Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/07850/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 16 November 2016
On 9 December 2016

Before

UPPER TRIBUNAL JUDGE DEANS

Between

SB
(Anonymity order made)
Appellant
and

ENTRY CLEARANCE OFFICER - ISLAMABAD
Respondent

Representation:

For the Appellant: Mr S Winter, Advocate, instructed by RH & Co, Solicitors
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DECISION AND REASONS

1) This is an appeal against a decision by Judge of the First-tier Tribunal Saffer dismissing an appeal against refusal of entry clearance as a spouse. The application was made in January 2015 and the refusal decision was made on 4 April 2015.

2) The appellant was born on 12 December 1985 and is a national of Pakistan. Her application for entry clearance was refused because the respondent did not accept the marriage was genuine and subsisting owing to a lack of evidence of contact or intervening devotion before or following the marriage.

3) In his decision, the judge noted that the sponsor, who is a British citizen, has been diagnosed as schizophrenic. He was accordingly treated by the judge as a vulnerable witness.

4) The judge accepted that the appellant and the sponsor are married and that the sponsor had spent 3 weeks in Pakistan at the time of the wedding, staying for a few days afterwards. There were photographs of the couple together. The judge accepted that there has been some communication between them. They are distantly related outside marriage. The primary reason they came together was through long-standing family friendship and the fact that the appellant lives next door to the sponsor's aunt.

5) The judge had regard to evidence of the sponsor and his sister regarding the frequency of communication between the sponsor and the appellant. The sponsor said in his evidence that he contacted the appellant once a week or once a fortnight and she contacted him with similar frequency. The judge observed that this would mean that the couple spoke to each other either twice a week or once a week. The evidence of the sponsor's sister was that the contact was every other day. The judge regarded this as a significant discrepancy.

6) In relation to the sponsor's condition the judge observed that there was no medical evidence to indicate the severity of this. At the hearing the sponsor answered questions clearly and without apparent difficulty. He is in receipt of Disability Living Allowance and his sister-in-law receives a carer's allowance for him. There was no indication that he has an impaired memory or a propensity to lie. The judge accepted his evidence of the frequency of contact and found that the sponsor's sister was embellishing the level of contact. The judge considered that the sponsor's sister was supporting the application as she believed that the appellant could provide support for the family generally rather than because the marriage was a genuine or subsisting one.

7) The judge also accepted the evidence of the sponsor that during a 10 minute telephone conversation he speaks to family members other than the appellant and he is not the only one in the UK who takes part in the conversation. The judge observed that even if the conversations themselves were entirely between the appellant and the sponsor, they would amount to no more than 20 minutes telephone contact per week. The judge considered that the actual contact was significantly less because the sponsor said it could be twice a fortnight when they spoke. The judge did not accept that each of them spoke only to the other for 10 minutes. The judge described the telephone contact as "minimal".

8) The judge nevertheless noted that telephone records showed regular contact between the UK and Pakistan. This was not however just in respect of the sponsor's phone. This included the sponsor's mother's phone. She also made calls to the family, which was not surprising given the relationship.

9) The judge further accepted that money was sent from the UK to Pakistan but regarded this as nothing more than a family in the UK supporting a family in Pakistan rather than the money being specifically from the sponsor to the appellant.

10) The judge noted that the sponsor had explained why he had spent so little time in Pakistan since the wedding. This was because of his illness. However, there was no medical evidence about the extent of his illness, why he could not take the required medication with him to Pakistan, and why his wife could not care for him there. The judge considered that if the relationship was genuine, irrespective of the sponsor's illness, it was likely that the sponsor would have spent far more time in Pakistan. The sponsor is not in employment and he has no children. He was described by the judge as having no commitments in the UK. So far as photograph evidence was concerned, the judge considered the photographs to have been staged. The judge was not satisfied that this was a genuine or subsisting marriage.

