Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/16347/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 July 2016
On 02 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

ENTRY CLEARANCE OFFICER
Appellant
and

Mrs Mursal Azizi
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr L Tarlow, Senior Home Office Presenting Officer
For the Respondent: Ms S Mardner, Counsel, instructed by Kothala & Co (Harrow Road)

DECISION AND REASONS

1. The appellant in this case is an Entry Clearance Officer and the respondent is Mrs Mursal Azizi. However, for the purposes of this decision and reasons I shall refer to the parties as they were before the First-tier Tribunal, where Mrs Azizi was the appellant.
2. The appellant who was born on 11 February 1991 is a citizen of Afghanistan who applied in May 2014 for entry clearance as the spouse of Zabihullah Azizi, the sponsor, a naturalised British citizen present and settled in the UK. The respondent refused the application in a decision dated 8 November 2014. In a decision dated 11 January 2016 Judge of the First-tier Tribunal Rebecca Harrington allowed the appellant's appeal.
3. The respondent appealed to the Upper Tribunal on the basis that the judge was required to make a finding as to whether the requirements of the Immigration Rules were met as at the date of decision and it was argued that the judge's findings were largely based on postdecision evidence. It was also argued that other findings made by the judge were simply irrational, although this ground of appeal was not pursued before me. I heard from both representatives and at the end of the hearing I reserved my decision.
Decision on Error of Law
4. Mr Tarlow for the Entry Clearance Officer relied on the grounds of appeal to the Upper Tribunal. Mr Tarlow pointed out that at paragraph [23] the judge set out that Skype print-outs were post decision evidence. Mr Tarlow also pointed to the key finding at [29] of the judge's decision which he submitted was obviously based on postdecision evidence including that as at the date of the hearing, on 4 January 2016, the appellant and the sponsor were in a genuine and subsisting relationship.
5. In summary, Ms Mardner submitted that the judge made her findings on the basis that the marriage was subsisting. She submitted that the judge had found the sponsor to be a credible witness. Although she initially submitted that the respondent had accepted that the relationship was genuine and subsisting, when I took her to [17] of the judge's determination she accepted that the issue of whether the relationship was genuine and subsisting was properly before the First-tier Tribunal. Ms Mardner pointed out that the judge had found that there was a genuine relationship and that the judge had accepted that the couple had married and reiterated that the sponsor was credible. She submitted that the judge had relied on pre-decision visits.
6. It is common ground that evidence of the circumstances appertaining to the date of decision was admissible before the First-tier Tribunal judge if it shed light on the facts at the date of decision (DR (ECO: post-decision evidence) Morocco* [2005] UKIAT 0038) applied). Evidence of post-decision visits and of 'intervening devotion' generally is admissible as evidence of a subsisting marriage and evidence of phone calls/contact can be so considered (Goudey (subsisting marriage -evidence) Sudan [2012] UKUT 00041 (IAC); Naz (subsisting marriage - standard of proof) Pakistan [2012] UKUT 00040 (IAC)). Indeed the judge, in a detailed and careful decision correctly directed herself as to this case law (at paragraph [28]) and that there is no particular evidence that is required to evidence a genuine and ongoing relationship.
7. At paragraph [7] of the decision and reasons the judge also correctly directed herself that she must consider matters as they stood at the date of the decision and significantly she also properly directed herself that she could consider matters arising after the date of decision only to the extent that they shed light on the situation at the date of the decision. It is clear therefore that the judge recognised the relevance of post-decision events (which in this case included visits by the sponsor to the appellant and ongoing contact). This must also be seen in the context of the respondent's decision of 8 November 2014 which specifically cited a lack of evidence or information to demonstrate contact or intervening devotion (and which the judge recorded at [13f]).
8. Although the judge may not in her decision have expressly distinguished between evidence pre and post decision (other than to state at paragraph 23 that the Skype print-outs were all post decision evidence) it is clear from a careful reading of the decision in its entirety that the judge was relying on post decision evidence only in so far as it cast light on the circumstances of the relationship at the date of the Entry Clearance Decision. For example, the judge relied, at paragraph [29a] on "two lengthy visits to Afghanistan to see the appellant since the marriage together with the lengthy period that he stayed in Afghanistan immediately after their marriage." This included a lengthy return visit after the marriage but before the decision for 52 days from 12 September 2014 until 4 November 2014. In addition the judge also accepted that the appellant and the sponsor lived together in the sponsor's family home immediately after their marriage, on 4 June 2013, for 75 days until 17 August 2013. Only one of these three periods, when the judge found that the appellant and the sponsor were together in Afghanistan, post-dated the decision and there is no error in taking this into account as additional evidence that the marriage was subsisting on 8 November 2014. Although again the judge specifically took into account the post decision evidence of contact from [23] to [26] the judge had correctly reminded herself (at [23]) that this was post decision evidence. It is clear therefore in light of this and her self-direction (at [7] and [28]) that she only took this information into account in so far as it cast light on the situation as at 8 November 2014.
