Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/04529/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Tribunals
Decision & Reasons Promulgated
On 8th February 2017
On 20th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

mrs naila bibi
(ANONYMITY DIRECTION not made)
Appellant
and

ENTRY CLEARANCE OFFICER, ISLAMABAD
Respondent

Representation:
For the Appellant: No Appearance
For the Respondent: Ms H Aboni (Senior HOPO)

DECISION AND REASONS
1. The Appellant is a female, a citizen of Pakistan, who was born on 29th January 1993. She is 23 years of age. She seeks entry clearance to come to the UK as the spouse of a person present and settled in the UK, namely, of Mr Mohammed Abdulrahim Hussain, whose date of birth is 29th September 1993. She appeals against the decision of the Respondent Entry Clearance Officer dated 13th February 2015, which was upheld by the Entry Clearance Manager on 11th May 2015, that the Appellant's husband is not in a genuine and subsisting relationship with the Appellant and that there is no genuine intention to live together as man and wife.
2. The Appellant's appeal was heard by First-tier Tribunal Judge Obhi at Birmingham Sheldon Court on 8th January 2016 and promulgated on 19th January 2016. In the determination, the judge stated (at paragraph 24) that,
"Having considered the evidence and in particular the disability assessment, I am not satisfied that the Sponsor is capable of understanding what the phrase 'intend to live together permanently' means. The Sponsor knows that he is married, but as to whether he actually understands what this means, I am not that he does. The telephone transcripts do not suggest a genuine marital relationship".
3. On this basis, the judge went on to state that, "I am not satisfied on the evidence currently before me that the Sponsor understands the nature of an intimate marital relationship. The DLA assessment is the only objective evidence of the Sponsor's limitations and I have to place weight on it" (paragraph 25).
4. On 22nd June 2016 permission to appeal was granted on the basis that the judge had raised the issue of the Sponsor's mental capacity in circumstances where this had not been raised as an issue at all by the ECO or the ECM and that this deprived the Appellant of a fair hearing. On 1st July 2016, a Rule 24 response was put in by the Respondent on the basis that the Sponsor had been diagnosed with autism, mental retardation and psychosis and the judge was entitled to reach the conclusion that he did on the evidence presented.
5. At the hearing before me, the Appellant was not in attendance, and nor was there was any legal representative in attendance on his behalf. Instead, I had a letter from Syeds Law Office Solicitors, dated 7th February 2017, that this appeal be considered, "in absence of our oral representations or attendance by the Sponsor". The letter goes on to say that there is only one issue before this Tribunal and that is whether the hearing was "conducted fairly where the court found against the Appellant on a factor that was conceded by the Respondent".
6. I have to say at the outset, that this is simply not the case. It amounts to a misrepresentation of what the ECO decided. It is one thing to say that the ECO had not raised the issue of mental ill-health, which is what has been properly stated in the grounds of application, and quite another to say, as this letter of 7th February 2017 does, that the ECO had "conceded" the issue of mental ill-health. Even so, regardless of whether this is the case, it is not the law at all that the judge is bound by issues that were flagged up by the ECO, in that it is open to the judge to raise other matters that show that the Appellant cannot comply with the Immigration Rules under which the application is made. This has been well established since the case of RM (Kwok On Tong: HC 395 paragraph 320 India [2006] UKAIT 00039.
7. For her part, Ms Aboni stated that the judge had properly focused on the issue of mental capacity to undergo this marriage. She had properly done so. The Appellant had not been caught unawares. In fact, the judge actually raised this issue prior to the start of the hearing with the Appellant's representative, Mr Hussain, and inquired whether the Sponsor really had the capacity to even give evidence given his condition, and she records,
"Mr Hussain told me that the Appellant did not lack capacity to give evidence despite his mental health difficulties and that he did not lack capacity to marry although there is no medical evidence to confirm this. I told Mr Hussain that I was concerned that if I started to hear the case and the Appellant appeared to lack capacity it may have to be adjourned part heard ?" (paragraph 9).
8. The judge then went on to consider the decision of the ECO (paragraph 11), but it was of course the case that the Sponsor at that time had not been interviewed by the ECO, given that he was resident in the UK, and the decision maker could only look at the answers given by his wife, the Appellant, but even so decided that he could not be satisfied that the relationship was genuine and subsisting or that the couple intended to live together permanently.
9. She had regard to the Sponsor's mother's evidence who pointed out that the Sponsor "was capable of giving evidence in court if he was not asked too many questions and not for too long" (paragraph 13).
10. In her findings of fact, Judge Obhi came to a clear view that the Appellant's mother, "who completed this questionnaire provides a score of 8 in respect of his inability to engage with other people as that would cause him 'significant mental distress or is likely to behave in a way which could harm him or another person'" (paragraph 21). Finally, the approach in Kwok On Tong had been affirmed more recently in ZB and HB (Validity and recognition of marriage) Pakistan [2000] UKIAT 00040.
No Error of Law
11. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows. First, it is well established that a judge cannot allow an appeal on the ground that the decision was not in accordance with the Immigration Rules unless satisfied that the requirements of the Immigration Rules are met. The case of Kwok On Tong has established that an appeal is not limited to the issues raised in the Notice of Refusal.
12. Second, even if they were in this case, the Appellant still could not succeed because the judge has in the determination independently decided that the Appellant cannot demonstrate that her sponsoring husband intends to live permanently with the Appellant in a genuine and subsisting relationship.
13. This is because the judge observed that:
"I do not accept the evidence of the Sponsor's mother that having met the Appellant once when he was 8 years of age and again when he was 16 that he decided he wanted to marry her. The DLA assessment suggest that he has difficulty in engaging with people because doing so causes his significant mental distress, which simply echoed what his mother said about him giving evidence, namely that he could engage for a short period but would find it difficult to do so over a longer period" (paragraph 34).
14. The judge also went on to state that the Sponsor was not capable of understanding what the phrase "intend to live together permanently" means. Although he knows that he is married, he does not actually understand what this means and that, "I am not satisfied that he does. The telephone transcripts do not suggest a genuine marital relationship" (paragraph 24).
15. There certainly was no "concession" of any kind by the ECO or the ECM, in the way that those representing the Appellant now suggest in the letter of 7th February 2017, but quite independently of that, the judge was not satisfied on the evidence before her that the Sponsor could live in a marriage with the Appellant as that term is ordinarily understood.
16. This is despite the judge recognising that, "I do not rule out the possibility that there is a genuine subsisting relationship here and entirely accept that even in some extreme cases of poor mental health individuals are able to form lasting relationships but I do not have the evidence that this is one such case ?" (paragraph 25).

Notice of Decision
There is no material error of law in the original judge's decision. The determination shall stand.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 18th February 2017