Application for permission to appeal

11) The original grounds of appeal were based primarily on the sponsor's mental health. Although the judge said there was no evidence as to the extent of the sponsor's mental illness there was a doctor's report at page 77 of the appellant's bundle showing the sponsor's diagnosis. It was submitted that the appellant lived in remoter area of Pakistan and the sponsor would not be able to "survive in Pakistan". Nevertheless the judge found that the sponsor would have spent more time in Pakistan if this was a genuine relationship. The judge had failed to understand the material facts and made an illogical and irrational decision.

12) Permission to appeal was granted principally on the basis that although the judge accepted that the sponsor has schizophrenia he dismissed the proffered explanation that the appellant's illness was the reason for a lack of contact between the parties through the sponsor travelling to Pakistan. It was arguable that there was an inconsistency between these findings.

13) At the hearing the appellant sought to rely on amended grounds of appeal lodged on 17 October 2016, after both the grant of permission to appeal and after the rule 24 response. As the basis for accepting the revised grounds Mr Winter referred me to the case of Ferrer [2012] UKUT 304.

14) It was pointed out that the revised grounds for the application for permission to appeal were lodged after a change of solicitor. It could be highly irregular in my view for the application for permission to appeal to be significantly altered after permission to appeal has been granted. The question, however, is ultimately one of fairness. The respondent had had notice of the revised grounds and was not claiming to be disadvantaged by them.

15) In my view the proper approach to the revised grounds was to regard them as a variation of grounds, which may be allowed under the case management powers in rule 5. Even if the new grounds went further than the original grounds the respondent was not objecting to them and did not claim to have been disadvantaged. Accordingly there was no unfairness.

16) In the revised grounds of appeal it was contended that the judge did not follow the case of Goudey (subsisting marriage - evidence) Sudan [2012] UKUT 00041. The judge imposed his own view of how the parties could reasonably be expected to conduct their relationship instead of evaluating the consistent and supporting evidence that was before the Tribunal as to how the relationship was actually conducted. The telephone records did not of themselves prove that the sponsor had been speaking to the appellant in Pakistan as opposed to someone else but they did support the appellant's account in the entry clearance application and her testimony in the appeal. It was clear that a great many telephone calls had been made during the period of the relationship. It was improbable that the communication was with someone else rather than between the sponsor and the appellant. Parties who intended to conduct a relationship by telephone did not also have to demonstrate that they were conducting a relationship by visits. There were no countervailing factors generating suspicion as to the intentions of the parties. There was no evidence of lies, poor immigration history or deception albeit there was some embellishment by the sponsor's sister. The evidence showed that the families were content with the marriage.

17) It was further contended that the judge erred by failing to recognise that the requirement to show a "subsisting marriage" did not impose some significant burden to produce evidence other than showing that there was a genuine intention to live together as man and wife in a married relationship. It was said in GA ("subsisting" marriage) Ghana [2006] Imm AR 543 that for a marriage to be subsisting it only required that there was a real relationship as opposed to a merely formal one of a marriage not having been terminated.

18) It was contended in the revised grounds that the judge erred by falling into speculation. He found that the money being sent from the UK to Pakistan was nothing more than the UK family supporting the family in Pakistan but there was no evidential basis for this finding. The judge considered that if this was a genuine relationship the sponsor would have spent far more time in Pakistan. There was no evidential basis for this finding. The judge found the photographs were staged but there was no evidential basis on which the judge could arrive at this finding.

19) A rule 24 notice dated 13 October 2016 was lodged on behalf of the respondent stating that the judge's findings were properly reasoned and sufficient. The judge was clearly mindful of the sponsor's medical condition.

20) The appellant sought to lodge an additional bundle of evidence, including an up-to-date statement, although there was no application for additional evidence to be lodged. In the up-to-date statement the sponsor states that he visited Pakistan from 12 October until returning to the UK on 15 November 2016. During this period he spent "some quality time" with the appellant.

