Tribunal decisions

The decision

IAC-FH-NL-V3

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/15304/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 21 March 2016
On 1 August, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

ENTRY CLEARANCE OFFICER
Appellant
and

qaisar mehmood
(ANONYMITY DIRECTION not made)
Respondent

Representation:

For the Appellant: Mr G Harrison, Senior Presenting Officer
For the Respondent: Mr C Brown, Counsel instructed by Roberts and Smith Solicitors

DECISION AND REASONS

1. In this decision the Appellant is referred to as the ECO and the Respondent is referred to as the Claimant.

2. The Claimant, a national of Pakistan, date of birth 28 December 1984, had applied for entry clearance on the basis of marriage which had been refused by the ECO on 27 October 2014. The basis of the refusal was that the Claimant had submitted various documents but had not submitted photographic evidence or sufficient evidence to show that the Claimant and his wife were present at the same wedding. As a matter of fact it was said that they had previously met in 2007 and no factual issue was taken with that claimed meeting. The Claimant had the burden of proof of showing on a balance of probabilities that at the date of the ECO's decision he met each relevant requirement of paragraph EC-P.1.1(d) of Section EC-P in terms of eligibility for entry as a partner.

3. The matter came before First-tier Tribunal Judge Brookfield (the Judge) who, on 21 May 2015, concluded that the appeal by the Claimant should be allowed because the evidence established that he met the relevant requirements of the Immigration Rules, HC 395, as amended (the Rules) with particular reference to Appendix FM of the Rules. The ECO challenged the decision and on 11 October 2015 permission to appeal was given by Upper Tribunal Judge Kopieczek.

4. The Claimant submitted a Rule 24 response, dated 15 October 2015, essentially asserting that the Claimant had done all that could be reasonably required and a proper explanation had been given as to why there was an absence of photos taken at the wedding ceremony: It was said that it was due to the death of a close family member and, out of respect, the marriage was not, as it might otherwise have been, a conventional celebration of the wedding. It was further explained that there had been no party or other celebration thereafter for the same reason. It was submitted that there was no obligation to provide photographic evidence and that was an erroneous basis of refusal under the Rules. Also in the light of the evidence that had been provided and/or said to be available for the judge to consider, there was no error of law by the judge accepting the evidence provided and rejecting the reason for refusal raised by the ECO.

5. The Judge did not make any adverse factual findings in respect of the evidence he had received from the live witnesses. Although to a degree there was some lack of balanced presentation of the argument by the judge, that was not due to any fault of the Claimant or those representing him or giving evidence on his behalf. The judge heard the evidence and was entitled to reach the conclusions that she did.

6. The grounds do not suggest perversity or irrationality and essentially amount to a disagreement with the view the judge formed. It is not for me to interfere with the decision because I might have reached a different view, bearing in mind the evidence the judge had included that from the witnesses, together with a statement from the Iman who performed the Nikah on 9 October 2012, and also the evidence of Syed Ghafoor Ahmed. The latter confirmed he was present at the ceremony and was one of the witnesses at "a quiet family event due to the passing of the grandmother of Sirah and Quisar, dated 22 September 2012". His statement confirmed no photographs were taken on the day due to those circumstances and there was confirmation, as was repeated to me, that the bride and the Claimant are first cousins.

7. In the circumstances I conclude that the evidence before the judge was such that she was entitled to reach the view that she did and even if I was to take a different view as I might have done.

8. It does not seem to me in the light of R Iran [2005] EWCA Civ 982 and E & R [2004] QB 1044 CA that it was appropriate to interfere with the judge's decision.

9. The ECO's appeal is dismissed. The Original Tribunal's decision stands.

ANONYMITY ORDER

10. No anonymity order is necessary or appropriate.

Signed Date 27 July 2016

Deputy Upper Tribunal Judge Davey

P.S. I regret the delay in promulgation which is due to the file being mis-stored