Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/09066/2012
OA/09067/2012
OA/09071/2012
OA/09074/2012
OA/09077/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 21 June 2013
On 9 July 2013

…………………………………

Before

UPPER TRIBUNAL JUDGE ESHUN

Between

Pushparani Subramaniam (first appellant)
Sinesa Subramaniam (second appellant)
Supathira Subramaniam (third appellant)
Suventhira Subramaniam (fourth appellant)
Suvarniya Subramaniam (fifth appellant)

Appellants
and

THE ENTRY CLEARANCE OFFICER – CHENNAI

Respondent

Representation:

For the Appellants: Mr M Murphy, Counsel
For the Respondent: Mr P Deller, HOPO
DETERMINATION AND REASONS

1. The appellants are citizens of Sri Lanka. They are a mother and her four daughters. The first appellant was born on 29 May 1965, the second appellant on 5 September 2005, the third and fourth appellants are twins and their date of birth is 7 November 1997 and the fifth appellant was born on 29 April 1999. The appellants made an application on 3 February 2012 for entry clearance to the UK as the spouse and children respectively of their sponsor, Mr Kanapathy Subramaniam, a person present and settled in the United Kingdom.

2. The Entry Clearance Officer refused their application on 11 April 2012 for the following reason:

(a) He was not satisfied that the first appellant had provided an English language test certificate in speaking and listening from an approved test provider and she was not exempt from this requirement.

(b) She had married the sponsor on 1 June 1994 and last saw the sponsor in 1999. The first appellant had failed to provide evidence of contact with the sponsor. The only evidence of contact submitted were remittance slips which only dated from 2011 and there was no evidence that funds were received by the first appellant for her upkeep. The respondent was therefore not satisfied that the first appellant and the sponsor intended to live together as a couple.

(c) In the absence of evidence of regular contact, the respondent was not satisfied that their marriage was subsisting or that the first appellant and the sponsor intended living together permanently.

(d) The first appellant had failed to provide satisfactory evidence that there was sufficient accommodation for the parties.

3. The Entry Clearance Manager following his review maintained the decision adding that he was not satisfied that the submitted copies of telephone cards provided sufficient evidence of telephone contact as claimed.

4. The appellants’ appeal was heard by First-tier Tribunal Judge Taylor and dismissed by him in a determination promulgated on 24 January 2013.

5. At the hearing before the judge the Presenting Officer accepted in the light of new documentation that there was adequate accommodation for the appellants and that issue was satisfied.

6. The judge found that the application of the first appellant was appropriately refused as she had failed to meet the English language test requirement. This was because it did not comply with the requirements of being in both speaking and listening and had not been provided by an approved test provider. The appellants’ representative also conceded that she did not fall within any of the exemptions. Therefore as the first appellant failed to meet the requirements of the Immigration Rules, the second to fifth appellants were consequently unable to do so.

7. The judge said that as it had been accepted that the appellants were unable to meet the Immigration Rules, it was not necessary for him to make a specific finding with regard to the subsistence of the marriage and the intention to live together permanently. Nevertheless he went ahead and made specific findings in relation to these issues.

8. The judge found as follows at paragraph 15:

“... There is no dispute that the parties were married and that they lived together for five years and had four daughters together. The difficulty is the paucity of evidence that the marriage has subsisted since the sponsor travelled to the UK in 2000. I accept the submission that the sponsor could not travel to visit the appellants because his status in the UK was not finalised for a period of almost ten years until 2010. I also accept that this is not the first application for entry clearance and that the first application was made soon after the sponsor was granted ILR. However, the sponsor claims that he has been in regular contact with the first appellant, two or three times a week but has submitted no reliable evidence of this assertion. While I accept the submission that phone cards may be acceptable as corroborative evidence of contact, they cannot be accepted in the absence of any other reliable evidence. The phone cards on their own provide no evidence of the numbers contacted or that they were used by the parties. The sponsor has submitted no supporting evidence of contact such as his landline using the access number on the phone cards and has not submitted a single telephone bill indicating that he had telephoned the first appellant. The sponsor claims that he has been in correspondence with the appellants but has produced no exchanges of correspondence in the twelve years since 2010, apart from the recent letters containing the submitted photographs. The sponsor and appellants have submitted no record of the sending of cards on special occasions, or of email or communication through electronic media in recent years. The sponsor claims that he has been sending money regularly since 2001 but has only submitted one money transfer receipt prior to 2011. While I accept that he may not have had a bank account, he was able to send one payment in 2007, as shown by the receipt but has not provided any other receipts until June 2011. He claims that he was sending money through the bank account of a friend but has produced no evidence from the friend relating to the arrangement. The first appellant has submitted her bank statement showing regular income, but she had local income and there is no evidence that the deposits came from the sponsor. While the absence of visits may be explained and the long period of separation is similarly explained, I find that there is virtually a complete absence of evidence of contact between the parties from 2000 until 2011. On the evidence before this Tribunal I cannot be satisfied that the marriage subsists or that there is an intention of the parties to live together permanently”.

