Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/25395/2012
VA/29443/2012
VA/29449/2012
VA/29451/2012
THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 3 June 2013
On 5 June 2013

Before

UPPER TRIBUNAL JUDGE MOULDEN

Between

MRS SHAHIDA NASREEN
MISS IRSA AMNA
MISS ALISHAH FARJA
MR CHEEMA SARMAD
Appellants
and

ENTRY CLEARANCE OFFICER ABU DHABI
Respondent

Representation:

For the Appellants: Ms E Daykin of counsel instructed by Longfellow solicitors
For the Respondent: Mr C Avery a Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellants are citizens of Pakistan born respectively on 1 January 1966, 24 February 1998, 20 July 2000 and 19 January 2009. The first appellant is the mother of the other appellants. I will refer to her as the appellant and to them as the appellants. They have been given permission to appeal the determination of First-Tier Tribunal Judge Goodrich who dismissed their appeals against the respondent's decisions of 10 July 2012 to refuse to grant them entry clearance to the United Kingdom as family visitors. The applications were refused under the provisions of paragraph 320(7B), 41 and 46 of the Immigration Rules. Their sponsor is the appellant's mother, Mrs Khursheed Bibi.

2. The first reason for refusal was the respondent's conclusion that the appellant had used deception in connection with an application made on 16 July 2008. She had submitted a false bank statement and had not challenged this conclusion or the decision. Therefore, under paragraph 320(7B) of the Immigration Rules any subsequent application made before 16 July 2018 would be automatically refused. The second reason was that the evidence submitted did not provide an accurate picture of the appellant's and her husband's financial circumstances. If the appellant was to travel to the UK with her children but without her husband, leaving him in Pakistan, then his whereabouts and circumstances were not clear. The respondent concluded that the appellants had not shown that they had sufficient ties to Pakistan or that there was a sufficient incentive to leave the United Kingdom at the end of the proposed visit. Her application was also refused under the provisions of paragraph 41 (i) and (ii). The other appellants’ applications were refused under the provisions of paragraph 46.

3. The appellants appealed and the judge heard their appeals on 28 February 2013. Both parties were represented. The sponsor and her son attended the hearing. Because the interpreter "was not immediately available" the sponsor's written evidence was admitted without her being cross-examined. Her son gave oral evidence based on his written witness statement prepared that day.

4. The judge found that it was for the respondent to prove the allegation which formed the basis of the refusal under paragraph 320(7B) and that she had failed to do so. However, the judge went on to say that this did not amount to a finding that the bank statements submitted in July 2008 were genuine.

5. In relation to the appeals under paragraph 41 and 46 and after making detailed findings between paragraphs 27 and 37, the judge said, in paragraph 37; "the subsistence of the marriage is a matter on which the appellant has placed emphasis as providing an incentive to return but no evidence has been adduced from the husband even though his whereabouts and circumstances were placed in issue. I am not satisfied as to the appellant’s marital circumstances on the balance of probabilities and in my view this is a material factor in relation to her incentive to return." She concluded that the appellant had not shown, to the standard of the balance of probabilities, that she met the requirements of paragraph 41(i) and (i). The other appellants failed in line with their mother. It had not been argued that they met the requirements for independent travel without their mother.

6. The judge went on to consider the Article 8 human rights grounds, concluding that the refusal would not be a disproportionate interference with the appellants’ human rights. She dismissed the appeals under the Immigration Rules and on human rights grounds.

7. There are a number of grounds of appeal. The First-Tier Tribunal Judge granted permission to appeal in relation to all of them, whilst of the view that there were only two grounds with identifiable arguable merit. They were firstly, that the judge may have erred in law by failing to put to the sponsor what she found to be inconsistencies in relation to the husband's earnings and the deposits into the appellant's bank account. Secondly, by failing to put to the sponsor the inconsistency on which she relied as to the husband's address.

8. Ms Daykin informed me that the appellants only wished to rely on the grounds which related to the husband's circumstances, status, address and employment. The other grounds were not pursued.

9. Ms Daykin submitted that there was a wealth of documentation to show that the appellant and her husband were married to each other and that they were the parents of the three children. For example her passport at page 6 of the bundle, the family certificate (page 27) and the medical letter (page 64). In her witness statement the sponsor said; "my all three daughters are happily married in living in Pakistan with their families". Whilst it was the case that the husband's bank statements showed a different address to that given by the appellant, the judge recorded a plausible explanation in paragraph 34 where she referred to evidence of two homes owned by the family. If the judge had a concern about the different addresses then she should have put the point to the witness.

10. Ms Daykin said that the bank statements referred to by the judge in paragraph 36; "that arrived so late that no opportunity existed to verify their contents" were in fact the originals of documents which had already been submitted as copies. The judge's comments as to inconsistencies should have been addressed in the light of the number of positive findings and the evidence of the children's continuing schooling in Pakistan.

11. Ms Daykin said that the judge's conclusions as to the husband's salary (paragraph 33 of the determination) should have been put to the witness, as a matter of common law fairness. I asked Ms Daykin whether the appellants had been put on notice as to the respondent's doubts by the statement in the refusal letter that "the whereabouts of your husband, and his circumstances, are not clear". She said that this was no more than a very broad allegation.

12. Mr Avery accepted that the grounds were now narrowed down to the circumstances of the appellant's husband. He submitted that the judge's findings in paragraph 35 to 37 were sound. The refusal letter had put the appellant's on clear notice as to the points relating to the husband which they needed to address. He emphasised that at no stage had any statement from the husband been provided. If, as was now suggested, the reason why there was a different address for the husband on his bank statements was because the family owned two homes then there was no statement from anyone, in particular the appellant or the husband, to say that this was the case.

13. Ms Daykin did not reply. I reserved my determination.

14. I find that the refusal letter made it clear that the respondent did not accept the evidence submitted by the appellants as to the husband's employment and income, his whereabouts or circumstances. The appellants have been legally represented throughout the appeal process, by the same solicitors, and were represented at the hearing by competent counsel. They would have been well aware of the need to try and fill the gaps in the evidence as well as the obvious inconsistencies or unexplained factors referred to by the judge. I agree with the judge who said, (in paragraph 36) "the reasons for refusal very clearly placed in issue the whereabouts and circumstances of the appellant’s husband". It was not unfair for the judge not to put these points to anyone at the hearing, whether the appellants’ counsel or the one witness who gave oral evidence, the sponsor's son. In any event he was not the person obviously best qualified to answer these questions. Those best qualified to answer were the appellant and her husband. The appellant had sufficient notice of the gaps and inconsistencies in the evidence and could have addressed them by way of a witness statement in advance of the hearing. However, what is most remarkable is the total lack of any witness statement from the husband. The judge took this into account, in paragraph 34, and was entitled to do so. It is a significant factor, the more so because of the lack of any explanation for his failure to provide evidence if, as is suggested, he lived with the appellant in domestic harmony and this provided a strong incentive for the appellants to return and live with him in Pakistan.

15. The judge did not simply follow the respondent's reasoning and conclusions. She made her own independent assessment in the process reaching some different conclusions from the respondent, favourable to the appellants. However, she made a proper assessment of the evidence in the round including the factors favourable to the appellants before reaching conclusions open to her on all the evidence. There is no error of law and I uphold her decision.

………………………………………
Signed Date 4 June 2013
Upper Tribunal Judge Moulden