Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: oa/08943/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 December 2017
On 22 January 2018

Before

UPPER TRIBUNAL JUDGE BLUM

Between

mrs nazia ahmadi
(anonymity direction not made)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Z Khan, Counsel instructed by Universal Solicitors
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against a decision by Judge of the First-tier Tribunal Kelly, promulgated on 8 March 2017, dismissing the appeal against the respondent's decision, dated 11 May 2015, to refuse the entry clearance application of Mrs Nazia Ahmadi, the appellant, who sought to join her spouse, Mr Naqibullah Nayel (the sponsor).
Background
2. The appellant is a national of Afghanistan. Her date of birth is 5 September 1991. She sought entry clearance to join the sponsor under the Family Reunion provisions of the Immigration Rules, specifically paragraph 353A(ii). The sponsor was a person who had been granted refugee status in the United Kingdom on 19 January 2012 and his grant of status was valid until 18 January 2017. The Entry Clearance Officer refused the application for entry clearance on the basis that the marriage postdated the sponsor's grant of refugee status and that the appellant did not therefore meet the requirements of paragraph 352A(ii).
3. The respondent thereafter considered, albeit briefly, whether the refusal of entry clearance breached Article 8 outside of the Immigration Rules. The respondent concluded that there were no compelling features of the appellant's case justifying a grant of leave under Article 8. The respondent noted that there was no original marriage certificate provided with the application. In considering the decision under Article 8 the respondent accepted that the decision may result in limited interference with the right to family life under Article 8. The decision was appealed.
4. On 1 October 2015 an Entry Clearance Manager upheld the refusal, but, for the first time, specifically asserted that there was no evidence to show that the appellant and sponsor were in a genuine relationship. The appeal was pursued on the basis that the appellant satisfied the requirements for entry clearance as a partner under Appendix FM of the Immigration Rules, or, alternatively, that her exclusion would amount to a disproportionate interference with her right to respect to family life under Article 8.
The First-tier Tribunal decision
5. At the outset of the First-tier Tribunal hearing the legal representatives confirmed that the issue in the appeal was whether the appellant had satisfied the requirements of Section ECP of Appendix FM, which sets out the eligibility requirements for entry clearance, and, if not, whether the refusal amounted to a disproportionate interference with Article 8. The sponsor gave evidence and the judge took into account his mental health issues and made specific reference to the Joint Presidential Guidance Note No.2 of 2010. The judge had before him the Nikah Nama and the marriage certificate that was obtained by the appellant following the application.
6. With respect to the marriage certificate, the judge heard evidence that the appellant had visited the Afghan Consulate in Peshawar with the sponsor's brother, who was appearing as his designated representative, and the appellant's uncle. The sponsor's fingerprint was placed on the marriage certificate after it was sent to him and the sponsor claimed that there was no need for the certificate to be returned to the Afghan Embassy in Pakistan. There were no statements from either the sponsor's brother or the appellant's uncle because the sponsor believed that the marriage certificate was sufficient evidence. The sponsor indicated that no new Nikah Nama was sought as the marriage certificate had been obtained. The sponsor indicated that he last visited the appellant in February 2016 and claimed that he and the appellant spoke on the phone nearly every day and he produced photographs of the appellant and the sponsor together, including some wedding photographs.
7. In recording the submissions from the legal representatives, the judge noted that the Presenting Officer, while unable to make any concessions as to whether or not the other requirements of Appendix FM relating to eligibility were met, submitted that the real issue was the relationship, whether it was genuine and subsisting and whether the appellant and the sponsor were genuinely married. The Presenting Officer submitted that the marriage certificate was insufficient evidence to establish the genuineness or legality of the relationship, noted that the sponsor was not present when the marriage certificate was obtained and that his fingerprints were added at a later stage. It was submitted that little weight ought to be attached to the money remittances and the photographs and the other documentary evidence in the appellant's bundle as it did not prove the genuineness of the marriage. I pause to note that there did not appear to have been any particular submissions directed towards the reliability or appearance of the Nikah Nama.
8. The judge recorded the submissions from Mr Khan, who appears before me today as he did before the First-tier Tribunal, to the effect that no issue had been taken by the Entry Clearance Officer with the genuineness of the relationship. It was submitted by Mr Khan that there was ample evidence that there was a genuine relationship and reference was made to the mobile phone evidence, to money transfer receipts and to Facebook messages in support.
