Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/09449/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 10th October 2016
On 28th October 2016

Before

DEPUTY upper tribunal judge ROBERTS

Between

Mr Muhammad Ali
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

Entry Clearance Officer - islamabad
Respondent

Representation:
For the Appellant: Mr Reyaz, of Ashraf & Ashraf
For the Respondent: Mrs Pettersen, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant a citizen of Pakistan (born 9th August 1985) appeals to the Upper Tribunal with permission, against the decision of a First-tier Tribunal (Judge V Jones) dismissing his appeal against the Respondent's refusal to grant him entry clearance as the spouse of Kaukab Jabeen ("the Sponsor"), a British citizen settled in the UK.
2. In refusing the Appellant's application, the Entry Clearance Officer ("the ECO") took into account the Immigration Rules governing the application and was not satisfied on two counts;
(1) that the marriage between the Appellant and Sponsor was a genuine and subsisting one;
(2) that the parties to the marriage intended to live together permanently in the UK.
The Appellant appealed the refusal to the FtT. When the appeal came before that Tribunal oral evidence was given from the Sponsor and her sister Zohra Jabeen. In addition there was also available to the Tribunal, documentary evidence, including evidence from the Sponsor's GP. All of this was noted by the judge who recorded that he had taken account of it [7].
3. The FtT also had before it decisions dealing with previous unsuccessful applications made by the Appellant. The judge therefore took into account findings made in those decisions, after properly directing himself under the Devaseelan principle [21]. The relevant decision and findings for the purposes of this decision are contained in a decision made by Judge Middleton-Roy in 2012.
4. Having considered all those matters, the judge concluded that although he was satisfied that the Appellant and Sponsor's marriage was a genuine and subsisting one, and therefore the first ground of objection raised by the Entry Clearance Officer fell away, nevertheless he could not be satisfied that the Appellant had shown that he intended to live together permanently with the Sponsor in the UK, as set out in the Rules. The judge concluded therefore that the Appellant could not satisfy the requirements of the Rules.
5. He went on to consider Article 8 outwith the Rules, keeping in mind that this is an out of country appeal. He found that Article 8 was not even engaged, but nevertheless he did, no doubt for the sake of completeness, set out that the alternative that even if Article 8 were engaged, there was nothing to show that there existed, any compelling or compassionate reasons for allowing the appeal.
Onward Appeal
6. The Appellant appealed the FtT's decision to the Upper Tribunal. The grounds seeking permission essentially relied upon one point. It was claimed that the FtT erred on this basis; having found in the Appellant's favour that he and the Sponsor were in a genuine and subsisting marriage, it was unreasonable of the judge to find that the parties had no intention to live together permanently, since the two aspects of the "marriage tests" go "hand in hand". The evidence of intervening devotion should satisfy both tests.
7. Permission was granted on the basis that it was arguable that the judge may not have sufficiently explained the reasons for finding in the Appellant's favour on one aspect of the "marriage tests" and not on the other.