9. Permission was granted to the appellants to appeal the judge’s decision on the basis that the judge arguably misdirected himself when he held that evidence of phone cards could not be accepted in the absence of other reliable evidence. This was arguably a misdirection as phone cards can constitute evidence of contact where there is no proper reason to doubt the sponsor’s credibility, as held by the Upper Tribunal in Goudey [2012] UKUT 41. Further the judge arguably erred in law by failing to make any clear finding as to whether he accepted the sponsor’s testimony and, if he did not, why he did not. Leave was further granted on a point that was not raised in the grounds which was this, that the judge arguably erred in law by failing to consider whether family life existed between the sponsor and his daughters simply by virtue of their relationship.

10. Before the start of the hearing I intimated that the appellants’ appeal could not succeed on immigration grounds because at the date of the ECO’s decision she did not submit an English language test certificate that met the requirements of the Immigration Rules. Counsel said that the first appellant took a test and passed but it was not the correct test because it was the wrong provider. The day before the ECO’s decision she took the test again, this time with City and Guilds and she was awarded the certificate on 30 May 2012, after the respondent’s decision. Whilst those facts are not in dispute, it is the facts relevant at the date of the respondent’s decision that apply in an entry clearance decision. Accordingly I found that as the first appellant could not satisfy that requirement of the Immigration Rules, it also meant that the remaining appellants could not also satisfy the Immigration Rules.

11. The issue I have to decide is whether the judge made an error of law in his decision.

12. It was more or less conceded by Mr Deller that in light of Goudey the judge misdirected himself in his assessment of the sponsor’s evidence in relation to the telephone cards. In Goudey the Upper Tribunal held,

“Evidence of telephone cards is capable of being corroborative of the contention of the parties that they communicate by telephone, even if such data cannot confirm the particular number the sponsor was calling and the country in question. It is not a requirement that the parties also write or text each other”.

13. Mr Deller also conceded that the judge had not made a finding as to whether or not he accepted the sponsor’s evidence. Whilst corroborative evidence is not required, the sponsor’s oral evidence was corroborative of the appellants’ claim and it was incumbent on the judge to make a finding on the credibility of the sponsor’s evidence. The judge failed to make such a finding and consequently erred in law in failing to do so.

14. In light of the concessions made by Mr. Deller, I found that the judge made an error of law and the error was material. I set aside the decision in order to remake it.

15. The sponsor Mr Kanapathy Subramaniam gave evidence by confirming his name and address. He adopted his statement dated 7 June 2013. He was not cross-examined by Mr Deller.

Findings

16. In this case accommodation was accepted by the Home Office Presenting Officer below. The sponsor’s ability to maintain the appellants was not made an issue by the respondent. It has been accepted that the award of the English language test was not in place at the time of the ECO’s decision.

17. The outstanding issues in respect of the Immigration Rules are whether the first appellant and the sponsor have a genuine relationship; whether their marriage is subsisting in light of their long separation and have an intention to live together permanently as husband and wife. There is also their appeal under Article 8 of the ECHR. The relevant date for considering the evidence is 9 April 2012, the date the ECO refused their applications.

18. The sponsor said in his statement that he arrived in the UK on 2 February 2000. After he sought asylum he was granted permission to work after six to eight months. Since then he has been financially responsible for his wife and four children. He did not keep all the receipts of the money transfers. He sent 30,000 rupees to his wife and she opened an account in a bank with the money. Through his remittances they have been able to buy food and clothes and some of the money has been used to pay for the children’s school fees.

