Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/12771/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 14 May 2013
On 3 June 2013

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

UMAMA SIDDIKA

Appellant
and

THE ENTRY CLEARANCE OFFICER - DHAKA

Respondent

Representation:

For the Appellant: Mr A Rahman of Jalalabad Law Associates
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a national of Bangladesh who was born on 1 October 1990. On 13 March 2012, she applied for entry clearance as the spouse of a British citizen, Mr Iftekhar Ahmed under para 281 of the Immigration Rules (HC 395 as amended).
2. On 29 May 2012, the respondent refused the appellant’s application on the basis that he was not satisfied: (1) that the parties intend to live together permanently as husband and wife and that their marriage was subsisting (para 281(iii)); (2) that the parties would be adequately maintained without recourse to public funds (para 281(v)); and (3) that the parties would be adequately accommodated without recourse to public funds (para 281(iv)).
3. The appellant appealed to the First-tier Tribunal. Following a hearing, Judge Carroll dismissed the appellant’s appeal. Although the Judge was satisfied that adequate accommodation was available, she was not satisfied that the parties’ marriage was subsisting and that they intended to live permanently together with each other or that they met the maintenance requirements of the Rules.
4. The appellant was granted permission to appeal to the Upper Tribunal by the First-tier Tribunal (Judge Brunnen) on 3 April 2013. Judge Brunnen granted permission on the basis that the Judge had arguably erred in law: (1) in failing to take into account a visit by the appellant’s husband after the date of decision in assessing whether their marriage was subsisting; (2) in doubting the credibility of the appellant’s husband on the basis that his evidence was inconsistent with the telephone records; and (3) in dismissing the appeal under Art 8.
5. In her response to the grounds of appeal under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), the respondent did not oppose the appellant’s application for permission to appeal and invited the Upper Tribunal to remake the decision under para 281.
6. Consequently, on the basis of the grounds of appeal and the respondent’s concession, the decision of the First-tier tribunal is set aside. Before me both parties developed their respective cases on the merits of para 281.
7. At the hearing of the appeal, Mr Wilding, who represented the respondent, accepted that the appellant met the maintenance requirements in para 281(v) of the Rules. The only issue was that of the subsistence of the parties’ marriage and their intention to live together permanently as husband and wife. That requirement is set out in para 281(iii) as follows:
“each of the parties intends to live with the other as his/her spouse…and the marriage….is subsisting…”
8. Mr Rahman, who represented the appellant indicated that he wished the appeal to be determined on the documentary evidence and that he did not intend to call the sponsor to give evidence. As a consequence, I heard submissions first from Mr Rahman and then secondly from Mr Wilding.
9. The burden of proof is upon the appellant to establish on a balance of probabilities that at the date of decision, namely 29 May 2012 that the requirements of para 281, in particular para 281(iii) were met. In determining the appeal, I may only consider the circumstances appertaining at the date of this decision (see s.85A(2) of the Nationality, Immigration and Asylum Act 2002). I may consider evidence in relation to post-decision matters in so far as they relate to the circumstances appertaining at the time of decision (see DR Morocco [2005] UKIAT 00038). Post-decision contact between the sponsor and his spouse is admissible to demonstrate their intentions and the subsistence of the marriage and included within that latter category are post-decision visits by a sponsor to his spouse to show that the marriage is subsisting (see Naz [2012] UKUT 40 (IAC)).
10. Mr Rahman relied upon the sponsor’s witness statement dated 11 February 2013 (at pages 6-8 of the appeal bundle) and evidence of a visit by the sponsor to the appellant between 5 September 2012 and 10 October 2012 together with photographs showing the sponsor and appellant together in the sponsor’s family home.
11. In addition, he relied upon a schedule of calls made using telephone cards made by the sponsor to the appellant on her mobile with a number ending “4050”. Those documents cover the period 9 May 2011 to 29 March 2012. In addition he relied upon records of the sponsor’s mobile phone between 29 September 2012 and 1 January 2013 again showing telephone calls to the appellant’s mobile phone with a number ending “4050”. In response to the view taken by the First-tier Tribunal Judge in relation to the frequency of calls shown in the document, Mr Rahman pointed out (following my raising the point) that many of the calls showed “0.00” minutes and obviously demonstrated that a connection had not been made. There was, therefore, he submitted, no inconsistency with the sponsor’s oral evidence given at the First-tier Tribunal that he telephoned the appellant approximately 3 or 4 times per week.
12. Mr Rahman accepted that there was no direct evidence from the appellant in the form of a written statement. Nevertheless he submitted that I should take into account the fact that the appellant and sponsor had lived together for one month following their marriage on 25 November 2009 and also during a subsequent visit between 7 March 2011 and 7 May 2011 (see section 8.4 of the appellant’s application). Further, I should take into account the post-decision visit between 5 September 2012 and 10 October 2012 following Naz. I should also take into account the continuous contact by telephone demonstrated by the telephone records. Taking all these matters into account, Mr Rahman submitted that I should find that the appellant and sponsor had a subsisting marriage and he relied upon GA (“Subsisting Marriage”) Ghana [2006] UKAIT 0046 and that they intended to live together permanently as husband and wife.