Error of Law Hearing
8. Before me Mr Reyaz appeared for the Appellant; Mrs Pettersen for the Respondent. Mr Reyaz's submissions kept to the lines of the grounds seeking permission. He emphasised that the marriage had been found to be a genuine and subsisting one because evidence of intervening devotion which consisted of the Sponsor's pregnancy and unfortunate miscarriage, allowed the judge to revisit the 2012 determination by Judge Middleton-Roy wherein the Appellant's appeal had been dismissed. The judge in making the finding that the marriage was a genuine and subsisting one had taken into account the fact that the Sponsor had visited the Appellant in Pakistan and that she had become pregnant, although sadly had miscarried. He added, it was perverse of the judge to go on and find that the parties did not have the intention to live with one another permanently in the UK.
9. Mrs Pettersen submitted a Rule 24 response. She said that contrary to what Mr Reyaz said, the FtT had directed itself properly. She emphasised that although Mr Reyaz had tried to give the impression that a finding of a genuine and subsisting marriage, should some how automatically lead to a finding of an intention to live together, this was not the correct approach. Each of those matters represented a separate and distinct part of the Rules. The judge's decision at [8] clearly and correctly sets out the separate nature of the two parts of the Rules. They are cumulative parts and each must be met.
10. She submitted further that the judge had made findings which were open to him. He had looked at all the evidence before him and had relied properly on the evidence contained in Judge Middleton-Roy's decision. She said that whilst there was evidence of intervening devotion, and the judge accepted that evidence, equally the judge had found a deficiency in the evidence dealing with the intention of the parties to live together permanently in the UK.
Consideration
11. I find I am satisfied that the FtT's decision discloses no error of law requiring to be set aside and remade. I now give my reasons for this.
12. The Immigration Rules clearly and distinctly set out that there are two parts or requirements which need to be met in the "marriage tests" before the ECO can grant entry clearance. It is correct to say that no challenge arises from the Respondent, on the FtT's findings that the marriage is a genuine and subsisting one. However it is also correct to say that each and every part of the relevant Rule must be met. The burden of proof rests with the Appellant.
13. I find that Mr Reyaz was incorrect to surmise that because an Appellant had shown that he had fulfilled that part of the Rule relating to the genuineness of the marriage, it somehow followed automatically that he had satisfied the rest of the Rule. this is especially so when there is a finding before a previous tribunal that the Appellant did not satisfy that part of the Rule. There should have been placed before the FtT judge in the present appeal some evidence which would have allowed him to displace the finding made by Judge Middleton -Roy.
14. I find that the FtT correctly assessed the evidence before it. The evidence which the FtT relied upon was the evidence which was before Judge Middleton-Roy contained in the decision promulgated on 20th February 2012. To date there has been no further evidence dealing with that point. Judge Middleton-Roy found that there was no intention of the parties to live with one another permanently and came to that finding following evidence which had been given at the hearing before him, by the Sponsor's father. This led Judge Middleton-Roy to the conclusion that the Appellant had not discharged the burden upon him to show both that he had an intention to live with the Sponsor permanently in the UK and that the marriage was a genuine and subsisting one. The fact that the genuineness of the marriage is now settled does not of itself settle the second marriage test.
15. The judge, I find, correctly reviewed the evidence before him. At [24] he said the following;
"24. However I was not satisfied about the Appellant's future intentions. At the hearing in 2012 the Sponsor and her father said that if his application was successful the Appellant would not live with the Sponsor at her house in Birmingham but would move to London or another city. Judge Middleton-Roy found on the basis of this evidence that there was no intention by the parties to live together permanently as required by the Rules. No evidence has been produced to this hearing, either by the Appellant or the Sponsor, to suggest that his intentions have changed. There was no witness statement from the Appellant and the point was not addressed by the Sponsor or her sister in their evidence."
16. Judge Jones followed this up with his findings at [25] and said as follows;
"25. The burden of proof is on the Appellant to show he meets the requirements of the Rules. He has produced no evidence that his position, as recorded in Judge Middleton-Roy's determination, has changed. The evidence of the Sponsor's pregnancy was not enough to satisfy me that the Appellant now intends to live permanently with the Sponsor in the UK. He has therefore failed to demonstrate that he meets the requirement of paragraph E-ECP.2.10 that he and the Sponsor intend to live together permanently in the UK."
I find that nothing can be clearer than what is said there. It is pointed out rightly that there is a conspicuous lack of evidence relating to the intention of the parties to live with one another. It is not a matter that can have taken the Appellant by surprise because he must know why the case against him was refused in 2012. Because the Appellant has simply brought no further evidence addressing this point, it is hard to see how the judge can be criticised for relying on the available evidence before him. a The weight to be attached to each piece of evidence is a matter for the judge subject o to giving adequate reasons for his findings.
The Appellant's appeal, it must be kept in mind is not on the grounds that he meets the Rules but on the only ground available to him, namely that the ECO's decision is a disproportionate interference with his and the Sponsor's Article 8 right to family life in the UK. Part of the evidence before the FtT was that the Sponsor who has health problems could not live in Pakistan because of her health. I note that the judge dealt with that in his decision making a finding at [27] that he could not be satisfied that the Sponsor could not access adequate medical treatment for her condition in Pakistan. So far as this Tribunal is concerned there has been no challenge to that finding and it therefore remains. There are no children to be considered within any proportionality assessment.
17. I find therefore that there is nothing to show that the judge's findings in this decision, can be characterised as perverse or irrational. Indeed I find that the judge has dealt with the evidence before him and made findings which were open to him. It follows therefore that I find no material error disclosed. The decision of the FtT stands and this appeal is dismissed.

Notice of Decision
This appeal is dismissed.
No anonymity direction is made.

Signed C E Roberts Date 27 October 2016

Deputy Upper Tribunal Judge Roberts

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed C E Roberts Date 27 October 2016

Deputy Upper Tribunal Judge Roberts