Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA106372014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9th June 2016
On 20th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

Muna sheikh noor
(ANONYMITY DIRECTION not made)
Appellant
and

entry clearance officer - nairobi
Respondent

Representation:

For the Appellant: Ms N Katambala of Fadiga & Co Solicitors
For the Respondent: Mr S Kandola, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction and Background
1. The Appellant appeals against the decision of Judge Colvin of the First-tier Tribunal (the FTT) promulgated on 14th October 2015.
2. The Appellant is a female citizen of Somalia who applied for entry clearance to the United Kingdom as the spouse of [HM] (the Sponsor) who has been recognised by the United Kingdom as a refugee.
3. The application was refused on 13th August 2014 with reference to paragraph 352A(i) and (iv) of the Immigration Rules. The Respondent accepted that the Sponsor had been granted refugee status in the United Kingdom, and that when interviewed he had named Muna Sheikh Noor as his wife. The application was refused because the Appellant had not provided evidence to prove that she is Muna Sheikh Noor, and evidence had not been provided to prove that she lived with the Appellant before he left Somalia, and there was no evidence of contact between the Appellant and Sponsor since the Sponsor had arrived in the United Kingdom.
4. The Respondent was therefore not satisfied that the Appellant is married to a person granted refugee status in the United Kingdom, and was not satisfied that the Appellant intended to live permanently with the Sponsor.
5. The Appellant appealed pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) and the appeal was heard by the FTT on 11th September 2015.
6. Having heard evidence from the Sponsor the FTT accepted that the Sponsor had married a woman called Muna Sheikh Noor in Somalia on 10th April 1989 as a marriage certificate had been submitted which had not been challenged.
7. The FTT did not however find that the Appellant had proved that she is Muna Sheikh Noor for the following reasons.
8. Firstly the Appellant had produced a passport issued to her in Somalia which gave her date of birth as 25th July 1971, but in the application form the Appellant's date of birth was given as 1st January 1965. The FTT accepted that this matter was not noticed or raised at the hearing. There was therefore an unexplained discrepancy.
9. Secondly the Sponsor had given evidence at the hearing that there were no children of the marriage, which had also been confirmed in his asylum interview. However the Appellant's application form referred to a dependant child born in Somalia on 30th November 2001 and it was indicated that the child intended to travel with the Appellant to the United Kingdom. This was therefore a second unexplained discrepancy, which had not been noticed at the hearing.
10. The FTT described the above discrepancies as significant. The third reason given for dismissing the appeal was that there was no evidence of what documents, if any, the Appellant had to show in order to obtain her passport in Somalia in 2014. The FTT described it as unfortunate that the discrepancies were not raised with the Sponsor at the hearing, but nevertheless the burden of proof rests upon the Appellant to prove on a balance of probabilities her true identity. The FTT decided that the burden of proof had not been discharged, hence the dismissal of the appeal.
11. The Appellant applied for permission to appeal to the Upper Tribunal. In summary it was contended that the FTT had erred in law by dismissing the appeal with reference to matters which had not been raised as an issue by the parties. It was contended that the Appellant had rectified the incorrect date of birth on the application form with the embassy. It was contended that the FTT had failed to note that the Sponsor in his asylum interview had stated that the Appellant is 42 years of age, which confirms the correct date of birth to be 1971. It was contended that the FTT should have given the Sponsor the opportunity to explain the discrepancies, and failure to do so amounted to an error of law.
12. Permission to appeal was granted by Judge P J M Hollingworth in the following terms;