13. Mr Wilding reminded me that the appellant has the burden of proof in this appeal. He submitted that there was little evidence to support a subsisting marriage. He pointed out that there was no evidence from the appellant. He accepted that on the basis of Naz the post decision visits were relevant but he did not accept that the phone records established anything more than communication rather than, as was required under the Rules, that their marriage was subsisting. He submitted that it was quite extraordinary that there had been no evidence from the appellant as she had been legally represented throughout the proceedings. He submitted that on the basis of the evidence the appellant had failed to establish on a balance of probabilities that her marriage was genuine, subsisting and that the parties intended to live together permanently.
14. I did not have the benefit of hearing the sponsor give evidence. The only evidence from the sponsor was that recorded in the First-tier Tribunal’s determination and in his witness statement. His evidence is that he has a genuine and subsisting marriage with the appellant and it is their intention to live together permanently as husband and wife. He says in his witness statement that he and the appellant are “continuously in contact through letters and phone calls” and that the
“regular contact has deepened our love for each other and therefore I have no doubt in my mind regarding my wife’s intention to come to live with me as I believe her to be pure of heart”.
15. There is, of course, evidence of phone contact with a telephone number which the sponsor says is the appellant’s mobile phone. I note that, although the appellant says in his witness statement that he and the appellant are in contact “through letters”, none were submitted or relied upon at the hearing before me.
16. It is surprising that the appellant has not provided a witness statement in support of her application particularly in view of the fact that she has been legally represented. The only evidence from the appellant, so far as I can see, is contained in her application form. In that form she states that they lived together for one month following their marriage on 25 November 2009 and that he again came to stay with her between 7 March 2011 and 7 May 2011. There is also the post-decision visit between 5 September 2012 and 10 October 2012 together with the supporting photographs. Those photographs do show, in my judgement, a happy couple. Nothing in those photographs suggests to me that the appellant is reluctantly being photographed with her husband and that their relationship is other than genuine. I note that in one photograph there is behind the couple a photograph of themselves. The photographs were, I was told, taken in the sponsor’s family home where the appellant now lives as is customary following marriage.
17. There is also evidence that the sponsor has provided financial support for the appellant (see para 3 of the First-tier Tribunal’s determination). The telephone records show regular and frequent contact between the sponsor and the appellant. It was not suggested before me that the telephone number ending “4050” was not that of the appellant. Whilst Mr Wilding maybe correct that the mere fact of contact does not, in itself, establish the nature of the relationship, the regularity and frequency of the calls is, in my judgement supportive of their marriage being a genuine one given the other evidence including the photographs (see Goudey (subsisting marriage – evidence) Sudan [2012] UKUT 00041 (IAC)). Indeed, there is no evidence contradicting the sponsor when he says that their relationship is genuine and that it is his intention to live permanently with the appellant and that he believes that is also her intention. It is true that the parties have lived in different countries since their marriage in November 2009 and, indeed, the appellant did not make an application to join her husband until over two years after their marriage. Nevertheless, the appellant‘s evidence in her application form is that they have lived together immediately after their marriage for one month and, again, for two months in 2011. There is no reason to doubt that they also did so during the post-decision visit during September/October 2012.
18. In my judgement, all the evidence in this appeal points in one direction and is consistent with the parties having a genuine and subsisting marriage and that they intend to live together permanently as husband and wife. It would be wrong to speculate on the absence of a witness statement from the appellant. She has made an application and there is no evidence that she did so other than genuinely with the intention of joining her husband in the UK voluntarily.
19. Taking all these matters into account, I am satisfied on a balance of probabilities that the parties have a subsisting marriage and that they intend to live together permanently as husband and wife in the UK and that, therefore, the requirements of para 281(iii) of the Immigration Rules were met at the date of decision.
20. It is now accepted that the other requirements of para 281 were met and consequently I am satisfied that at the date of decision the appellant met all the requirements of para 281.
Decision
21. The decision of the First-tier Tribunal involved the making of an error of law and its decision is set aside.
22. I remake the decision allowing the appellant’s appeal under para 281 of the Immigration Rules.
23. No reliance was placed upon Article 8 before me.

Signed

A Grubb
Judge of the Upper Tribunal

Date: