Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/06341/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 1 August 2016
On 8 August 2016

Before

UPPER TRIBUNAL JUDGE HEMINGWAY

Between

Mrs Bakiza Alsino
(Anonymity DIRECTION not madE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Sulaiman Alkuttna (sponsor) for the Appellant
For the Respondent: Mrs R Pettersen, (Home Office Presenting Officer)

DECISION AND REASONS

1. This is the appellant's appeal to the Upper Tribunal, brought with the permission of a Judge of the First-Tier Tribunal, against a decision of the First-tier Tribunal (Judge Foudy hereinafter "the Judge") to dismiss her appeal against a decision of an Entry Clearance Officer made on 9 March 2015, to refuse to grant her entry clearance to come to the UK with a view to settlement, as the spouse of a refugee.
2. I will say, at the outset, that there have been significant developments since the decision of the Judge was made which have meant that whatever is decided in this appeal to the Upper Tribunal is really of very much less significance than it would have been. In that context, the appellant was out of the country when she sought entry clearance. However, she has since entered the UK unlawfully but has successfully applied for asylum in her own right. I mean successful in the sense that her application to be recognised as a refugee has been granted. She has, accordingly, existing leave as a refugee and this was accepted to be the position by Mrs Pettersen at the hearing before me. Nevertheless, the appellant through her sponsor who was acting as her representative (her original solicitors no longer being instructed) did not wish to withdraw the appeal and asked me to make a decision upon it. That is what I have done.
3. By way of background, both the appellant and her sponsor are Syrian nationals. They married each other, in what has been referred to as a "religious ceremony", in Syria on 5 November 2012. It has been explained that, at the time, Government offices in Syria were closed due to the hostilities there so that the marriage could not be officially registered with the relevant authorities. Given the increase in the intensity of the fighting in Syria the appellant and sponsor fled to Turkey. From there the sponsor came to the UK and claimed asylum. His claim was successful. The appellant went from Turkey back to Syria and, with the assistance of the sponsor's brother, sought to register the marriage with the Syrian authorities. It is said that a Syrian Court then issued a registration document in relation to the marriage on 29 June 2014. The appellant then returned to Turkey. She sought entry clearance as a spouse of a refugee. That was the way in which matters stood when the Judge heard the appeal.
4. The Entry Clearance Officer who made the decision of 9 March 2015 to refuse entry clearance did so because he was not satisfied as to the validity of the marriage and, it seems, not satisfied that each of the parties intended to live permanently with the other as each other's spouse. So, he thought that the requirements set out at paragraph 352A(i) and (iv) of the Immigration Rules were not met
5. The appellant's appeal, made of course while she was still outside the UK, was considered by the Judge at a hearing of 22 September 2015. Both parties were represented at that hearing and the sponsor gave oral evidence. The Judge's determination dismissing the appeal, which is a model of conciseness, was promulgated on 30 September 2015.
6. The Judge found the sponsor to be an honest witness and found that the couple had a genuine relationship and that they regarded themselves as being married to each other. As to all of that he said this;
"6. The ECO asserted that the appellant could not meet the requirements of paragraph 352A as he had not married before he left his country of habitual residence to seek asylum. The ECO also asserted that the marriage was not subsisting.
7. The second issue is easily determined. There is abundant evidence before me that this is a genuine couple who care very much for one another. I accept that they regard themselves as having been married, at least in the religious sense, since late 2012. Their marriage has so far survived extreme hardships and I am satisfied that it is a genuine and subsisting one."
7. However, the Judge concluded whilst seeming to accept that the marriage had subsequently been registered, that that had only been done after the sponsor had fled to seek asylum so that the requirements of paragraph 352A(i) were not met. Specifically, as to that point, he said;
"8. Regarding the first issue, I find that the appellant and sponsor went through a religious marriage ceremony in Syria in November 2012, before the sponsor left to seek asylum elsewhere. However, by the sponsor's own evidence, a marriage is not recognised as valid under Syrian law until it is registered by the Syrian authorities. That did not occur until the Syrian Court issued a registration document in June 2014, which was well after the sponsor had fled to seek asylum in the UK.
9. It follows from my findings that the appellant cannot satisfy paragraph 352A of the Immigration Rules as she did not lawfully marry the sponsor until after he had fled his home country to seek protection elsewhere."
8. Finally, the Judge considered, in the alternative, whether the appellant might succeed under Article 8 of the European Convention on Human Rights (ECHR) but concluded that she could not. In that context, he said this;
12. Whilst I have every sympathy with the situation the appellant and sponsor find themselves in , the appellant is not currently in a life- threatening situation. She is safe in Turkey, where many thousands of Syrians are currently living. Her husband is able to visit her there, as he has done in the recent past. He is in employment therefore they are not in dire financial circumstances. It would be tempting at the moment to "stretch" Article 8 in Syrian cases to reflect international sympathy for those citizens, however a Judge should not succumb to such influences. My duty is to apply the law and I find that there are in truth no compelling circumstances in this appeal that mean that the appellant should be excused the need to make a proper entry clearance application under the Rules."