1. The judge at paragraph 15 of the decision has referred to significant discrepancies in the evidence. The judge has also stated that it is unfortunate that these discrepancies were not raised with the Sponsor at the time of the hearing.
2. Whilst the judge has pointed out that the burden of proof rests upon the Appellant it is arguable that an opportunity should have been provided to the Sponsor to provide a response to these discrepancies at the hearing.
3. The permission application refers to matters to which the Sponsor would have drawn attention. It is arguable that the judge's conclusions in relation to the question of discrepancies would have differed had the Sponsor been given the opportunity of responding to the discrepancies referred to by the judge. It is therefore arguable that the burden of proof might have been satisfied.
13. Following the grant of permission the Respondent lodged a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 contending in summary that the FTT had not erred in law, and the grounds contained within the application for permission to appeal amounted to no more than a mere disagreement with sustainable findings which had been made.
14. Directions were subsequently issued that there should be an oral hearing before the Upper Tribunal to ascertain whether the FTT had erred in law such that the decision must be set aside.
Oral Submissions
15. Ms Katambala relied upon the grounds contained within the application for permission to appeal.
16. Mr Kandola relied upon the rule 24 response contending that the finding made by the FTT in relation to there being a dependant child was not a determinative factor. There was an unexplained discrepancy regarding the Appellant's date of birth. I enquired whether Mr Kandola's file recorded whether the issues in relation to a dependant child and the Appellant's date of birth had been put to the Sponsor when he was questioned before the FTT. Mr Kandola confirmed that there was no evidence to indicate that these matters had been raised with the Sponsor.
17. Ms Katambala contended that the FTT had failed to consider documentary evidence other than the application form, which confirmed that the Appellant's date of birth is 1971. If the Sponsor had been given the opportunity, he could have confirmed that the child referred to in the application form is not a child of the family.
18. At the conclusion of submissions I indicated that the FTT had erred in law and gave my reasons for so finding, which would be confirmed in writing.
My Conclusions and Reasons
19. In my view the FTT erred in law by failing to give the Sponsor an opportunity to respond to apparent discrepancies which had not been raised at the hearing. This is procedurally unfair.
20. The FTT gave two main reasons for dismissing the appeal. They are contained in paragraph 14 of the FTT decision.
21. Firstly there was the issue of the apparent discrepancy as to the Appellant's date of birth. It is clear that the date of birth in the passport is 1971, and this is also stated in the marriage certificate, although there is no reference to this in the FTT decision. The evidence given by the Sponsor in his asylum interview appears to indicate that the Sponsor was born in 1971.
22. The FTT did not notice until after the hearing that the application form referred to the Appellant as having a date of birth in 1965. The FTT regarded this as a significant issue and accepted that this had only become apparent after the hearing. As this was regarded as significant by the FTT, I find that the sponsor should have been given an opportunity to explain or clarify the apparent discrepancy.
23. The second apparent discrepancy, which the FTT refers to as significant relates to whether or not there is a child of the marriage. In answer to question 61 of the application form, the Appellant confirms that there is a dependant child born on 30th November 2001 and it is intended that this child travel with the Appellant. This conflicted with the oral evidence given by the Sponsor at the hearing, and also the evidence given by the Sponsor in his asylum interview. Again this discrepancy was not put to the Sponsor, as this only became apparent to the FTT after the hearing.
24. I note that in Appendix 4, which accompanies the application form, in answer to question 1.32 details of a child for whom the Appellant has responsibility are given. This however is not a child of the marriage between the Sponsor and Appellant, and therefore there is no discrepancy when this answer is compared to the Sponsor's evidence that there are no children of the marriage. As the FTT regarded this as a significant discrepancy, and confirmed that this was not noticed or raised at the hearing, and recorded at paragraph 14 that it was "unfortunate that these discrepancies were not raised with the Sponsor at the time of the hearing" I find that it is an error of law not to have given the Sponsor an opportunity to comment upon the apparent discrepancy.
25. The result was that the two main reasons for dismissing the appeal were never raised with the Sponsor, or the Appellant's representative at the hearing.
26. For the reasons set out above, the decision of the FTT is set aside with no findings preserved.
27. Both representatives agreed at the hearing, when the FTT decision had been set aside, that it would be appropriate to remit the appeal back to the FTT to be heard again.
28. I have considered paragraph 7 of the Senior President's Practice Statements, and find that it is appropriate to remit the appeal back to the FTT because of the nature and extent of judicial fact-finding that will be necessary in order for this decision to be remade.
29. The appeal will be heard at the Taylor House Hearing Centre and the parties will be advised of the time and date in due course. The appeal is to be heard by an FTT Judge other than Judge Colvin.
Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law such that it is set aside. The appeal is allowed to the extent that it is remitted to the FTT with no findings of fact preserved.

Anonymity

No anonymity direction was made by the FTT. There has been no request to the Upper Tribunal for anonymity and I see no need to make an anonymity order.

Signed Date 13th June 2015

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

No fee award is made. The issue of any fee award will need to be considered by the FTT.

Signed Date 13th June 2016

Deputy Upper Tribunal Judge M A Hall