Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/09178/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 22nd August 2016
On 30th August 2016

Before

upper tribunal Deputy judge ROBERTS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

farzana tabasum
(ANONYMITY DIRECTION Not made)
Respondent

Representation:
For the Appellant: Mrs Pettersen, Senior Home Office Presenting Officer
For the Respondent: Mr Hussain of Counsel

DECISION AND REASONS
1. This is the appeal of the Secretary of State for the Home Department on behalf of the Entry Clearance Officer Islamabad ("the ECO") against the decision of the First-tier Tribunal (Judge Grimshaw) allowing the appeal of Farzana Tabasum against the ECO's refusal to grant her entry clearance as the spouse of Mohammed [R] a British citizen ("the Sponsor")
2. For the sake of clarity, in this decision, I shall refer to the Secretary of State/ECO C as "the Respondent" and to Farzana Tabasum as "the Appellant" which reflects their respective positions before the First-tier Tribunal.
Background
3. The Appellant is a citizen of Pakistan born 1st January 1970. She made application for entry clearance as the spouse of the Sponsor. At the time of her application, there was also an application made by Master [MKR], who is the 14 year old child of the Appellant and Sponsor.
4. The ECO initially refused the Appellant's application on several grounds. He was not satisfied that the Sponsor was working as claimed and came to the conclusion that false documentation had been supplied to him.
5. The main ground that concerned the ECO however revolved around the validity of the claimed marriage contracted between the Appellant and Sponsor. He noted that the Appellant had married the Sponsor on 5th February 2000 in Pakistan and again on 15th March 2014. The Appellant is the Sponsor's third wife. The Sponsor's first wife died on 18th July 1993. The Sponsor married his second wife (a British citizen) on 19th May 1998 but did not divorce her until 20th May 2013. The ECO concluded therefore that it followed that the Sponsor who is now domiciled in the UK, was not free under UK law to marry the first Appellant in 2000. The ECO was also not satisfied that the "remarriage" in March 2014, was valid because it could not be legal under Pakistani law.
6. Following on from that the Entry Clearance Officer doubted that there was contact between the parties as claimed. He therefore refused the application.
First-tier Tribunal
7. The appeal came before the First-tier Tribunal. After hearing evidence mainly from the Sponsor Judge Grimshaw made several findings;
(i) She was satisfied that the financial provisions set out in Appendix FM to the Rules were met. (So far as the appeal before me is concerned there is no challenge to this finding).
(ii) The judge was also satisfied that she had heard credible evidence showing contact between the parties and was satisfied of the genuineness of the relationship.
(iii) She noted that the Presenting Officer accepted that the Sponsor was naturalised as a British citizen in October 2002. It followed that the Appellant and Sponsor's son, Master [MKR] born in November 2002 would qualify for a passport as a British citizen and thus would be free to travel without the need for entry clearance [36].
8. The judge then went on to consider the validity of the marriage. She set out a summary of the Sponsor's matrimonial history. She noted that the Sponsor's first wife was Shameen Akhtar and she died on 18th July 1993. On 19th May 1998 the Sponsor married his second wife Bibi [R]. The marriage was unhappy. Bibi [R]'s brother objected to a divorce but did consent to the Sponsor taking another wife. Accordingly the Sponsor married Farzana Tabasum in an Islamic ceremony in Pakistan on 5th February 2000. The son, was born on 4th November 2002 just shortly after the Sponsor was naturalised as a British citizen on 3rd October 2002.
9. The Sponsor continued to live with Bibi [R] in the United Kingdom but spent long periods of time with the Appellant and their son in Pakistan. Eventually the Sponsor initiated divorce proceedings against Bibi [R] and was granted a decree absolute on 20th May 2013.
10. After his marriage to Bibi [R] was dissolved, the Sponsor returned to Pakistan to remarry the first Appellant. The couple were "remarried" on 15th March 2014 again in an Islamic ceremony.
11. The judge noted that it has always been the ECO's case that it is not permissible under Islamic law for the Sponsor and first Appellant to "remarry" each other. Indeed because of the Sponsor's domicile the earlier Islamic ceremony conducted in 2000 cannot be treated as valid in UK law, such as to permit the Appellant to enter the UK as the spouse of Mohammed [R].
12. In dealing with the matter Judge Grimshaw said the following at [32],
"32. It seems to me that the matter can be resolved in the following way. If the remarriage to the first Appellant in 2014 is valid under Islamic law, then there would be no difficulties in this country recognising the marriage, given that when it took place the sponsor was legally free to marry. Alternatively, if the remarriage to the first Appellant is not allowed under Islamic law it is reasonable to suppose that the sponsor's divorce in United Kingdom means that the first Islamic marriage that took place between the couple in 2000 can now be accepted and is valid. In my view a marriage that is legally valid abroad (namely the 2000 Islamic ceremony in the present case) must be accepted here but, I emphasise, only at the point the sponsor is considered free to marry in the eyes of the law that applies in this country."