9. So, the appeal failed, but that was not the end of the matter because the appellant, then represented by the Cohesion Legal Services Centre (who no longer represent her) applied for permission to appeal to the Upper Tribunal. Essentially, it was contended that the Judge had erred in failing to follow the approach set out in Hassan v Minister for Justice [2013] IESC 8 (Supreme Court Fennelly J Murray 20 February 2013) with respect to the question of the legality of the marriage; in failing to consider the appeal, in the alternative, under Rule 352AA which relates to unmarried partners of refugees and in wrongly deciding that, with respect to Article 8, the decision of the Entry Clearance Officer was lawful and in pursuance of a legitimate aim.
10. Permission to appeal was subsequently granted and the grant was not limited.
11. Permission having been granted the matter was listed before the Upper Tribunal (before me) so that consideration could be given as to whether or not the Judge had erred in law and, if so, what should flow from that. Representation at that hearing was as stated above.
12. A letter written by Cohesion Legal Services Centre of 27 May 2016 had alerted the Upper Tribunal to the fact that the appellant had, by that time, made her way to the UK and had claimed asylum. It was only at the hearing, however, that it was confirmed that her application had succeeded, a copy of a Residence Permit which had been issued to her by the Home Office having been produced by the sponsor. Mrs Pettersen undertook some checks and was able to confirm that Home Office records did now show that that grant of asylum had been made. Notwithstanding that, and as already noted, the appellant asked that I go on to determine this appeal to the Upper Tribunal and I agreed to do so.
13. In support of the appeal the sponsor, speaking with the assistance of a Kurdish Kurmanji-speaking interpreter whom he appeared to understand and who appeared to understand him, said, in effect, that he thought that the appeal should have been allowed because he had produced a document demonstrating that the marriage had been lawfully registered. Mrs Pettersen submitted that the Judge had correctly found that although there had been an attempt at registration, such registration did not operate retrospectively so that the marriage had not been properly registered, and could not be regarded as being a lawful one in the sense that it was recognised by the authorities in Syria, at the time the sponsor had departed that country.
14. I can only allow an appeal to the Upper Tribunal if I am satisfied that the First-tier Tribunal erred in law and that such error was material.
15. I shall deal, in turn, with the three separate grounds of appeal which had been relied upon when the application for permission to appeal to the Upper Tribunal was made.
16. As to ground one, it was suggested that had the Judge followed the approach taken in the case of Hassan, cited above, he would have allowed the appeal. It was said that in Hassan, the Supreme Court had stated that in deciding whether a marriage with legal effect had taken place all the circumstances had to be looked at including any explanation offered for an inability to produce a relevant marriage certificate.
17. I do not accept that Hassan assists the appellant in this case. First of all, the Supreme Court in Hassan were dealing with immigration legislation relevant to Ireland and not the law which this Judge had to have regard to. Secondly, it appears that the Supreme Court was dealing with a case where there had been a clear assertion, at the outset, that a marriage ceremony with legal effect had taken place prior to leave being sought. In this appellant's case, however, it was not clear to me that it was being asserted that, prior to the Entry Clearance Application, the religious ceremony, of itself, which is all that had taken place at that time, had amounted to a marriage ceremony with legal effect in Syria. Indeed, as the Judge noted at paragraph 8 of his determination which is set out above, such had not been contended at the hearing. In looking at the wording of Rule 352A(ii) it does seem to me that what is contemplated by the Rule is a marriage of a lawful nature in the home country prior to the departure from that country of the asylum seeking spouse. This marriage only became lawful according to the findings of the Judge (findings clearly open to him) after registration. It could not be said, in these circumstances, that the Rules were met. It was certainly open to the Judge, notwithstanding the case law cited above, to conclude it was not. I reject this ground.
18. The second ground is that the Judge ought, in the alternative, to have considered matters under Rule 352AA. However, the Judge did not err in law in this regard because paragraph 352AA had never been relied upon at any stage either in the Entry Clearance Application nor in the grounds of appeal to the First-tier Tribunal nor in argument before the Judge. In this context, of course, the appellant was competently represented before the Judge. I reject that ground.
19. As to the third ground, it does not seem to me that it can properly be contended on any basis, that the decision of the Entry Clearance Officer concerning Article 8 was not a lawful one and was not, in general terms, in pursuance of a legitimate aim being that of immigration control. That is the only challenge made to that part of the decision.
20. In the circumstances I would conclude that the Judge did not err in law in making his decision and that decision should, therefore, stand. Of course, none of that affects the fact that the appellant has now been recognised as a refugee and has leave on that account.
Decision
21. The decision of the First-tier Tribunal did not involve the making of an error of law. That decision shall, therefore, stand.

Anonymity
22. I make no anonymity Direction.

Signed
MR Hemingway
Judge of the Upper Tribunal

Date 8 August 2016

To the Respondent
Fee Award
23. I make no fee award.

Signed
MR Hemingway
Judge of the Upper Tribunal

Date 8 August 2016