19. Even though they are separated geographically due to the war, he and his wife have always been in contact by telephone and have discussed every issue of their four children’s welfare and needs and the decision as to where they would study. He has also kept in contact with his family through extended relatives in the UK who have visited them and updated him of their wellbeing. Whenever extended relatives have visited his wife and children, he has sent them gifts.

20. He also mentioned that his wife’s English exam was not accepted because it was not undertaken by an approved provider. She undertook a further test with the right provider and passed it.

21. He said that he cannot go and live in Sri Lanka due to his previous asylum claim. His wife and children cannot make a new application because if they did the new entry clearance Rules would apply and the minimum income for them to join him would be £29,600 per annum. At the moment he is earning £24,000 a year. He added that his family has been waiting to join him since 31 March 2010 when they first made an application as soon as he was granted indefinite leave to remain. At the time he did not have a bank account. They then made a fresh application but by then the Immigration Rules had changed again which meant that his wife was required to pass an English language test. He said that he would like his family to join him as they have been separated due to the civil war in Sri Lanka. Although the Sri Lankan problem has been mitigated, he still cannot visit Sri Lanka.

22. Mr Deller did not challenge the sponsor’s evidence and accepted in light of Goudey that call cards are a cheap and effective way of maintaining contact. Having accepted the sponsor’s evidence that he has been in contact with the first appellant, Mr. Deller accepted that the sponsor has demonstrated that his relationship with the first appellant is subsisting and the existence of their four children can be seen as evidence of a subsisting relationship. In the circumstances I find that the sponsor and the first appellant intend to live together permanently as husband and wife. This means that the first appellant and the four remaining appellants satisfy all the requirements under the Immigration Rules bar one, namely, the inability to satisfy the English language test requirement at the date of decision.

23. I now consider the appellants’ appeals under Article 8 of the ECHR. Again Mr Deller conceded in the light of his acceptance that the first appellant and the sponsor are in a genuine relationship and intend to live together permanently, that there is family life between them. There is also family life between the sponsor and his four children, applying the principles in Razgar. We can skip the second, third and fourth questions in Razgar, which can be answered in the affirmative.

24. The issue comes down to the proportionality of the respondent’s decision, whether the family being kept apart by the decision of the ECO is proportionate and in accordance with Article 8(2) of the ECHR.

25. I find that the English language test is a necessary requirement for the purpose of integration and social cohesion and in respect of immigration control. I also accept that there is no near miss principle in Article 8. The appellants have satisfied almost all of the Immigration Rules with the exception of the first appellant’s ability to satisfy the English language test. Whilst that can be remedied by a fresh application, I find that the fresh application comes with further complications. The second appellant who is the eldest daughter will be 18 in September. However should they make the application before September, the sponsor will have to prove that he is earning £29,600 under the amended Immigration Rules which govern applications made from 9 July 2012. This is a family that has been waiting to join the sponsor since 2010 when he was finally granted indefinite leave to remain in the UK.

26. It is not disputed that the first appellant’s English language was not in place at the date of the respondent’s decision. The fact that she passed the first test, albeit with the wrong provider in my opinion shows that the first appellant is able to speak English to a certain degree. That has been proved by the fact that she sat the test again this time with an approved provider and passed it. This is a factor that counts in her favour.

27. I bear in mind Mr Deller’s submission that Section 55 of the 2009 Act does not apply to children outside the UK but the policy is that an Entry Clearance Officer has to have regard to the wellbeing and safety of the children. I accept that the children have been in the care of their mother for the last fourteen years and have been safe with her. I take account of the sponsor’s unchallenged evidence that he cannot go and live in Sri Lanka even though the problem there has been mitigated. He has been separated from them due to the civil war in Sri Lanka. In the circumstances I accept Mr Murphy’s submission that the only place family life between the appellants and the sponsor can continue is in the UK.

28. I find that the facts in this case are such that balancing all the factors as I am required to do in Razgar, the decision of the ECO, if maintained, would amount to a disproportionate interference with the family life of the appellants and the sponsor.

29. The appeals of the appellants are allowed.

Signed Date

Upper Tribunal Judge Eshun