Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/08435/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 September 2016
On 11 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHANA

Between

MRS DIL KUMARI PUN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Howells, Counsel, instructed by N C Brothers & Co
For the Respondent: Miss A Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Nepal, born on 30 July 1989. She applied for entry clearance on 13 April 2015 to live with her spouse present and settled in the United Kingdom under Appendix FM of the Immigration Rules. This application was refused by the respondent on 22 April 2015 because the respondent did not accept that the appellant and the sponsor are in a genuine and subsisting relationship. The appellant appealed against the decision and First-tier Tribunal Judge Brunnen on 16 August 2016 gave permission for the appellant to appeal on the grounds that no Tribunal could have made the finding that the appellant and her partner are not in a subsisting relationship.
2. At the hearing, photographs were provided of the appellant's wife, in an advanced state of pregnancy. One of the reasons given by the judge when dismissing the appellant's appeal was that no photographs had been provided of the appellant's wife's pregnancy. I am entitled to consider these photographs because they could not have been made available at the time of the hearing because the appellant's wife was in the early stages of pregnancy. The photographs shed light on the appellant's assertion that his wife was pregnant.
3. At paragraph 32 the judge stated that he finds that the sponsor's visit to Nepal in June 2015 was undertaken with the intention of falsely showing that he had visited the appellant and to explain his wife's subsequent pregnancy which had been invented in pursuance of the appeal. The judge did not give adequate reasons for his finding that the appellant went to Nepal in order to falsely claim that he was in a relationship with his wife, is perverse and not a sustainable conclusion on the evidence before the judge.
4. At the hearing the Home Office Presenting Officer made no submissions and said that he left the matter to me. I find that the judge fell into material error of law when he failed to give good reasons for finding that the appellant and the sponsor are not in a subsisting relationship.
5. Although this was not raised in the grounds of appeal, I consider it to be a Robinson obvious point. The judge did not take into account that the burden of proof would be on the respondent if allegations of fraud are made. There was no credible evidence before the judge for him to find that the appellant's claim that he is in a subsisting relationship with his wife and that she was pregnant was fraudulent.
6. I therefore set aside the decision of Judge N Moxon in its entirety and I substitute my own decision and I find that the appellant and the sponsor are in a genuine and subsisting relationship and the appellant's wife is pregnant with his child. I find that the appellant visited Nepal to visit his wife for that reason. There is no evidence perform me upon which I can conclude that the appellant and his wife are not in a subsisting relationship. I find that the appellant satisfies the requirements of the immigration rules to be granted entry clearance. Other than the genuineness of the relationship, no other issue was taken by the respondent.
7. I allow the appeal under Appendix FM of the Immigration Rules.
Decision
Appeal allowed under the Immigration Rules
No anonymity direction is made

Signed Date 8 October 2016

Deputy Upper Tribunal Judge Chana

TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal I make a whole fee award of any fee which has been paid or may be payable for the following reason. There were insufficient reasons for dismissing the appellant's appeal by the respondent.

Signed Date 8 October 2016

Deputy Upper Tribunal Judge Chana