by telephone and WhatsApp. The judge stated she was unable to identify the dates of the telephone calls and the WhatsApp messages because they were illegible yet the ECO had identified (and accepted) the dates in the decision;
(ii) The judge failed to give any or any adequate reasons for reaching the conclusion, contrary to the sponsor's evidence that he was not a 'card person', that it was reasonable to expect the couple to have exchanged cards on birthdays or anniversaries as visible reminders of their relationship, despite visible reminders existing in the form of WhatsApp and text messages; asserts the sponsor's statement that not being a 'card person' was unsatisfactory without providing adequate reasoning for such a conclusion;
(iii) Failed to take account of the photos, which had been before the ECO, which clearly showed the couple had met on different occasions;
(iv) Failed to take account of the documentary evidence of travel to Nigeria as claimed;
(v) Failed to have any or any adequate regard to telephone cards;
(vi) Failed to have regard to the information from the sponsor's son that he and the appellant are in contact through Facebook;
(vii) Incorrectly drew an adverse conclusion based upon two visits after the refusal of entry clearance and no visits between the submission of the application and the refusal, without putting to the sponsor the reasons for that;
(viii) Failed to have regard to the visits made by the sponsor to Nigeria after the decision to refuse entry clearance, as evidenced by travel documentation and finding the sponsor had changed his evidence.
5. The First-tier Tribunal considered the evidence but has failed to consider that evidence in the context of the evidence as a whole. The issues identified by the judge as creating the reasoning for the adverse conclusion are small matters which could be characterised as 'nit-picking' and do not consider the evidence as a whole. The conclusion drawn from the use of telephone cards may have stood if it was the only evidence before her, but the use of telephone cards has to be seen in the context of the evidence as a whole including the WhatsApp messages, the visits and the photos. The judge has failed to consider the background circumstances of the couple, the sponsor's son's evidence and the application form completed by the appellant.
6. It is also notable that the judge (in [20]) approached the evidence before her as a review of the material before the ECO and whether the ECO had reasonable grounds for reaching the decision he did. The appeal before the First-tier Tribunal is not a review of the reasonableness of the ECO's decision but a decision on the evidence and facts before it. Although this was not specifically pleaded it is a matter of relevance when the decision as a whole is considered in the light of the evidence before the First-tier Tribunal.
7. Taking all of these matters into account, and recognising that the threshold to be crossed is a high one, I am satisfied that the decision of the First-tier Tribunal was irrational. There has been a material error of law and I set aside the decision to be remade.
8. When I have set aside a decision of the First-tier Tribunal, s.12(2) of the TCEA 2007 requires me to remit the case to the First tier with directions or remake it for myself. I conclude in this case that the evidence relied upon by the appellant requires assessment as to its credibility and weight to be accorded, applying the correct legal framework, a matter which in the context of this appeal should not be undertaken by the Upper Tribunal. I therefore remit the appeal to the First-tier Tribunal.
Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision
I remit the appeal to the First-tier Tribunal


Date 13th September 2016

Upper Tribunal Judge Coker