Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01402/2017

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 4 April 2018
On 30 April 2018

Before

UPPER TRIBUNAL JUDGE LANE

Between

asuncion [g]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Sills, instructed by Parker Rhodes Hickmotts, Solicitors
For the Respondent: Mrs Pettersen, a Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Asuncion [G], born on [ ] 1966 is a female citizen of the Philippines. She arrived in the United Kingdom as a visitor in 2005 and claimed international protection in July 2013. She claimed protection having been arrested in West Yorkshire on 30 November 2011 and served with a notice IS151A as an overstayer. By a decision dated 20 January 2017, the respondent refused the appellant's claim. She appealed to the First-tier Tribunal (Judge Hillis) which, in a decision promulgated on 25 March 2017, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The appellant's international protection appeal had first become before Judge Shimmin who dismissed it in a decision dated 27 March 2014. Subsequent to that decision, the appellant's circumstances have changed. The appellant is still married to a man who lives in the Philippines. On 13 August 2010, she entered into an Islamic marriage with Mr Ali. Before the Upper Tribunal, her principal argument concerned her inability to pursue her family life with Mr Ali and any jurisdiction other than the United Kingdom. She continues to claim to fear violence at the hands of her husband in the Philippines should she return to that country and should he discover that she has returned.
3. Judge Shimmin properly based his decision upon the earlier determination of Judge Shimmin. Judge Hillis concluded that the appellant would not be at risk of violence at the hands of her Filipino husband. He found [37] that there was "no new reliable evidence ? show that the Philippine legal system actively prosecutes people for the offence of adultery ?". Again, following Judge Shimmin's determination, Judge Hillis [38] found that there were no insurmountable obstacles preventing the appellant "returning to the Philippines relocating to another area if necessary [away from the area occupied by the appellant's husband] seeking an annulment of her marriage to enable her to marry Mr Ali at a Filipino law and joining her there". He had concluded (as had Judge Shimmin) at [35] that the appellant had "failed to show she will not be able to obtain an annulment of her marriage and naming her to legally formally marry Mr Ali in the secular ceremony and then be able to have him accompany her to the Philippines".
4. I find that the appellant's appeal on Article 8 ECHR grounds should be allowed. I have reached that conclusion for the following reasons. First, I am satisfied that the appellant has proved that she would be unable to be joined by Mr Ali in the Philippines unless he were her lawful husband. The Philippine Immigration Act 190 makes no provision for unmarried partners to gain entry clearance to the country. In answer to question raised by Judge Jordan when granting permission, I am satisfied that the appellant cannot arrange for the entry of Mr Ali to the Philippines as her partner; he may only join her as her lawful spouse.
5. Secondly, I find that both Judge Shimmin and Judge Hillis have underestimated the central problems faced by the appellant in obtaining an annulment of her marriage from her existing husband. Both the previous judges dealt with the possibility of obtaining an annulment in very short order, concluding that an annulment would be available to the appellant "on the payment of a fee". That is a gross over-simplification. Not surprisingly, the evidence indicates that, as in most jurisdictions, the annulment of a marriage in the Philippines requires the petitioner to prove that the grounds for annulment as required by statute (sexual incapacity or a wilful refusal to consummate the marriage etc). The appellant has been separated from her husband for some time and there is no evidence which might suggest that any of the grounds required to prove annulment are available to this appellant. Further, the evidence shows that it would be necessary to serve the annulment application upon the appellant's husband. Serving such an application, especially if, for example, sexual incapacity were alleged, would not only alert the husband to the presence of the appellant in the Philippines but might conceivably provoke him into violence against the appellant. In any event, I am not satisfied that the appellant is able to prove any of the grounds required for an annulment. In consequence, I find that that remedy would not be available to her.
6. It follows, therefore, that if (i) the appellant cannot obtain an annulment of her marriage, (ii) divorce is out of the question, and (iii) Mr Ali may only join her in the Philippines if he is her lawful spouse, then Mr Ali will not obtain entry clearance to the Philippines. There is no challenge to the genuineness and subsistence of the appellant's relationship with Mr Ali. She enjoys family life in the United Kingdom with him. Indeed, she may only lawfully enjoy family life with Mr Ali in the United Kingdom since there are insurmountable obstacles preventing her from enjoying such family life with him in the country of her nationality. In the light of these findings and observations, I have concluded that the First-tier Tribunal erred in law such that its decision falls to be set aside. I have remade the decision. I find on the basis of the evidence before the Upper Tribunal (which includes that put before the First-tier Tribunal) the appellant has established that there exist insurmountable obstacles preventing her enjoying family life with Mr Ali in the Philippines. The appellant's appeal is, therefore, allowed on Article 8 ECHR grounds.
Notice of Decision

The decision of the First-tier Tribunal which was promulgated on 23 March 2017 is set aside. I have remade the decision. The appellant's appeal is allowed on Article 8 ECHR grounds.

No anonymity direction is made.

Signed Date 20 APRIL 2018

Upper Tribunal Judge Lane