9. The key concern of the respondent was that the judge concluded at paragraph [29] that "the appellant and the sponsor are in a genuine and subsisting relationship and intend to live permanently together." It was the respondent's case that this statement indicated that the judge had made a decision as to the circumstances at the date of the hearing rather than the date of decision. However I am not satisfied that it can be said that this statement at [29] related to the date of the hearing rather than the date of the decision and in light of the judge's findings generally and her careful directions, at [7] and [28] as to the permissible evidence in such a case, it is clear to me that the judge was satisfied that the marriage was genuine and subsisting and that the couple intended to live together as at 8 November 2014. The fact that the judge may also have been satisfied that the marriage continued to subsist at the date of decision is not an error of law, material or otherwise.
10. There was a considerable amount of evidence before the judge which predated the decision of the respondent on 8 November 2014. The judge also significantly made strong findings of credibility in the sponsor's favour, finding him to be 'a compelling witness' who gave evidence 'in a perfectly straightforward manner, even in relation to issues that did not assist the appellant's case. The respondent gave no reason to doubt his truthfulness and I accept his evidence as credible'. The judge recorded the sponsor's evidence as to the development of the appellant and sponsor's relationship, including that it was an arranged marriage, they met a couple of times before the wedding, that the appellant moved into his home with his mother on 4 June 2013 and has remained there and evidence as to contact since then via Skype/Viber and visits to Afghanistan. The judge also recorded that the sponsor identified the individuals in photographs in the appellant's bundle which showed the appellant and the sponsor together and which were taken in Afghanistan including at the appellant's brother's wedding.
11. The judge also took into consideration that the sponsor alerted the judge to the fact that there had been an error in the witness statement evidence as to their pre-marriage relationship. It was the judge's view that the sponsor need not have alerted the judge to this error and that this was consistent with him not attempting to mislead the Tribunal. The judge gave clear reasons for accepting the evidence of the sponsor and preferring that to the reasons given by the respondent in relation to claimed inconsistencies in the evidence. The judge also found that the sponsor spoke coherently about his relationship and about the appellant's family and that the appellant and the sponsor appeared comfortable with each other in the shown photographs. The judge also took into consideration that the appellant had been living (including at the date of decision) in the sponsor's home in Afghanistan with his mother, which the judge found consistent with the intention to live with the sponsor in the UK.
12. All of these findings were open to the judge on the basis of the evidence available as to the circumstances appertaining the date of decision. I am not satisfied that any error of law has been made out. In the alternative that I am wrong and if the judge may have fallen into error in failing to specifically distinguish between the pre and post decision evidence, that error was not material given the strength of her findings as to the relationship from the date of the marriage on 4 June 2013 onwards and the wealth of evidence available as to the existence of the relationship at the date of decision.
13. Although the respondent also took issue with the judge's findings that there was a large cake at the wedding as irrational, this must be considered in the context of the judge's wider findings that all the evidence pointed to a genuine relationship in its entirety which included that the cake and the wedding in general (and the judge accepted the sponsor's evidence which included that the wedding took place before 700 guests) indicated that the marriage was genuine and not one of convenience. There is nothing irrational in that finding when considered in the entirety of the decision.
14. It should be noted that if any error had been found to be material I would in the alternative have remade the decision allowing the appeal on the basis of the permissible evidence which indicates that the marriage was genuine and subsisting as of 8 November 2014 and that the couple, at that date, intended to live together permanently in the UK.
Notice of Decision

The decision of the First-tier Tribunal, allowing Mrs Azizi's appeal does not contain a material error of law and is maintained.

No anonymity direction was sought or made.

Signed Date: 29 July 2016

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee award was sought or is made.

Signed Date: 29 July 2016

Deputy Upper Tribunal Judge Hutchinson