Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/09634/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23rd June 2016
Signed 24th June, 2016
On 11th August, 2016

Before

Upper Tribunal Judge Chalkley

Between

aya [g]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Wells Counsel instructed by Cham Solicitors
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a Syrian national and she claims to be married to [HH] ("the sponsor") who is present and settled in this country as a recognised refugee. He was given leave to remain until 2018.

2. The appellant asserted that she had entered into a proxy marriage in Syria with the sponsor on 17th December, 2014, with the sponsor being represented by his father. The sponsor's father, [KH], is an attorney and it is perhaps not surprising that, before the sponsor left his homeland and came to the United Kingdom to claim asylum, he granted his father a Power of Attorney. This was dated 11th August, 2011.

3. The appellant applied for entry clearance as the partner of [HH] under the provisions of Appendix FM of Statement of Changes in Immigration Rules, HC 395, as amended. The application was refused on 15th May, 2015, and the appellant appealed to the First-tier Tribunal against that decision. Her appeal was heard by First-tier Tribunal Judge Scott, sitting in Birmingham on 7th March, 2016.

4. In English law it does seem rather strange that the law of a foreign country would permit individuals to marry using a Power of Attorney. It is not the sort of use to which a Power of Attorney could be put to in the United Kingdom but, when one looks at the document in question, it is quite clear that it has been drafted in very wide terms. It certainly would not prohibit marriage by the donee, on behalf of the donor, and so it is necessary to consider what the law in Syria says about marriage by proxy.

5. In this appeal the judge had before him evidence in the form of a translated request from the sponsor's father, as an attorney, requiring a statement confirming that the sponsor can conclude a marriage contract with his wife either personally, or using a legal attorney at law, and that the Power of Attorney is valid according to the law of the Syrian Arab Republic. The endorsement made by the "Senior Matrimonial Judge in Aleppo", whose name does not appear to have been translated, confirms that apparently marriage is possible using an attorney at law and that the Power of Attorney is valid.

6. The judge, in making his findings, suggested at paragraph 18 of his determination that he did not accept that the Power of Attorney entered into by the sponsor contained provisions making it clear that the donee of the power can act as a proxy in a marriage being conducted in Syria. He is quite right in that the Power of Attorney does not specifically contain that power, but, as I have indicated, it has been drafted in very wide terms and, according to the evidence before the judge, such marriages are permitted under the law of the Syrian Arab Republic. The First Tier Judge dismissed the appellant's appeal.

7. The appellant sought and was granted leave to appeal the judge's decision.

8. I briefly heard submissions. The power of attorney was extensive in the powers it donated to the sponsor's father to act on behalf of the sponsor. The translated request from the sponsor's father, together with the endorsement by someone described as the Senior Matrimonial Judge in Aleppo confirming that the marriage is legal under the law of the Syrian Arab Republic was sufficient to satisfy the judge on the balance of probabilities. The only issue was the question of the registration of the marriage certificate.

6. There were also other challenges to the determination, but in the light of my finding I do not believe it is necessary for me to go on to deal with them. They do in fact duplicate each other in any event. It is clear that the First Tier Tribunal Judge did err in law in his determination by failing to accept the translated request and endorsement as evidence that it is lawful to marry in the Syrian Arab Republic by one of the parties acting as the donee of a power of attorney. I set aside the determination.

7. The bundle placed before me today from the appellant's solicitors includes evidence which was not placed before the First-tier Tribunal Judge. Unfortunately, it comprised a copy of a letter from a lawyer in Damascus, rather than the original with further evidence which, it is said, is capable of corroborating other evidence. I do not have the original letter and was told that it takes a long time for documents to be obtained from Aleppo because of the current difficulties in Syria. It was clear to me that the appellant's representatives were not in a position to proceed with the second stage of the hearing today and in all the circumstances I remit this appeal for hearing afresh by a judge of the First-tier Tribunal other than Judge Scott. This will enable the appellant's lawyers to obtain the evidence that they will require. The burden of proof is of course the balance of probabilities and how they discharge that burden is a matter for them.

Notice of Decision

The appeal is remitted to the First Tier Tribunal for a fresh hearing by a judge of the First-tier Tribunal other than Judge Scott.

Richard Chalkley
Upper Tribunal Judge Chalkley