Submissions

21) Mr Winter began his submission by referring to the case of Goudey, which he submitted the judge had misunderstood. According to the appellant both she and the sponsor were in regular contact. The sponsor visited the appellant in March 2016 for 3 weeks. This was recorded at paragraph 8 of the decision. The judge had phone records before him. There was evidence of money transfers. Nevertheless the judge concluded at paragraph 18 that if the relationship was genuine, the sponsor would have spent more time in Pakistan. Instead of looking at the evidence cumulatively the judge had formed his own view of how the relationship should be conducted.

22) Mr Winter continued that medical evidence had been provided. There was also evidence from the family about the difficulty for the sponsor visiting Pakistan.

23) Mr Winter continued if there was an error of law then there was sufficient evidence to show the relationship was genuine and subsisting. The additional evidence showed that the sponsor had just returned from visiting Pakistan with his sister and mother.

24) Mrs O'Brien began by pointing out that the rule 24 response was based on the grounds for seeking permission to appeal as originally drafted. She submitted that the Judge of the First-tier Tribunal had taken the proper approach and had not departed from Goudey. The judge had made a holistic assessment of the evidence and had not super-imposed his views of what a couple should do. The marriage was accepted as being legal. The judge pointed out that much of the phone contact was communication between members of the family. This was not sufficient to show a genuine relationship. The judge was aware of the sponsor's condition and took into account the lack of visits to the appellant. The judge was entitled to take into account that there was no barrier to the sponsor staying longer in Pakistan. The judge was entitled to take into account that there was no evidence of impairment of memory or confusion on the part of the sponsor. The medical evidence identified only the sponsor's condition. It was not correct to say that the judge had drawn a negative inference from the lack of medical evidence. The judge was fully aware of the sponsor's medical condition but there was no medical evidence of the impact this would have. There was no medical evidence to show why the sponsor would have had to leave Pakistan so quickly after the wedding. The sponsor had no work to return to in the UK. There was no medical evidence to show why he could not have visited Pakistan more frequently since the wedding.

25) Mrs O'Brien continued that the judge was entitled to find that the phone records and the memory transfers were made by the family network. There was a discrepancy in the evidence of the amount of telephone contact. The judge was entitled to find this was not a genuine and subsisting relationship. This was a "caring scenario" rather than a matrimonial one. It was based on wider family support.

26) In reply, Mr Winter pointed out that the sponsor had given various mobile telephone numbers in his statement. He had made various calls to his wife's number. These were shown to have lasted from 3 minutes to 10-20 minutes. The relationship had been conducted over the telephone. The records were consistent with the relationship. The judge had gone awry by imposing his own view of how the parties could reasonably be expected to conduct their relationship.

Discussion

27) I will address first the question of the medical evidence. Although the doctor's letter had been removed from the appeal file before the hearing, presumably for return to the appellant, I was shown a copy at the hearing. This stated a diagnosis but did not give any details of the impact of the sponsor's condition upon his capabilities. Accordingly the judge was justified in finding that there was no medical evidence indicating of what the sponsor might or might not be capable. This applied both to the assessment of the sponsor's own evidence and to the ability of the sponsor to visit the appellant in Pakistan. Although it was contended by the family that the conditions in Pakistan were not appropriate for the sponsor, as the judge pointed out at paragraph 18, it was not explained why the sponsor could not take any required medication with him, and why his wife would not be able to care for him in Pakistan.

28) Turning to the case of Goudey, this is not infrequently relied upon by appellants as meaning that the existence of a genuine marriage can be established from telephone cards. It is correct that according to Goudey evidence of telephone cards is capable of being corroborative of the contention of the parties that they communicate by phone and it is not a requirement that the parties also write to or text each other. It is sometimes overlooked, however, that reliance on telephone cards to prove the existence of a genuine relationship assumes that, as stated at paragraph 11 of Goudey, "everything else is neutral". Possible adverse factors referred to in Goudey were evidence of lies, poor immigration history or deception. In the present appeal it must be said there is little evidence of lying, although the judge found that the sponsor's sister had embellished her evidence of contact.

