Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/04422/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 January 2017
On 25 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

mrs sharmin sultana
(ANONYMITY DIRECTION not made)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr A Rahman, Legal Representative, Jalalabad Law Associates
For the Respondent: Mr P Armstrong, Senior Home Office Presenting Officer

DECISION AND REASONS
Background
1. The appellant is a citizen of Bangladesh aged 27. She appealed against the decision of the respondent dated 20 January 2015 refusing her application for leave to enter the UK as the partner of a person present and settled in the UK under Appendix FM. In a decision promulgated on 22 July 2016, Judge of the First-tier Tribunal G A Black dismissed the appellant's appeal.
2. The appellant appeals with permission to the Upper Tribunal on the grounds that the judge's findings in respect of the question as to whether the appellant's relationship with her sponsor was subsisting were "very inadequate". It was argued that the judge made no findings about the regular remittance money slips and that there was other evidence that showed that there were regular communications between the parties and that the judge did not give any weight to this evidence. It was submitted that the judge failed to make adequate findings in relation to the most recent visit by the sponsor to see the appellant in March 2016 which was supported by the sponsor's passport and photographs. Permission was granted on the basis that the grounds were arguable, particularly as the decision consisted of "only three pages in just two paragraphs of findings".
3. Mr Rahman provided the Tribunal with a skeleton argument and with copies of the starred case of GA ("subsisting" marriage) Ghana* [2006] UKAIT 00046 and Naz (subsisting marriage - standard of proof) Pakistan [2012] UKUT 00040.
4. The sole issue of dispute in the appeal before the First-tier Tribunal was whether the appellant and the sponsor had demonstrated that their marriage was subsisting. The judge was not satisfied that they had.
5. I share the respondent's conclusion that the grounds merely disagree with the decision and seek to reargue the case. The issue in this appeal was whether the relationship was subsisting, the marriage having been accepted. Although the judge's reasoning is brief and succinct, it cannot be characterised as inadequate. Mr Rahman conceded that the fact that a decision is brief in itself does not mean that it fell into error.
6. It was Mr Rahman's submission that the judge erred in drawing adverse inference from the fact that reference had been made to the parties maintaining contact by mobile, Skype and Viber, whereas in the grounds of appeal it was confirmed that contact had only been through mobile phone. It was argued in the grounds for permission that the judge did not raise the concern at the oral hearing in relation to Skype and Viber. In the grounds for permission it was indicated that the sponsor in his witness statement said that:-
"I did not realise that I have to keep all phone call history records from the beginning of our relationship, nor did I know that the phone company is unable to produce their phone call records beyond three months back".
However, that is a different issue from the Skype and Viber question. In the refusal of entry clearance dated 20 January 2015 the respondent noted that the appellant stated that she maintained contact with the sponsor by "mobile, Skype and Viber", but it was noted that she had not provided any evidence of contact by Skype or Viber as stated, despite having claimed to have been in a relationship since 5 November 2011.
7. However, in the grounds of appeal to the First-tier Tribunal it was stated:-
"That, the appellant have regular contact over mobile phone only, wrongly mentioned Viber & Skpee (sic), in the appendix-2 without asking appellant by computer provider therefore appellant extremely sorry for this unwanted mistake."
8. The appellant was on notice in the refusal of entry clearance that the respondent was not satisfied that there was any evidence of Skype or Viber contact. Therefore it was open to the judge to draw the conclusion that she did that it was of concern that the appellant clearly stated in her visa application, at question 1.8 that she kept in contact with her sponsor by 'mobile, skype, viber, etc' but then confirmed that it was only through mobile phone. The judge was not satisfied that there had been an adequate explanation as to why the other forms of contact had been mentioned, when in fact it was clear that there had been no contact maintained through those social medium. Given that the explanation in the grounds of appeal refers to "without asking appellant by computer provider therefore appellant extremely sorry for this unwanted mistake" and that in the grounds of appeal to the Upper Tribunal at paragraph 2 the grounds refer to a different explanation that the sponsor did not realise he had to keep all phone call history records, an adequate explanation has still not been provided on this issue. It was open to the judge to reach the conclusion she did on this issue. The sponsor's witness statement dated 30 June 2016 is also silent on the issue of Skype and Viber when the sponsor was aware of the respondent's concerns.