Judge Grimshaw then allowed the Appellant's appeal and also allowed the appeal of Master [MKR].
Permission to Appeal
13. The Respondent sought permission to appeal the First-tier Tribunal's decision. For the sake of clarity I set out here that permission was sought only against the decision allowing Farzana Tabasum's appeal. There were no grounds challenging the decision to allow the appeal of Master [MKR]. Mrs Pettersen confirmed that the sole issue to be decided, revolves around the validity of the marriage between the Appellant and Sponsor.
14. There was one ground seeking permission namely that the judge had made a misdirection of law on a material matter. The ground set out that the FtT Judge had erred in law by finding that the marriage was valid and reliance was placed on the case of Abdin (domicile - actual polygamous marriage) [2012] UKUT 00309 (IAC). It was asserted that the Sponsor was domiciled in the UK at the time of the marriage to the Appellant in 2000 and the judge's finding that the marriage became valid at the time when he divorced his wife in 2013, was not open to her on the evidence before her.
15. The grounds asserted that the judge had made no reference to the case of Abdin and therefore it was arguable that the judge had erred in law in finding that the marriage between the Appellant and Sponsor was valid given the history of the polygamous marriage and the domicile of the Sponsor.
UT Hearing/Error of Law
16. I heard submissions from Mrs Pettersen and Mr Hussain. Mrs Petersen's submissions kept to the lines of the grounds seeking permission. She invited me to set aside the FtT's decision and remake it dismissing the Appellant's appeal.
17. Mr Hussain indicated that he had discussed the matter fully with the Sponsor who was present at the hearing. He said that he had gone through the case law with him t and following that, he did ask whether I could look at the appeal from an Article 8 ECHR viewpoint. This is bearing in mind that it was now accepted that the Appellant's son was entitled to a British passport and an application was already in process. This would mean that the Appellant would be alone in Pakistan, once her son travelled here.
18. He did acknowledge however that Judge Grimshaw had not gone on to consider Article 8 because she had explicitly recorded at [34] "No other issues are raised in the refusal notice and I am satisfied that there are none". He queried however whether it could not be the case that the facts before the judge were enough for her to have been prompted into considering Article 8 ECHR. Other than that, he said he was unable, to assist further.
Consideration and Findings
19. I find I am satisfied, that the decision of Judge Grimshaw promulgated on 23rd February 2016, contains an error of law requiring it to be set aside and remade.
20. In giving my reasons for this finding, I can do no better than refer to the grounds seeking permission. I am satisfied that the case of Abdin sets out the correct approach which should have been taken by the FtT.
21. Following the approach set out there, I find that in 2000, the Sponsor who at that time was legally married in the UK to Bibi [R], entered into a void polygamous marriage with the Appellant.
22. Thus the FtT's finding that the void marriage became valid by virtue of the Sponsor's divorce in 2013 is incorrect.
23. Equally, I find the FtT incorrect to find that the Sponsor "marrying" the Appellant again in 2014 makes for a valid marriage. Since it has always been the case that the first Islamic marriage in 2000 was valid in Pakistan, then a "second marriage" could not be deemed valid in Islamic law.
24. I find for the foregoing reasons, that the Appellant and Sponsor's marriage so far as UK law is concerned is void and that that is where the matter must end.
25. So far as any Article 8 ECHR issue is concerned, Mr Hussain properly acknowledged that this had not been raised before the FtT and I can find no reason to say that the judge should have looked at matters from an Article 8 ECHR viewpoint. In any event the Appellant may well have other avenues available to her enabling her to gain entry.
26. There is one further consideration I feel bound to mention. In the papers before me there is a document which appears to be a draft application for a costs order, drafted by the Appellant's representatives. I record that no application for costs was made before me; and in any case considering my decision, I cannot see that any application would have had prospect of success.
27. For the foregoing reasons, I conclude that the appeal of the Secretary of State should be allowed.

Notice of Decision
The appeal of the Secretary of State is allowed.
The decision of the First-tier Tribunal is hereby set aside for legal error.
I remake the decision, dismissing Farzana Tabasum's appeal against the Entry Clearance Officer's decision of 14th May 2015 refusing her entry clearance to the United Kingdom as a spouse.
No anonymity direction is made. None was sought.

Signed C E Roberts Date 26 August 2016

Upper Tribunal Deputy Judge Roberts

TO THE RESPONDENT
FEE AWARD
I set aside the FtT's award of a fee and direct no fee award made.

Signed C E Roberts Date 26 August 2016

Upper Tribunal Deputy Judge Roberts