Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/05450/2013

THE IMMIGRATION ACTS

Heard at Laganside Courts Centre, Belfast
Determination Promulgated
on 14 April 2014
on 23 April 2014

Before

The President, The Hon. Mr Justice McCloskey

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

ABDI HASSAN ALI
Respondent

Representation:

For the Appellant: Mrs M O'Brien, Entry Clearance Officer (Nairobi, Kenya)
For the Respondent: Mr McTaggart (of Counsel) instructed by Francis Hanna and Company, Solicitors

DETERMINATION AND REASONS

1. This appeal has its origins in a decision made by the Entry Clearance Officer of Nairobi, the Appellant herein, dated 10th January 2013, whereby the Respondent's application for permission to enter the United Kingdom in his capacity of the spouse of a person who has leave to remain until 13th July 2017 ( the sponsor) was refused under the family reunion provisions of paragraph 352A of the Immigration Rules. Fundamentally, the refusal was based on a rejection of the Respondent's asserted relationship with the sponsor. One element of the refusal entailed the rejection of the copy marriage certificate submitted by the Respondent, based on a Home Office Country of Origin Information Report relating to Somalia (November 2007). This refusal reason is a familiar one. In a single sentence, the application was also refused under Article 8 ECHR.

2. The Respondent appealed. By its determination promulgated on 14th October 2013, the First-Tier Tribunal (the "FtT") allowed his appeal under both the Immigration Rules and Article 8 ECHR. The central basis of the ensuing grant of permission to appeal to this Tribunal was that the Judge's conclusions were inadequately reasoned. This became the sole focus of the case made by the Appellant at the hearing.

3. On behalf of the Appellant, Mrs O'Brien, contending that the determination of the FtT was inadequately reasoned, characterised this a "fundamental flaw". She highlighted in particular the following aspects of the Judge's decision:

(a) In one passage, the Judge made a finding that the Respondent and the sponsor are married, whilst simultaneously describing the explanation of the absence of the original marriage certificate as "at best weak".

(b) In the immediately ensuing paragraph, the Judge, while acknowledging the Appellant's contention that the Respondent's case was undermined by various "inconsistencies", did not grapple with these or make any specific findings, confining himself to the observation that if the Appellant had chosen to interview the Respondent this might have yielded satisfactory answers and explanations.

(c) Next, the Judge explicitly recognised that the content of the Facebook and E-mail evidence raised certain questions, commenting that this "comes close to [overturning the Appellant's case], but not close enough", without elaboration or rationalisation.

(d) In the following paragraph, the Judge, having made a questionable reference to Article 1F of the Refugee Convention (which was not in play), stated "I have no reason to doubt that the parties intend to live permanently with each other and that the marriage is subsisting", without any particulars or reasons.

(e) Finally, the Judge acknowledged the expert evidence in the form of the report prepared by Dr Bekalo, describing his opinion as "helpful to a minor degree".

4. On behalf of the Respondent, Mr McTaggart highlighted that at the beginning of the passages under scrutiny, the Judge stated:

"The burden of proof is on the Appellant and the standard of proof required is a balance of probabilities ?.

I have given full and careful consideration to all of the documents attached to this appeal ?.."

The Judge also adverted to the oral evidence given at the hearing by the sponsor. Next, Mr McTaggart drew attention to the various marriage and family unit claims made by the sponsor during her asylum interview in June 2012. He also highlighted the consistent terms in which the family reunion settlement applications had been formulated by the Respondent and the asserted children of the family. Finally, he emphasised the supporting opinion of Dr Bekalo.

5. I accede to the Appellant's contention that the determination of the FtT suffers from insufficient findings, a failure to grapple with relevant evidence and insufficient reasons. Much of the determination is conclusionary in nature. It lacks the necessary depth of analysis and ensuing reasoned findings and conclusions. It does not satisfy the standards and principles highlighted in the recent decision of this Tribunal in MK (duty to give reasons) Pakistan [2013] UKUT 641 (IAC).

6. The question which now arises is whether the errors of law identified above are material. I have considered this question in the context of the totality of the evidence available to the Judge, in particular those aspects highlighted in the Respondent's submissions. I have also taken into account that the wording of the determination is, in some of the passages under scrutiny, somewhat infelicitous and should be considered accordingly. Furthermore, I have had regard to the consideration that, although not explicitly stated in the determination, it seems likely that the Judge was impressed by the evidence of the sponsor relating to the key issues of Respondent/sponsor relationship and the family unit. These core issues also had a bearing on the question of Article 8 ECHR proportionality.

7. Approached in this way, I have come to the conclusion that the errors of law which I have identified are not material. I consider that there was sufficient evidence before the Judge to make the findings and articulate the reasons which a properly composed decision would have contained but are missing. Thus I am satisfied that the outcome would have been no different had the errors been avoided.

DECISION

8. Accordingly, I dismiss the appeal and affirm the decision of the FtT.

Signed:

THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 14 April 2014