9. Having set out the requirements of the Immigration Rules, Appendix FM, in respect of the definition of 'partner' the judge, at paragraph 19, took issue with the Nikah Nama certificate. The judge gave a number of detailed reasons for finding that the document was not authentic. These included the number of grammatical mistakes on the form, the number of misspellings, and several phrases that were said to make no sense. The judge was not satisfied that the document was genuine or that it could be relied on. The judge adopted a similar approach in respect of the marriage certificate, once again considering the certificate in detail and noting the fact that the sponsor added his fingerprints to it, and that it was not then returned to Pakistan for registration or further authentication. The judge was not satisfied that this was a reliable document and concluded that it was not genuine. The judge was not therefore satisfied that the appellant and the sponsor were legally married and that the appellant met the definition of 'partner' detailed in Gen.1.2 of Appendix FM. The judge proceeded to consider whether the appeal ought to be allowed under Article 8 outside the Immigration Rules. The judge properly referred to the case of Razgar [2004] UKHL 27 which established a five point approach to assessment of Article 8 claims.
10. At paragraph 25 the judge noted that the appellant and sponsor met for the first time in April 2014 and that they underwent a traditional ceremony on 28 April 2014. The appellant and the sponsor maintained that they had lived for the next four weeks as husband and wife before the sponsor returned to the UK on 23 May 2014. The judge noted a later visit by the sponsor to Pakistan to see the appellant from 17 February 2016 to 17 March 2016. The judge stated, "If his account is true, the appellant and the sponsor have spent no more than two months living together in the same country as a couple". The judge noted that the appellant and sponsor had otherwise maintained contact through telephone calls and social media messages and concluded that they were not husband and wife. The judge stated at the end of paragraph 25, "even if I were to find that the relationship between them is a genuine and subsisting one, I find that it is insufficient to amount to family life for the purposes of Article 8(2)".
11. The judge then proceeded to consider whether, even if family life did exist, the refusal constituted a disproportionate interference with that family life. The judge noted the respondent's legitimate public interest in maintaining effective immigration control and that the appellant could not have had a legitimate expectation when she entered into a relationship with the sponsor that she would be allowed to join him in this country. At paragraph 27 the judge stated:
"I also note that the sponsor's own immigration status is uncertain given that his residence permit expired on 18 January 2017 and his application for settlement has yet to be decided. Furthermore, the sponsor has failed to establish why he could not enjoy family life with the appellant in Pakistan given that the problems that led to his grant of asylum occurred in Afghanistan. Whilst I recognise that he has some mental health problems, these have not prevented him from travelling to Pakistan in 2014 or 2016. If the sponsor does not wish to settle in Pakistan on a permanent basis, then I find he can continue his relationship with the appellant by using modern forms of communication and by making visits to Pakistan to see the appellant when he is able to as he has done in the past."
The judge therefore dismissed the appeal under Article 8.
The grounds of appeal and the parties submissions
12. The grounds of appeal contend, inter alia, that the judge acted in a procedurally unfair manner by taking issue with the presentation and appearance of the Nikah Nama and the marriage certificate when this had never previously been raised at any stage. Issue was also taken with the failure by the judge to take into account the agreement by both representatives at the outset of the hearing that the appellant met the financial requirements of Appendix FM, that there was adequate accommodation, and that the appellant also met the English language requirements. The grounds further contend that the judge failed to appreciate that the original marriage certificate had been provided by the appellant. Permission was granted by the First-tier Tribunal on all the grounds.
13. By way of submissions at the error of law hearing Mr Khan adopted the grounds and explained that the reference at paragraph 16 the decision, which was to the effect that the respondent ought to have requested the original of the Nikah Nama if not satisfied that a copy was provided, was in fact an alternative submission made by him and that he had submitted that the original was in fact provided.
14. Ms Fijiwala invited me to find that the judge properly considered all the documents before him and that the judge was entitled to conclude that the documents were not genuine. She accepted that the judge did not make specific reference to the Immigration Rules in his proportionality assessment but invited me to find that the judge was entitled to conclude that the relationship could continue in Pakistan or through periodic visits and modern forms of communication.
Discussion
