Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/09415/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 April 2017
On 24 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

ENTRY CLEARANCE OFFICER
Appellant
and

MRS ZAINAB REZAIE
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr L Tarlow, Home Office Presenting Officer
For the Respondent: Mr P Richardson of Counsel instructed by Morgan Mark Solicitors

DECISION AND REASONS
1. The Respondent, to whom I shall refer as the Claimant, is a national of Afghanistan, born on 3 December 1991. She applied for entry clearance as the spouse of Hamed Ibrahim, a British national born on 1 January 1991 under Appendix FM. The application was made on 12 March 2015 and was therefore an appeal under the Immigration Rules, not restricted solely to human rights grounds. In a decision dated 23 May 2015, the Entry Clearance Officer refused the application on the basis that s/he was not satisfied that the English language test had been completed by the Claimant but was satisfied that it was taken completed and passed by a third party, thus refusing the application with reference to paragraph S-EC 2.2(a) of Appendix FM of the Immigration Rules. The Entry Clearance Officer further concluded that the relationship between the Claimant and Sponsor was not genuine and subsisting, noting that the Sponsor had not visited the Claimant in Kabul and the Entry Clearance Officer was not prepared to accept evidence of phone cards to show that there had been contact between the parties and that there was no evidence in support of the assertion that they had kept in touch by WhatsApp and Skype. The Entry Clearance Officer also relied on a delay in making the application for settlement, which took place 21 months after the marriage.
2. The appeal against this decision came before Judge of the First-tier Tribunal Burnett for hearing on 8 July 2016 in Newport. In a decision promulgated on 29 July 2016, the judge allowed the appeal under the Immigration Rules. He made inter alia the following findings. In relation to the document verification report provided by the Respondent he held at [37]-[40]:
“37. I should state that there is no evidence to support an assertion that a third party took the test for the Appellant”.
38. The DVR raises a prima facie case against the appellant. The appellant has provided an explanation via her husband that she has taken the test in Tehran. The test centre provided a copy of her statement of results once again. On the evidence presented, it is not clear to me that there has not been an error on the certificate and it is the numbers which don’t match. It has also not been ruled out by the production of evidence that the respondent did not make a mistake on the verification form which was sent to the verifier. The respondent has simply failed to provide any further information. There was no challenge to the statement of results or a suggestion that those results were not for the appellant. The DVR simply refers to the English language Testing certificate. I cannot rule out that there may have been a mistake on the test certificate or in the form sent by the respondent.
39. In the circumstances, I find that the respondent has not discharged the burden of proof to show that there has been a fraud, that the test certificate is false i.e. that there has been deception practised by the appellant or a third party.
40. I hence find in the appellant’s favour under section S-EC2.2 of the rules.”
3. The judge then went on to consider the second of the points taken against the application i.e. whether the marriage is genuine and subsisting and at [41] held:
“41. The appellant’s sponsor stated that they do not use email as they use other forms of communication such as WhatsApp. I accept his explanation in this regard. I accept his evidence that he contacts his wife regularly. The ECO noted Viber call screen shots dated 31st January 2015 but stated that these did not show contact for the 21 months after marriage. The date of decision was May 2015.
42. The appellant and sponsor are of a similar age. I have found no adverse matters in either of their immigration history. No other adverse matter, other than the one I have determined above, was brought to my attention. The sponsor provided copies of his passport which showed a number of stamps for visits to Iran and Kabul International Airport. The appellant produced calling cards. Taken altogether I accept that the appellant’s relationship is genuine and subsisting and that the appellant intends to live permanently with her husband in the UK.”
4. The Respondent sought permission to appeal against this decision. The grounds in support of the application asserted that the judge had failed to give adequate reasoning for concluding that the Appellant’s relationship was genuine and subsisting and that she intended to live permanently with her husband in the United Kingdom. Permission to appeal was granted by Judge of the First-tier Tribunal Parker on 22 February 2017.
Hearing
5. At the hearing before me, I heard submissions from Mr Tarlow on behalf of the Entry Clearance Officer. He submitted that whilst there were some screen prints from Viber submitted to the Entry Clearance Officer, there was little documentation that predated the Entry Clearance Officer’s decision and the judge had failed to provide adequate reasons as to why he did not accept the Entry Clearance Officer’s position that the Viber printouts do not evidence communication throughout the marriage. Mr Tarlow submitted that the telephone calling cards and passport stamps for visits to Iran and Kabul are not sufficient to show that the marriage was genuine and subsisting and there was a lack of reasoning at [41] and [42] to show that the determination is sound and adequately reasoned.
