Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/13484/2014

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 28th July 2016
On 15th August 2016

Before

UPPER TRIBUNAL JUDGE D E TAYLOR

Between

Mr nadir galaleldin mahmoud
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

ENTRY CLEARANCE OFFICER - RIYADH
Respondent

Representation:
For the Appellant: Mr Hart of Terence Ray Solicitors
For the Respondent: Mr Diwncyz, Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellant's appeal against the decision of Judge Lucas made following a hearing at Taylor House on 8th October 2015.
Background
2. The appellant is a citizen of Sudan born on 14th January 1959. He applied to come to the UK as the partner of a refugee under paragraph EC-P.1.1 of Appendix FM but was refused by the Entry Clearance Officer Riyadh on 29th September 2014 on the grounds that he was not satisfied that the appellant's relationship with his wife was genuine and subsisting or that they intended to live permanently together in the UK.
3. The judge dismissed the appeal. He said that the sponsor had successfully applied for asylum as a refugee here and a fundamental part of that claim rested on the basis that she had to leave Saudi Arabia because her marriage to the appellant had faltered due to his attitude towards her religious conversion. The judge said that the couple could not reasonably or credibly be said to be in a subsisting marriage in one application and then to be separated in another. He concluded that the marriage was not subsisting.
4. He then wrote as follows:
"There is evidence of some remittances from the sponsor to the appellant and his family in the UK and, there appears to have been four visits. However the facts do not show a subsisting marriage. They are equally to be explained by his wish - inherent or implied - to see and support his two children and he appears to have been doing that from where he is currently based. They do not, in themselves, show that there is a genuine and subsisting marriage to the sponsor. She is after all in the UK partly or mainly as a result of his rejection of her in Saudi Arabia."
5. So far as Article 8 was concerne, the appellant had no status to be within the UK and he could maintain his family life with his two minor children through visits and through other means of communication.
The Grounds of Application
6. The appellant sought permission to appeal on the grounds that the judge had misapplied the burden of proof by, in effect, stating that it was not possible for there to be a genuine and subsisting marriage following the sponsor's declaration in her asylum interview that the marriage had broken down. Moreover it was clear from the determination that he had reached that conclusion before dealing with any of the evidence which might support the contention that the marriage was genuine and subsisting.
7. Second the judge had failed to mention the minor children or to have regard for their best interests.
8. Permission to appeal was granted by Judge Osborne on 9th May 2016.
9. On 20th May 2016 the respondent served a reply defending the determination and submitting that any failure to make any reference to Section 55 and the best interests of the children was immaterial.
Submissions
10. Mr Hart relied on his grounds. He submitted that the Immigration Judge was wrong to characterise the sponsor's asylum application as being based upon separation from her husband. He drew my attention to the Entry Clearance Manager's review which said that there was no evidence at that stage from the sponsor to corroborate the appellant's claim that the couple had reconciled. When that evidence had been supplied to the Immigration Judge it was disregarded.
11. Mr Diwncyz acknowledged the weaknesses in this determination.
Consideration of Whether There is a Material Error of Law
12. The judge erred in law in failing to take into account all of the evidence when making his decision. Clearly the fact that the sponsor, when she claimed asylum, said that the marriage had broken down, was a very important factor. However it was not determinative. The judge also had before him a 78 page bundle of documents including witness statements from the sponsor and her children, evidence of his visits to the UK, proof of correspondence and telephone calls and copies of receipts used by the appellant to send goods to the sponsor and the children, to which he barely referred. The judge appeared to consider that the sponsor's evidence in 2013 was conclusive of the state of affairs in 2016 without taking account of the substantial body of evidence that which could potentially show that the situation had changed.
Findings and Conclusions
13. The sponsor did not have adequate English to give oral evidence but her two children are fluent and were cross-examined by Mr Diwncyz in relation to their father's visits to the UK. Both gave consistent evidence that he had visited them four times since their last arrival here in 2012 and that they were in very frequent contact.
14. Mr Diwncyz made no submissions on the credibility of that evidence, or that the appeal should be dismissed.
15. There was clear evidence in 2013 that the marriage had broken down. In her statement for her asylum claim the sponsor gave evidence that she had changed her religion from Islam to Bahai and that her conversion caused real problems between her and her husband. She said that he had told her that she had committed apostasy and she was no longer his wife and he assaulted her.
16. However since that time there is strong evidence that the situation has changed. In the sponsor's unchallenged witness statement she said that her husband has visited her on four occasions, staying with her in a matrimonial relationship, and she wants to be reunited with him. She reiterated that they had never divorced althought they had disagreed on certain issues. Her sons both gave consistent evidence about his visits and their wish to have their father living with them.They state that the appellant had always remained responsible for the whole family and continues to provide material and moral support from Saudi Arabia.
17. Whilst it is entirely understandable that entry clearance was refused, I am satisfied that the present evidence sheds a different light upon the circumstances which appertained as at the date of that decision and that the couple were and are in a subsisting relationship and intend to live together.
Notice of Decision
18. The original judge erred in law. His decision is set aside. It is remade as follows. The appeal is allowed.

No anonymity direction is made.

Signed Date 12 August 2016

Upper Tribunal Judge Taylor