15. I am satisfied that the judge has materially erred in law. The basis for the First-tier Tribunal's rejection of the reliability of the copy of the Nikah Nama (the judge in fact found that it was not authentic and not a genuine document) was premised on concerns that had never been raised either in the decision under appeal or in the Entry Clearance Manager review, or indeed by the Home Office Presenting Officer at the actual hearing. A similar concern, albeit to a lesser extent, relates to the judge's rejection of the reliability of the marriage certificate. It is clear from the determination that the Presenting Officer did raise issues relating to this document, but the judge's very detailed analysis explored concerns never previously ventilated and without giving a sufficient opportunity to the parties to engage with and respond to those new concerns. In HA & TD [2010] CSIH 28 the Scottish Court of Session indicated (at paragraph 8) that, as an expert body, the Tribunal is entitled to reject evidence notwithstanding that the evidence has not been challenged before it. Fairness however may require it to disclose its concerns about the evidence so as to afford the parties an opportunity to address them. Had the judge raised his concerns regarding the documents with the sponsor or the appellant's representatives, an explanation could have been provided or further evidence sought as to the nature and reliability of Nikah Nama and marriage certificates. It is not altogether unusual in this jurisdiction for genuine documents properly issued in another country to fail to meet the exacting standards expected of official documents in the United Kingdom, especially if English is not the native language. I am satisfied that the appellant has effectively been deprived of a fair hearing. While another First-tier Judge may ultimately reach the same conclusion, I am not satisfied that another judge, having given the appellant an opportunity to engage with these concerns, would inevitably find the documents unreliable.
16. I am satisfied that the determination contains other material errors of law. At paragraph 25 the judge fails to determine whether the sponsor does have a relationship with the appellant. There is consequently no material finding as to the nature of their relationship. The judge then indicates that, even if the relationship was genuine and subsisting, it did not amount to family life. With considerable respect, this conclusion borders on the irrational. If the sponsor and the appellant had been communicating every day (and I note the absence of any finding in respect of this assertion, which itself amounts to a failure to take into account relevant considerations) and they lived in a religiously conservative society as husband and wife for two months, and that they believed themselves to be husband and wife and were only separated by reasons of the refusal of entry clearance, it cannot, on any reasonable basis, be said that the relationship does not amount to family life. Even if the evidence of the legality of the marriage is deficient, it is a relationship akin to that between husband and wife.
17. The judge nevertheless found that even if the relationship was genuine and Article 8 was triggered, the decision was proportionate. The judge was clearly obliged to take into account the public interest in maintaining immigration control (see Section 117B(i)) and was entitled to note that there was no legitimate expectation that when the relationship was commenced the appellant would be entitled to enter the United Kingdom. The Judge was also entitled to note that the sponsor's own immigration status was, to some extent, uncertain. The sponsor had however been recognised as a refugee and that status continued pursuant to Section 3C of the Immigration Act 1971. While he had made a further application for leave to remain in the same category, he remained at all times a person with refugee leave.
18. While the judge properly asked himself whether it would be disproportionate to expect the appellant and sponsor to maintain their relationship outside the United Kingdom he failed to take into account relevant considerations. There was no assessment in the proportionality balancing exercise of the apparent agreement between the representatives, made at the outset of the hearing, that all the other requirements of the Immigration Rules, including those relating to the financial and accommodation requirements and the English language requirements, had been met. The documents before the judge included a Department for Works and Pensions letter dated 15 May 2014 indicating that the partner received personal independence payments and this was reflected in the bank account statements, a public benefit identified in E-ECP.3.3 of Appendix FM. Neither has the judge taken into account the fact that neither the appellant nor the sponsor are nationals of Pakistan. There is no indication, certainly no evidence, that the sponsor would be entitled to enter Pakistan given that he is not seeking to join a Pakistan national. For these reasons I am satisfied that the judge's decision is unsafe and that there are material errors of law. The matter will be remitted back to the First-tier Tribunal for a full de novo hearing, all issues open to be considered by a judge other than Judge Kelly.
Notice of Decision
The First-tier Tribunal's decision is vitiated by material errors of law. The case will be remitted back to the First-tier Tribunal to be determined in a fresh hearing, before a judge other than judge of the First-tier Tribunal A. Kelly.
No anonymity direction is made.

18 January 2018
Signed Date

Upper Tribunal Judge Blum