Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/05354/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13th March 2017
On 21st March 2017

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

mrs samia masoor
(anonymity direction not made)
Appellant
and

ENTRY CLEARANCE OFFICER - ISLAMABAD
Respondent

Representation:
For the Appellant: Mrs Yasmin Farzana as a McKenzie Friend
For the Respondent: Mr P Singh, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Pakistan born on 29th November 1989. Her application for entry clearance as a spouse of a British citizen was refused on 16th February 2015. The Appellant appeals against the decision of First-tier Tribunal Judge Devittie dismissing her appeal under the Immigration Rules.

2. Before the Entry Clearance Officer [ECO] was the following evidence: a marriage certificate, wedding photographs and money transfers. The Appellant had last seen the Sponsor on 11th February 2014. The ECO concluded that there was insufficient evidence that the relationship was genuine and subsisting and the parties intended to live together permanently.

3. Further evidence was submitted by the Appellant: photographs, greeting cards and evidence of visits. The matter was reviewed by the Entry Clearance Manager [ECM] who maintained the refusal. The ECM stated:

“I note that the grounds of appeal state that the sponsor’s mental health issues mean that he may have found it difficult to communicate with the Appellant during 2014. However, this calls into question his ability to consent to the marriage in 2013 and his ability to consent to the continuation of the relationship in 2014 and 2015. UK Visas have made enquires with local mental health staff who are familiar with the sponsor’s condition and they have stated that the sponsor lacked capacity at the time of their latest assessment (19th June 2015) to consent to a marriage. I am satisfied that this would also apply to the continuation of a relationship. The medical letter submitted by the Appellant also details the sponsor’s mental health history and the long-term mental health issues described in this letter also cast doubt on the Sponsor’s ability consent to the marriage.”

4. The First-tier Tribunal dismissed the appeal on the basis that the evidence of contact between the Appellant and the Sponsor was wholly inadequate. The judge doubted the Sponsor’s capacity to consent to a marriage and commented that an opinion from a mental health professional with knowledge of the Appellant would have assisted.
5. Permission to appeal was granted by First-tier Tribunal Judge Landes on 30th January 2017 on the basis that it was arguable the judge erred in law in his approach to the evidence of contact. The judge had failed to take into account photographs and the Sponsor’s passport, which were both available at the hearing. It was also arguable that there was a material procedural irregularity because the judge failed to ensure that the Respondent’s evidence was before the Appellant who was not represented. There was relevant evidence about the Sponsor’s mental health, which could have been provided had the judge raised the issue of mental capacity to marry at the hearing.

Discussion and Conclusions

6. I find that the First-tier Tribunal judge erred in law in failing to consider the evidence of contact which was produced by the Sponsor at the hearing. He produced an extensive photo album showing his numerous visits to see the Appellant. He also produced his passport showing his visits to Pakistan and boarding passes for all his flights including his trip to Dubai.

7. The ECO was not satisfied that the relationship was genuine and subsisting, therefore it was incumbent on the judge to take into account evidence that went to this issue. At the hearing before the First-tier Tribunal, the Appellant produced this evidence but the judge failed to look at the photograph album or the passport and neither are referred to in his decision. At best the judge stated that the Sponsor had visited the Appellant on more than one occasion since their marriage.

8. I find that the judge erred in law in finding that the evidence of contact was wholly inadequate because there was evidence, which could have led him to a different conclusion, but he failed to take it into account.

9. Secondly, the judge expressed doubt as to the Sponsor’s mental capacity and this has taken up a fair proportion of his decision from paragraphs 10 to 13. The Appellant was not served with the Respondent’s bundle and therefore was not aware that the point on mental capacity had been made by the ECM. The Sponsor attended the appeal hearing without representation and did not have the benefit of his sister who appeared as a McKenzie friend at this hearing. The judge did not give the Sponsor the opportunity to respond to this point or to provide evidence in support. Such evidence existed and was in the Sponsor’s possession at the hearing. Had the judge taken into account this evidence he could well have come to a different conclusion.

10. Accordingly, I find that the judge erred in law in failing to take into account relevant evidence and in failing to give the Sponsor the opportunity to respond to a point which was not raised in the refusal notice. I set aside the decision to dismiss the appeal dated 16th September 2016 and I remake it as follows.

11. The Sponsor gave evidence, which was corroborated by the stamps in his passport, that he had visited the Appellant in Pakistan on the following dates: the 21st May to 25th May 2015; 6th July to 19th July 2015; 22nd September to 14th October 2015; 29th November 2015 to 23rd August 2016; and 30th August 2016 to 11th March 2017. The Sponsor also made a trip to Dubai with the Appellant from December 2013 to February 2014. This was not evidenced in the current passport but was in a previous passport (not produced) along with two more visits to Pakistan. However, there was evidence in a further bundle produced by the Sponsor of the boarding passes relevant for all of his visits. This evidence was relevant to whether the relationship was genuine and subsisting.

12. Mr Singh, having looked at the Home Office file, stated that the presenting officer at the hearing before the First-tier Tribunal had noted that, although there was little contact before and soon after the marriage, the evidence of a continuing relationship suggested that it was genuine. The presenting officer had also conceded the point raised by the ECM and accepted that the Sponsor had the mental capacity to marry.

13. Accordingly, I find on the evidence before me and the concessions made by the Respondent that the Appellant has provided sufficient evidence to show that she is in a genuine and subsisting relationship with the Sponsor and they intend to live together permanently.

14. In summary, I find that the First-tier Tribunal Judge erred in law and the decision of 16th September 2016 is set aside. I remake the decision as follows. I allow the appeal under the Immigration Rules.

Notice of Decision

The Appellant’s appeal against the refusal of entry clearance is allowed.

No anonymity direction is made.

J Frances
Signed Date: 20th March 2017

Upper Tribunal Judge Frances

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid, I have considered making a fee award and have decided to make no fee award because the evidence submitted on appeal was not before the Entry Clearance Officer.

J Frances
Signed Date: 20th March 2017

Upper Tribunal Judge Frances