29) In this appeal, however, there are other factors to which the judge was entitled to have regard in assessing the relationship. As the judge recorded at paragraph 6 of the decision, the sponsor is assisted by his family in making telephone calls or connecting by Skype. At paragraph 11 the judge recorded the evidence of the sponsor's sister that the mobile phone the sponsor uses is also used by his mother. They both use it to call their various relatives in Pakistan.

30) It is further noted that the money transferred to Pakistan is transferred by the sponsor's mother.

31) As Mrs O'Brien submitted, the evidence before the judge showed the existence of a family network whose various members were in contact, but did not necessarily show the existence of a genuine and subsisting relationship between the appellant and the sponsor. In pursuing this point Mrs O'Brien went so far as to suggest that the relationship between the appellant and the sponsor was a "caring scenario" rather than a matrimonial one. For my part I am sure that within the permutations of a matrimonial relationship it is possible to have a relationship based on one spouse caring for another. Mrs O'Brien explained, however, that she was not referring to a matrimonial relationship of care but a relationship where the wider family supported the sponsor and the appellant would contribute to this support. This is largely what the Judge of the First-tier Tribunal decided at paragraph 13, where he found that the sponsor's sister was supporting the relationship because the appellant would provide support for the family generally rather than because there was a genuine and subsisting marriage.

32) In this appeal, as in many others, the evidence before the First-tier Tribunal as to the genuineness of the relationship was capable of different interpretations. The Judge of the First-tier Tribunal assessed the evidence in such a way as to find that the relationship was not genuine and subsisting. The judge did not err in law simply because the evidence might have been construed differently. To constitute an error of law there must be more than disagreement with the judge's findings.

33) I have considered whether the judge misdirected himself as to the case of Goudey and I find that he did not. Goudey is not authority for the proposition that telephone records must be accepted as evidence of a genuine and subsisting relationship. The judge was entitled to take other factors into account.

34) It is said that the judge speculated about the purpose of the money transferred from the UK to Pakistan; about why the sponsor had not spent more time in Pakistan; and by stating that the photographs were staged. It cannot be said, however, that there was no basis for the judge's findings on these matters. The evidence before him was that the money transfers were arranged by the sponsor's mother. There really was little satisfactory explanation of why the sponsor had not spent more time in Pakistan. There was simply an assertion that the sponsor's medical condition prevented him from staying longer in Pakistan. As the judge pointed out, however, there was no evidence to explain why he could not take medication in Pakistan and why he could not rely on his wife to look after him in Pakistan.

35) Among the evidence relied upon to show the genuine nature of the relationship were the photographs of the appellant and the sponsor together, sometimes just as a couple and sometimes with others. By suggesting that these photographs were staged, the judge was doing no more than indicating that in the circumstances of this appeal the photographs were not to be relied upon as evidence of a genuine relationship. This was a point the judge was entitled to make.

36) The position is that the judge reached findings which were open to him upon the evidence. These findings were supported by adequate and valid reasons. The judge properly directed himself as to the relevant case law. The judge did not engage in unjustifiable speculation and did not disregard the medical evidence which was available. The judge was entitled to have regard to omissions in the evidence, including omissions in the medical evidence. The judge was entitled to reach the conclusions which he did. Although Mr Winter argued the case for the appellant most ably, he has not persuaded me that there is an error of law in the judge's decision such that it should be set aside.

Conclusion

37) The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

38) I do not set aside the decision.

Anonymity

39) The First-tier Tribunal made an order for anonymity, which I continue. Unless and until a Tribunal or court orders otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any witness in these proceedings. This order applies to both the appellant and to the respondent. Failure to comply with this order could lead to Contempt of Court proceedings.

Signed Date

Upper Tribunal Judge Deans