Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01556/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 October 2016
On 17 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

NO
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Canter, instructed by Terence Ray, Solicitors
For the Respondent: Mr S Walker, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the appellant against a decision of the First-tier Tribunal issued on 16 August 2016 dismissing her appeal against the respondent's decision made on 25 January 2016 refusing her application for asylum.
Background
2. The appellant is a citizen of Saudi Arabia born on 23 May 1989. She first came to the UK on a student visa in July 2008 and started an English course which she completed in February 2009 when she returned to Saudi Arabia. In March 2009 she returned to the UK as an aspiring student to attend a course offered by an English school, which she completed in May 2010 and she intended to start a foundation course at university. Whilst in the UK she met her husband, as she claims, also a citizen of Saudi Arabia and this developed into a love relationship.
3. However, the appellant's father wanted her to marry one of his friends. She was very upset by this and said that she would not marry an old man. Her father threatened her, saying that he had given his word to this other man and, as far as he was concerned, nothing was going to stop the marriage. However, under a pretext facilitated by one of her friends, the appellant was able to leave the family home and travel to the airport and then on to Bahrain. It was her case that she met her husband there and subsequently on 14 May 2015 they were duly married in Egypt. However, they could not register their marriage, as they were unable to produce consent from the male guardian or the Saudi Arabian Embassy.
4. In the light of these difficulties the appellant and her husband went through a different type of marriage, which did not require parental consent. The appellant and her husband, having returned to Bahrain, left for Paris and then Switzerland before entering the UK on 27 February 2015. They had planned to stay only for a week but the appellant received a telephone call from a friend in Saudi Arabia informing her that a family neighbour had seen the appellant and her husband together in Bahrain, her father was now aware of the situation and she was at risk of being killed by him to eradicate the shame she had brought on the family.
5. The respondent did not accept that the appellant had married without her family's knowledge or permission or that she had received any threats due to marrying without permission. She was not satisfied that the appellant had a genuine subjective fear of returning to Saudi Arabia and her application was refused accordingly.
The Hearing before the First-tier Tribunal
6. The appellant appealed against this decision and her appeal was heard on 22 July 2016. The judge heard oral evidence from the appellant and, having considered the documents submitted in support of the appeal including an expert report from Dr Rebwar Fatah on marriage law in Moslem countries, he found that the appellant was not a credible witness. He said that he was driven to find that her accounts were no more and no less than a fabrication devised to extend her stay in the UK. A marriage certificate had been produced in evidence for the marriage in Egypt but the judge found that this was a fabrication. He also found that the appellant's evidence about her claim that she could not renew her passport anywhere inside or outside Saudi Arabia due to her father's orders was contradictory and not true and that her account was deeply implausible and finally, he drew an adverse inference from the failure to claim asylum until 27 June 2015. For these reasons the appeal was dismissed.
The Grounds and Submissions
7. In the grounds of appeal it is argued that the judge's finding that the appellant had not entered into an Urfi casual marriage was based on a misunderstanding of the evidence set out in Dr Fatah's report about whether there would be a written agreement of or witnesses at such marriages. It is further argued that the judge was wrong to have assumed that the person identified in the seal on the marriage certificate was necessarily a government official and, in any event, these points were not put to the appellant at the hearing. The grounds also argue that the judge failed to clarify a discrepancy referred to in [17] when dealing with the issue of the renewal of the appellant's passport, failed to give adequate reasons at [18] why the appellant's account was deeply implausible and erred in the weight he attached at [19] to the delay in claiming asylum.
8. Permission to appeal was granted by the First-tier Tribunal only in respect of the ground relating to the marriage certificate. When granting permission Judge Ford said:
"2. The Tribunal records that the expert Dr Fatah concluded at paragraph 62 that the appellant's marriage was Urfi casual. The decision also records that Dr Fatah "outlined those constituents of an Urfi casual marriage and the appellant's marriage drawing explicitly on the contents of the document translated as a 'legal marriage contract' could not be reconciled with his understanding of the relevant constituents". The appellant argues that this is a misunderstanding of what the expert said in his report.
3. Although the expert outlines his understanding of the procedures involved in the Urfi casual marriage I cannot see that at any point he concludes that the certificate produced by the appellant is not compliant with such procedures.
4. It is arguable that the Tribunal may also have erred in assuming without putting it to the appellant that [WS] whose seal appears on the marriage certificate was an official of the state. There were problems with this certificate in that it does state on its face that it is a legal marriage contract which is inconsistent with the appellant's position that she could not enter into a legal marriage because she could not produce evidence of parental consent. ..."
9. At the hearing before me Mr Canter submitted that the judge had erred in his finding at [15] that the constituents set out in the marriage certificate produced in evidence simply could not be reconciled with the constituents for an Urfi casual marriage which Dr Fatah had in mind. Mr Canter pointed in particular to paras 62-70 of the report and to para 85 where Dr Fatah said, "If the couple did not get permission, as [NO] has stated, then her marriage was not an official one. Thus, it is likely that [NO's] marriage in Egypt was based on the Urfi casual procedures". He submitted that the judge had erred by saying that Dr Fatah tended to the view that such marriages would be verbal not written and that, although he stated that it was not always written, he said in the same paragraph that the contact was variable. The judge said that witnesses were not required and that it was a salient feature of the legal marriage contract produced that there were two witnesses whose details were set out. Mr Canter submitted that Dr Fatah's evidence was that an Urfi casual marriage was not always written and did not always take place in the presence of witnesses. The judge was wrong, so he argued, to make a finding on the basis that the fact that there were witnesses and a written certificate was determinative of whether or not an Urfi casual marriage had taken place. He further submitted that the judge had been wrong to attach weight to the fact that the document relied on bore the words "Signed and sealed: [WS]" and that it followed that it was necessarily a ceremony taking place under the auspices of an official.
10. Mr Walker pointed out that at para 90 of his report Dr Fatah when talking about Urfi marriages said that the verbal or written contract was not registered with state authorities and
"given that [NO] got married without the knowledge of her parents in a foreign country the possibility of a casual Urfi is more plausible than the possibility of a proper Urfi as the couple kept their marriage a secret and did not get the consent of either their families or the Saudi Embassy".
11. He accepted that the judge had not taken full account of the expert evidence when reaching his findings on the marriage certificate produced. Although permission had not been granted on the other grounds, Mr Walker accepted that the error was such that it was material to the outcome of the appeal.
Consideration of Whether the Judge Erred in Law
12. I accept the submissions of Mr Canter, which were not contested by Mr Walker. The fact that an Urfi casual marriage would often be verbal (or perhaps more accurately oral) and not written is not in itself determinative and similarly, the fact that witnesses are not required does not in itself mean that a witnessed ceremony may not constitute an Urfi casual marriage. I am therefore satisfied that a number of relevant matters arising from the expert evidence were left out of account when the judge found that the legal marriage contract was a fabrication and that there was no marriage between the appellant and her claimed husband. Both representatives submitted and I agree that in these circumstances the proper course was for the appeal to be remitted to the First-tier Tribunal for a full rehearing.

Decision
13. The First-tier Tribunal erred in law and the decision is set aside. The appeal is remitted of the First-tier Tribunal for further consideration by way of a rehearing by a different judge. The anonymity order made by the First-tier Tribunal remains in force.

Signed: H J E Latter Dated: 7 November 2016

Deputy Upper Tribunal Judge Latter