Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA039442015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9th June 2016
On 20th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

iman farousi
(ANONYMITY DIRECTION not made)
Appellant

and

THE Entry Clearance Officer - AMMAN
Respondent

Representation:

For the Appellant: Ms M Malhotra of Counsel, instructed by Arkas Law
For the Respondent: Mr S Kandola, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against the decision of Judge Stott of the First-tier Tribunal (the FTT) promulgated on 2nd October 2015.
2. The Appellant is a female Syrian national who applied for entry clearance as the spouse of a British citizen, Kifah Johnson to whom I shall refer as the Sponsor.
3. The application was refused on 29th January 2015. In summary the Respondent gave three reasons for refusing the application under the Immigration Rules. Firstly it was not accepted that the Appellant's relationship with the Sponsor was genuine or subsisting, nor was it accepted that they intended to live permanently together in the United Kingdom.
4. Secondly it was not accepted that the financial requirements were satisfied in that specified documents to prove the Sponsor's salary had not been submitted.
5. Thirdly it was not accepted that the Appellant had submitted evidence to prove that she satisfied the English language requirements as she has not produced evidence of passing an English language test at level A1 of the CEFR with a provider approved by the Secretary of State.
6. Finally the Respondent did not accept that the application disclosed any exceptional circumstances which would justify a grant of leave to enter the United Kingdom outside the Immigration Rules pursuant to Article 8 of the 1950 European Convention on Human Rights.
7. The Appellant appealed pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) and requested that her appeal be decided on the papers rather than at an oral hearing.
8. The appeal was therefore decided on the papers as requested. The FTT found that the Appellant had submitted further documentation with her appeal, and was satisfied that evidence had been submitted from the Sponsor's employer to prove he satisfied the financial requirements.
9. The FTT did not however accept that the Appellant had proved that she had a genuine and subsisting relationship with the Sponsor. The FTT noted the absence of witness statements from both the Appellant and Sponsor, and noted that although numerous screen prints had been produced to prove communication, the majority were in Arabic "with a handful containing English text.". The FTT found that this material was not dated and there was no translation of the documents in Arabic. There was no indication of the parties having met since their marriage.
10. There was no satisfactory evidence to show that the Appellant had taken and passed an English language test at level A1 of the CEFR.
11. The FTT noted that the birth certificate of a child had been produced, but the father's name on the birth certificate was not that of the Sponsor. The FTT did not find that it had been proved that family life existed between the Sponsor and Appellant, and therefore the appeal was dismissed pursuant to Article 8, as well as under the Immigration Rules.
12. The Appellant applied for permission to appeal to the Upper Tribunal, and permission to appeal was refused by Judge Shimmin. The Appellant had not had legal representation, but following refusal of permission to appeal, it appears that legal representatives were instructed, and further grounds seeking permission to appeal were settled by Counsel.
13. In summary it was contended that the FTT had erred in law when considering whether there was a genuine and subsisting relationship, by failing to take into account the principles in Goudey Sudan [2012] UKUT 00041 (IAC). It was also contended that the Appellant and Sponsor have a child together, but the FTT had placed little or no weight on this cogent evidence, because the father's name on the birth certificate was not that of the Sponsor. It was contended that the FTT had erred by not appreciating that the Sponsor had officially changed his name by deed poll on 31st March 2015, which explained the different name on the birth certificate and therefore the birth certificate proved that the Sponsor is the father of the Appellant's child. It was contended that the deed poll had been sent to the Home Office.
14. In relation to the English language requirement the Appellant is a Syrian national, resident in Syria, and there is currently no approved English language test centre in Syria. Therefore the Appellant could not satisfy the English language requirement of the rules, and the Respondent should have considered exercising discretion, and the FTT had erred by failing to consider whether the Respondent should have exercised discretion.
15. Permission to appeal was granted by Upper Tribunal Judge McWilliam in the following terms;
"The judge determined the appeal on the papers, at the request of the Appellant. There was no witness statement from the Appellant or the Sponsor and the judge was not assisted by the Appellant. However, it is arguable that the judge did not take into consideration the deed relating to the Sponsor having changed in the context of paternity of the British citizen child."
16. Directions were issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FTT decision contained an error of law such that it should be set aside.
Oral Submissions
17. Ms Malhotra submitted that the Sponsor had sent the change of name deed to the Tribunal, and the FTT had therefore erred by failing to consider this evidence, which explained why the name on the child's birth certificate was not that of the Sponsor.
18. Ms Malhotra requested that the decision of the FTT be set aside for the reasons given in the grounds contained within the application for permission to appeal.