6. On behalf of the Claimant, Mr Richardson submitted that context is everything. It was necessary to view the decision in light of the decision of the Upper Tribunal in Goudey (subsisting marriage – evidence) Sudan [2012] UKUT 00041 (IAC) where the Tribunal held as follows:
“(i) GA (‘Subsisting’ marriage) Ghana [2006] UKAIT 00046 means that the matrimonial relationship must continue at the relevant time rather than just the formality of a marriage, but it does not require the production of particular evidence of mutual devotion before entry clearance can be granted.
(ii) Evidence of telephone cards is capable of being corroborative of the contention of the parties that they communicate by telephone, even if such data cannot confirm the particular number the sponsor was calling in the country in question. It is not a requirement that the parties also write or text each other.
(iii) Where there are no countervailing factors generating suspicion as to the intentions of the parties, such evidence may be sufficient to discharge the burden of proof on the claimant.”
7. Mr Richardson submitted that the focus of the appeal was not such that there was much discussion of the marriage and its subsistence and that was clear from the decision. He further submitted that the marriage had taken place in 2013 and in those circumstances, given the passage of time, it was obvious that the relationship was subsisting. Mr Richardson drew my attention to [3] and [4] of the judge’s decision which deal with each point raised by the Entry Clearance Officer in the refusal decision which essentially come down to two points: one is the lack of contact between the parties between their wedding in 2013 and the visit the Claimant made to his wife in Tehran in 2015. He submitted that although the conclusions reached by the Entry Clearance Officer were that the marriage was not subsisting, this was based solely on the absence of evidence of contact. It therefore followed that, if the judge was satisfied by the evidence as to contact between the parties, the challenge falls away. At paragraph [15] the judge was clearly aware that he could not take account of post decision evidence. At [20], [22] and [23] of the decision, the judge records the evidence of the visit to Iran and contact by WhatsApp, phone calls and Skype. He also noted the Claimant’s evidence at [23]:
“that the appellant saw his wife on 9 January 2015. He was studying and working at Tesco. He was busy night and day. He stated his holiday entitlement was too short in order to travel. He contacted his wife by WhatsApp, Skype and phone calls. He had more than 50 calling cards. He had given copies of his WhatsApp between 2013 and 2015. He still had copies of these on email as he had backed them up. He stated if the appeal was not successful he would need to save up to visit his wife again.”
8. Mr Richardson also drew my attention to the bundle of evidence before the First-tier Tribunal and pages 23 to 55 of that bundle which set out WhatsApp records for the five months prior to the date of decision and the fact that, as is clear from his evidence, the Appellant had further records on his phone. Mr Richardson submitted that it is clear from paragraphs [41] and [42] of the decision that the judge accepted the Claimant’s evidence as to the forms of communication he and his wife used, this did not take the form of email and that the contact between them was regular. The judge heard the oral evidence and was entitled to accept that evidence. The judge also noted that there were stamps for visits and that these had taken place in 2014, 2015 and 2016.
9. Mr Richardson concluded by submitting that the reason the Entry Clearance Officer says that there is no subsisting relationship was due to the lack of face to face contact and the absence of evidence of contact via modern means of communication. However, the judge found that there had been both forms of contact and he was properly entitled to reach those findings upon the evidence before him.
Decision
10. I find no error of law in the decision and reasons of Judge of the First-tier Tribunal Burnett. Whilst it is the case that the judge’s reasoning at [41] and [42] in relation to the question of whether or not the marriage is genuine and subsisting is short, it is in my considered view, adequate in light of the evidence that was before the judge and bearing in mind the decision of the First-tier Tribunal in the case of Goudey (subsisting marriage – evidence) Sudan [2012] UKUT 00041 (IAC). It is clear from the Entry Clearance Officer’s decision that the primary reason for refusing the application for entry clearance was in relation to the English language test certificate and whilst there were points raised by the Entry Clearance Officer as to the genuineness of the marriage, I accept Mr Richardson’s submissions on this point that essentially those reasons could be considered under two headings, (1) the lack of evidence of contact by modern means of communication and (2) the lack of evidence of face to face contact by way of visits. Whilst it is the case that the evidence submitted to the Entry Clearance Officer was somewhat scanty, the evidence before the judge, which predated the date of the Entry Clearance Officer’s decision, was clear evidence of contact both in the form of visits and in the form of contact by way of WhatsApp, phone calls and Skype. For these reasons I consider there is no material error in the judge’s decision which I uphold the effect of which is that the decision to allow the appeal under the Immigration Rules stands.
11. I find no error of law in the decision of First tier Tribunal Burnett, with the effect that his decision to allow the appeal by the Claimant is upheld.
12. No anonymity direction is made.

Signed Date 21st April 2017

Deputy Upper Tribunal Judge Chapman

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make a fee award of any fee which has been paid or may be payable.

Signed Rebecca Chapman Date 21st April 2017

Deputy Upper Tribunal Judge Chapman