Tribunal decisions

The decision

IAC-F-NL1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/09061/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 1st March 2017
On 16th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

faTemeh mohit
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

entry clearance officer
Respondent

Representation:
For the Appellant: Mr R Moosavi instructed by Ison Harrison Solicitors
For the Respondent: Mr M Diwnycz, Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellant’s appeal against the decision of Judge Caswell made following a hearing at Bradford on 15th March 2016.
Background
2. The appellant is a citizen of Iran born on 22nd March 1980. She applied to come to the UK as the wife of Mr Roohollah Moosavi who has refugee status in the UK. She was refused on 5th May 2015 and appealed to an Immigration Judge. The sole issue before the Immigration Judge was whether the couple were validly married and whether their relationship was subsisting. It appears that the Presenting Officer at the hearing did not dispute that the appellant and sponsor were in a relationship and Mr Diwyncz confirmed to me that the only issue now was the validity of the marriage.
3. The judge considered whether the couple were validly married under Iranian law. When the sponsor made his claim for asylum he had referred to her as his “Sigh-e Mahramiat” which translates as fiancée or temporary wife. She noted that there were very few photographs of the wedding. She considered the expert report of Dr Kakhi, an Iranian lawyer, who had examined the documents and found them to be genuine and that the marriage had been legally registered and was valid. Having considered the evidence she rejected Dr Kakhi’s conclusions, relying upon the sponsor’s answers at interview which indicated that the marriage was temporary and not permanent and that they intended to have a permanent marriage later, and the lack of photographs. On that basis she dismissed the appeal.
The Grounds of Application
4. The appellant sought permission to appeal on the grounds that the judge had erred in law in failing to have proper regard to the sponsor’s explanation of the asylum interview transcript, which was that there were problems with the Home Office interpreter. The word Sigheh has more than one meaning in the Farsi language and the interpreter translated the wrong meaning.
5. Second, she had failed to give adequate reasons for discounting the expert evidence, appearing to conclude that the sponsor’s oral evidence was so deficient that it undermined Dr Kakhi’s conclusions. However Dr Kakhi’s expertise was not challenged by the Tribunal. It did not depend on the credibility of the witness seeking to rely on it.
6. Permission to appeal was initially refused by Judge Brunnen. However on renewal it was granted by Upper Tribunal Judge Jordan in the following terms:
“1. It is arguable that the First-tier Tribunal Judge failed to distinguish between two distinct elements of the evidence: (a) the formal validity of the marriage and (b) the credibility of the appellant. The first was based on the documents authenticated by the expert after examination of which he concluded ‘I have no doubt as to these documents authenticity’. That was not challenged. The second strand in the evidence of validity was the expert evidence that the religious ceremony and the registration of the marriage at a civil registry resulted in a valid marriage. This was the expert evidence of Dr Kakhi. It was not apparently disputed that it was registered. Nor was Dr Kakhi’s evidence disputed that the combination of religious ceremony and registration created a valid marriage (in much the same way as an Islamic marriage and civil marriage create a valid marriage but the former alone does not). If so, this was a valid marriage and the oral evidence of the appellant could add nothing to validity nor could it detract from it.
2. The second element (b) was the credibility of the applicant and his evidence about temporary marriages. I would have doubts about an interpreter who translated an Iranian expression as a ‘temporary marriage’ in the same way as I would have doubts had he interpreted an expression as ‘a permanent marriage that will last until next week’. Arguably, the Judge should have asked the interpreter what he meant by ‘temporary’ – was it to last until next week, next month or what had to be done before it became permanent. If what he meant was that it was, say, a ‘provisional’ marriage, that would make sense in a system of law as found in many countries (including in Europe) where the religious ceremony is not recognised until it is registered by the civil authorities. But in this case the Judge appears to accept that it was registered. However, all this was immaterial if Dr Kakhi’s evidence was not contested.
3. The fact that the appellant did not produce photographs was arguably a thin reason for rejecting the appellant was married at all in the face of the evidence of Dr Kakhi but the Judge rejected his evidence ‘because he did not have the whole evidential picture before him which is before me’ but he did have the documents which were authentic and the uncontested knowledge that this marriage was registered.”
7. On 4th January 2017 the respondent served a reply arguing that the judge was entitled to decide that the evidence of the expert was not determinative and to make findings that the relationship was temporary and the lack of any photographs despite the attendance of a significant number of guests was inconsistent with a permanent wedding. There was a significant inconsistency in the sponsor’s evidence as to a wedding celebration. Taken in the round it was open to the judge to conclude that the nature of the ceremony which had taken place was a temporary marriage and therefore did not meet the requirements of the relevant Rule.
The Hearing
8. At the hearing Mr Diwnycz made no submissions save to rely on the Rule 24 response.
9. Mr Moosari relied on his grounds and the grant of permission to appeal and asked that the appeal be allowed.
10. Dr Kakhi’s report is absolutely clear. He is experienced in providing expert opinions on Iranian law and procedure having practised law as a member of the Iranian Bar in the Iranian courts for a number of years and has provided reports to the Tribunal since 2003. His expertise is unchallenged.
11. He examined the five Iranian official documents which were before him, namely the original marriage certificate and its official translation and the original birth certificates of Mr and Mrs Mohit and two further documents issued by the Shiraz Marriage Registry Office Branch 177 confirming that the marriage was registered in that registry office on 22nd September 2012. Dr Kakhi concluded that he had no doubt as to the documents’ authenticity. They were consistent with the relevant procedure within Iran for permanent marriage.
12. Dr Kakhi explained the legal procedure for marriage within Iran which is a two-stage process, the first involving a clergyman and the second when the marriage is formally registered in the registry office. He also explains the term “Sigh-e Mahramiat” which is necessary for all kinds of marriage as it establishes the religious validity of the marriage and legitimises the couple’s relationship according to Islamic Sharia laws. He confirmed that it was compulsory for all permanent marriages to be registered within a registry office, which had been done in this case, and he considered that Mr Moosavi’s reference to “Sigheh Mahramiat” may have been concerning the religious ceremony where the clergyman pronounced the couple as husband and wife rather than the registration of the marriage which was a legal obligation the couple undertake as soon as the religious ceremony has been completed. There was therefore no discrepancy between Mr Moosavi’s account and the permanent status of his marriage.
13. It is clear that confusion has arisen between the two parts of the Iranian marriage process and that there was a question over the interpretation of the sponsor’s replies at interview when he was said to have referred to his wife as a temporary wife. Be that as it may, the evidence of the sponsor cannot establish whether the marriage was valid or not. According to the unchallenged report from Dr Kakhi the marriage documents are authentic. He concludes:
“The registration of the marriage and the recording of the details of the husband and wife into their birth certificates is indicative of the couple having complied with their legal obligations and register their permanent marriage as required by Article 645.”
14. He said:
“I am of the opinion that Mrs Mohit is indeed married to Mr Moosavi on a permanent basis as set out within the birth certificates and the marriage deed. In view of the vast array of evidence I have no doubt as to these documents’ authenticity and consistency with the relevant procedure within Iran for permanent marriage.”
15. As Mr Jordan set out in his grant of permission, unless the judge could have rationally discounted the evidence of Dr Kakhi, it was determinative. Accordingly in these circumstances it was not open to the Immigration Judge to reject the evidence of Dr Kakhi.

Notice of Decision
16. The original judge erred in law. Her decision is set aside. It is re-made as follows. The appellant’s appeal is allowed.

No anonymity direction is made.

Signed Date 15 March 2017

Deputy Upper Tribunal Judge Taylor