19. Mr Kandola submitted that the judge had not erred in finding that the burden of proof had not been discharged in relation to the issue of a genuine and subsisting marriage. The FTT could not give weight to untranslated documents which the Appellant relied on to show communication between her and the Sponsor. It was not accepted that the change of name deed had been submitted to the FTT.
20. Mr Kandola accepted that there may have been some force in the ground relating to the English language test if that had been the only reason for refusal, but it was not, and therefore the FTT decision disclosed no material error of law.
21. By way of response Ms Malhotra pointed out that the Sponsor had provided a copy of his passport which contained stamps showing that he had travelled back to Syria, and therefore this was evidence that the parties had met since their marriage.
22. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
23. I firstly consider the FTT finding that the burden of proof had not been discharged in relation to the existence of a genuine and subsisting relationship, and an intention to live permanently together. It is accepted that the FTT was correct to note that neither the Appellant nor the Sponsor had submitted witness statements. The FTT also correctly noted that the copy screenshots which had been produced to demonstrate communication, had not, in the vast majority of cases, been translated, and therefore could not be relied upon.
24. A birth certificate had been produced showing that the Appellant is the mother of a child. The FTT correctly noted that this certificate did not show the Sponsor to be the father, and noted that the father had a different name to the Sponsor.
25. The Appellant's case is that this was explained by the Sponsor changing his name by deed poll, and submitting that change of name deed to the FTT. This appears to be why permission to appeal was granted.
26. My view is that if that change of name deed was before the FTT, then it was overlooked by the FTT, and this would amount to an error of law.
27. However I have very carefully perused all the documents in the Tribunal file. There are now a very considerable number of documents, and it is clear that some of these documents have been submitted after the FTT decision was promulgated.
28. I do not find that the change of name deed was included in the documents submitted to the FTT. I have located a bundle of documents that was submitted on behalf of the Appellant, which is not indexed or paginated. Documents in this bundle are in fact referred to in the FTT decision at paragraphs 8-11. Those documents include a letter from the Sponsor's employer, documents submitted from the Rai Language Centre, the screen prints, the majority of which are in Arabic, and a divorce certificate. The FTT makes no reference to the Sponsor's change of name deed, and having examined the bundle of documents I am satisfied that this change of name deed was not submitted. It is clear that the change of name deed has now been submitted, but I find that this was submitted after the FTT decision was promulgated and sent out, and was included in the documents submitted with the application for leave to appeal to the Upper Tribunal.
29. Therefore there was no satisfactory explanation before the FTT to confirm why the father's name on the child's birth certificate was not that of the Sponsor. I therefore conclude that the FTT did not err, taking into account the evidence that was before it, in concluding that the Appellant had not proved that she had a genuine and subsisting relationship with the Sponsor.
30. With reference to English language, the Grounds of Appeal submitted to the FTT did not contend that there was no approved English language test centre in Syria. Documents submitted by the Appellant were not from an approved test provider, and in the absence of any explanation, I conclude that the FTT did not err in law in dismissing the appeal on this basis.
31. Because the FTT had found, in relation to the Immigration Rules, that there was no genuine and subsisting relationship, the FTT did not err when considering Article 8, in concluding that family life did not exist.
32. The decision of the FTT therefore stands. However, I note that there was a review of the initial decision by the Entry Clearance Manager but inexplicably this did not take place until 23rd December 2015, a considerable period of time after the FTT decision had been promulgated and sent out. The parties to this appeal were advised on 27th July 2015 that the appeal would be decided on the papers on or after 22nd September 2015, and the decision was promulgated on 2nd October 2015.
33. It is therefore not clear why the ECM reviewed the decision so longer after the FTT had promulgated its decision, but the point is that in the review the ECM accepted that due to further evidence that had been submitted, it was conceded that there is a genuine and subsisting relationship between the Appellant and Sponsor. The review went on to maintain refusal based upon the lack of a satisfactory English language test.
34. The position therefore appears to be that because the ECM review was not before the FTT, the FTT decision must stand in relation to the relationship as well as the English language test, but that now the Respondent accepts that all of the requirements of the Immigration Rules are satisfied with the exception of the English language test. It would seem appropriate therefore for the Appellant to make a fresh application, to deal with the English language issue, and if such an application is made, the Appellant and Sponsor may wish to consider having legal representation to assist with the making of that application. That however is obviously a matter for them.
Notice of Decision

The making of the decision of the FTT did not involve the making of an error on a point of law such that the decision must be set aside. I do not set aside the decision. The appeal is dismissed.

Anonymity

No anonymity direction was made by the FTT. There has been no request for anonymity made to the Upper Tribunal and no anonymity order is made.

Signed Date 16th June 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed. There is no fee award.

Signed Date 13th June 2016

Deputy Upper Tribunal Judge M A Hall