Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03768/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 November 2017
On 20 November 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

GRACIA BISELELE TSHINGUTA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Farhat, legal representative
For the Respondent: Mr Clarke, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of the Democratic Republic of Congo who appealed the respondent's decision to refuse her asylum and human rights claims. The appellant withdrew her appeal on asylum grounds at the First-tier Tribunal hearing; her appeal on human rights grounds was dismissed by Judge of the First-tier Tribunal Wright ("the FTTJ") in a decision promulgated on 2 June 2017.
2. No anonymity direction was made in the First-tier Tribunal and no request was made for such a direction in this tribunal. None is required.
3. Permission to appeal was granted in bare terms by First-tier Tribunal Judge Shimmin on 20 September 2017.
4. Thus the matter has come before me.
Submissions
5. Mr Farhat, for the appellant, adopted the grounds of appeal which can be summarised thus. The only issue in dispute in the appeal was the validity of the marriage certificate of the appellant and sponsor, her husband, who was a DRC refugee; he could not return to the DRC and there were therefore insurmountable obstacles pursuant to EX.1 of Appendix FM. He submitted the FTTJ's reasoning on the validity of the marriage certificate was inadequate; the FTTJ's reference to reliance on Tanveer Ahmed (Starred) [2002] UKIAT 00439 had been misplaced in a human rights appeal. The FTTJ had erroneously followed the country of origin guidance (Landinfo and Danish Immigration Service FFM of January 2007), as if it were black letter law without taking into account the appellant's explanations for the divergence from that guidance. The original certificate had been produced and was sufficient evidence of the marriage having been issued by the appropriate authority. The FTTJ had failed to take into account the witness, documentary and DVD evidence when assessing the validity of the marriage. The FTTJ had misapplied the guidance, treating it as prescriptive.
6. Mr Clarke did not agree that the sole issue before the FTTJ was the validity of the marriage certificate; he submitted there was also an issue as to the appellant's suitability pursuant to the suitability criteria in Appendix FM: she had used a false passport to enter the UK. That said both he and Mr Farhat agreed that the FTTJ had failed to make any finding on the issue of suitability pursuant to Appendix FM. That was not a material issue given the appeal had been dismissed. Mr Clarke submitted the FTTJ had properly adhered to the guidance in Tanveer Ahmed. As regards the country of origin guidance to which the FTTJ had referred in considering the reliability of the marriage certificate, this was guidance which the appellant had adduced. The FTTJ had identified discrepancies as between the guidance and the witness evidence such as to undermine the weight to be given to the marriage certificate. He was entitled to find at [39] the marriage had not taken place in accordance with DRC law, the burden of proof being on the appellant. There was no legislation or objective material to rebut the guidance.
7. In reply, Mr Farhat submitted that Tanveer Ahmed was guidance for the proposition that the authenticity of documents generally fell in line with general credibility findings. This case needed assessment in a wider context. The appellant had not given evidence on which her credibility could be assessed, having withdrawn her asylum appeal; she had merely given evidence about the marriage procedure. It was accepted that the appellant's late withdrawal of her appeal on asylum grounds was a relevant factor in the assessment of her credibility. However, the marriage had occurred before the asylum claim. This was also the case with regard to her use of a false passport (a matter which was only taken into account in the assessment of Article 8 outside the Rules). The Country of Origin guidance had only been produced by the appellant to rebut the statement in the refusal letter that the respondent did not recognise proxy marriages. (In the event, the respondent's representative had conceded as much at the hearing before the FTTJ).

Discussion
8. The Immigration Appeal Tribunal (as it then was) set out at paragraph 38 the principles in Tanveer Ahmed. This includes the following:
"1. In asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied on.
2. The decision maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round.
3. Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the balance of probabilities to the higher standard does not show that a document is reliable. The decision maker still need to apply principles 1 and 2."
9. The Court stated at [31] that some documents
"are "genuine" to the extent that they emanate from a proper source, in the proper form, on the proper paper, with the proper seals, but the information they contain is wholly or partially untrue. Examples are birth, death and marriage certificates from certain countries, which can be obtained from the proper source for a "fee", but which contain information which is wholly or partially untrue. The permutations of truth, untruth, validity and "genuineness" are enormous. At its simplest we need to differentiate between form and content; that is whether a document is properly issued by the purported author and whether the contents are true. They are separate questions. It is a dangerous oversimplification merely to ask whether a document is "forged" or even "not genuine". It is necessary to shake off any preconception that official looking documents are genuine, based on experience of documents in the United Kingdom, and to approach them with an open mind".
10. Further, at [33]:
"it is for the individual claimant to show that a document is reliable in the same way as any other piece of evidence which he puts forward and on which he seeks to rely".
11. The FTTJ cites the appropriate burden and standard of proof at [32] of the decision. He refers at [38] to having considered the reliability of the evidence in the round pursuant to Tanveer Ahmed. While the appeal was no longer being pursued on asylum grounds, this was an appeal on human rights grounds. The principles in Tanveer Ahmed for the assessment of documentary evidence applied. It was submitted before me that the appellant had not given evidence on which a full assessment of her credibility could be made. That was not the case: she knew the validity of her marriage certificate was a crucial issue in the appeal and she had the opportunity to give evidence on how it was acquired. Indeed she gave such evidence seeking to explain the discrepancies as between the background material regarding proxy marriages in the DRC and her own claimed circumstances.
12. The FTTJ was referred to the guidance in Cudjoe (Proxy marriages: burden of proof) [2016] UKUT 00180 (IAC) and had regard to that guidance. In particular he took into account, in his assessment of the evidence, the second part of the headnote to the effect that
"the means of proving that a proxy marriage was contracted according to the laws of the country in which it took place is not limited to the production of a marriage certificate, as it recognised in Kareem (Proxy marriages - EU law) [2014] UKUT 00024 (IAC)"
I do not accept the submission for the appellant that the FTTJ should have accepted the original marriage certificate, at face value, as being evidence of a valid marriage. It would have been an error of law for the FTTJ to have done so. He appropriately considered the content of the marriage certificate in the context of the background material (adduced by the appellant herself, namely the Country of Origin (COI) report), the witness evidence and the documentary evidence. I do not accept the FTTJ should have taken the COI Report into account only to the limited extent for which it was adduced at the hearing. It was of relevance to the FTTJ's assessment of the reliability of the marriage certificate and the FTTJ was entitled to have regard to it, there being no challenge to its content. He did not treat that guidance as prescriptive: for example, he took into account the background material was dated. He identified various internal discrepancies and inconsistencies in the appellant's own evidence which called into question her credibility [36]. He identified various discrepancies as between the evidence of the appellant, the content of the marriage certificate and the guidance. In the absence of alternative background material to explain the discrepancies as between the guidance and the content of the marriage certificate, given his concerns about the credibility of the witness evidence, the FTTJ was entitled to find the evidence was insufficient to demonstrate the marriage certificate was a valid one. His findings cannot be faulted. They are sustainable on the evidence before him.
13. For these reasons, there is no error of law in the FTTJ's decision. The grounds of appeal to this tribunal disclose no more than a disagreement with the outcome.
Decision
14. The making of the decision of the First-tier Tribunal did not involve the making of a material error on a point of law.
15. I do not set aside the decision.
16. This appeal is dismissed.

Signed A M Black Dated 15 November 2017
Deputy Upper Tribunal Judge A M Black