9. Whilst the grounds for permission to appeal, the skeleton argument and Mr Rahman before me, attempted to reargue the appeal including stating that "there were numerous evidential factors pointing towards a relationship being genuine and subsisting", the judge has given adequate reasons for the findings that she reached. The fact that those findings were succinctly confined to two paragraphs (and I note that the paragraphs run to almost three-quarters of a page and therefore take up a large part of the decision which, as noted, was on a single issue) is not an error, material or otherwise.
10. It was argued that the judge fell into error in failing to make findings in relation to the financial remittances. It was again accepted by Mr Rahman that it is not an error to fail to make a finding on each and every piece of evidence. The judge set out at [11] that the appellant produced a bundle which included itemised telephone bills, payslips and bank statements. Although there were no bank statements in the bundle before me which consisted of a skeleton argument, sponsor's statement, proof of the sponsor's recent visit, the sponsor's photographs during recent visit and remittance slips (and the judge referred again at [11] to the bundle including photographs taken of the appellant and the sponsor in Bangladesh on a recent visit in March 2016) it would appear that the judge was referring to the remittance slips when she indicated "bank statements". Any error is not material. The judge found at [12] that the evidence of the sponsor was "mainly truthful" but some aspects were unreliable. The judge found that the parties entered into a lawful marriage and that they had met once in February 2013 and then again in March 2016 and that there were photographs showing the marriage and showing the visit in 2016, "However, other than that there is no other evidence to show that the parties lived together in Bangladesh".
11. The judge made findings that the "main evidence consists of itemised telephone bills from October 2014 for a period of two months and further up-to-date bills have been produced showing contact with the number ending 6462". The weight the judge placed on the evidence was a matter for her and the fact that she did not consider the evidence of remittances to be "the main evidence" does not mean that it was not considered. The judge's concerns in relation to the reliability of the evidence in relation to the subsistence of the marriage on a balance of probabilities outweighed the evidence of contact such that it was.
12. In addition to listing her concerns in relation to only two visits during the period, the judge, as noted above, set out her concerns in relation to the discrepancies about the mode of contact (Skype and Viber). The judge also noted that the sponsor stated he was unaware that he would be required to produce evidence of contact with his wife and that he was unaware he would not be able to access bills dating back a number of years. It was open to the judge, at [13] to not find this evidence reliable and in reaching this finding she took into account the practical difficulties obtaining such evidence, but nevertheless was of the view that the appellant had been able to produce telephone bills for a period, but it was of only two months in 2014 and none since the end of that period until 5 May 2016. It was open to the judge to find that this was insufficient to show a genuine and subsisting relationship given the lack of evidence of ongoing contact and continuity of a subsisting relationship. The judge also took into consideration that there had been a considerable passage of time of five years during which the parties had only seen each other on two occasions.
13. Mr Rahman's argument was essentially a disagreement with the weight that the First-tier Tribunal Judge attached to the evidence before her, which was adequately considered by her. It was open to the judge to find that there was an inadequacy of evidence and not to be satisfied that the evidence was reliable in light of that inadequacy, including the lack of adequate and reliable evidence of a subsisting relationship over the relevant period.
14. Mr Rahman relied heavily on GA and Naz (above). However the judge's decision and reasons disclose that she had in mind that the requirement for a marriage to be subsisting is not limited to considering whether a marriage is valid and requires an assessment of the current relationship between the parties and a decision as to whether in the broader sense marriage is subsisting, and that post decision visits are admissible. The judge took all of the evidence into account including, contrary to Mr Rahman's submission, the sponsor's 2016 visit (which the judge referred to at [11], [12] and [13] of her decision). However the judge was not satisfied on the balance of probabilities that there was a subsisting relationship.
15. Looking at the judge's decision as a whole, it cannot be said that her conclusion is irrational, albeit that another judge may well have reached a different decision. Irrationality is a high threshold to overcome and is not reached in this case. Equally for the reasons set out I reject the appellant's submission that the judge failed to give adequate reasons for the conclusions she reached.
Notice of Decision
16. The decision of the First-tier Tribunal Judge does not disclose an error of law capable of affecting the outcome of the appeal and is to remain standing.
No application for an anonymity direction was sought or is made.

Signed Date 25/01/2017

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

As the appeal is dismissed there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Hutchinson