Naz (subsisting marriage – standard of proof)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake,Juss |
| Judgment Date | 14 December 2011 |
| Neutral Citation | [2012] UKUT 40 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 14 December 2011 |
[2012] UKUT 40 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Blake, PRESIDENT
DEPUTY UPPER TRIBUNAL JUDGE Juss
For the Appellant: Mr. N Smart, Senior Home Office Presenting Officer
For the Respondent: Aman Solicitors
Naz (subsisting marriage — standard of proof) Pakistan
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i) It is for a claimant to establish that the requirements of the Immigration Rules are met or that an immigration decision would be an interference with established family life. In both cases, the relevant standard for establishing the facts is the balance of probabilities.
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ii) Post decision visits by a sponsor to his spouse are admissible in evidence in appeals to show that the marriage is subsisting: DR (ECO: post-decision evidence) Morocco * [2005] UKIAT 00038 applied.
This is an appeal by the Entry Clearance Officer against a decision of Judge Freer promulgated 25 July 2011 allowing the appeal of Mrs Naz (the claimant) against a refusal of entry clearance to come to the United Kingdom as a spouse.
The brief chronology is that the claimant is a national of Pakistan. Her husband is settled in the United Kingdom. He travelled to Pakistan for an extended visit from 14 November 2008 to 14 September 2009. On 9 April 2009 a marriage ceremony took place between them for which there are two pieces of evidence, a Nikah Nama and a set of photographs.
The Entry Clearance Officer refused the application for the following reasons:
“It is reasonable to expect that in a genuine, subsisting, supporting and affectionate relationship which you claim has existed since 2008 that there would be significant evidence of regular contact, signs of companionship, emotional support, affection, and abiding interest in each other's welfare and wellbeing. I note your sponsor was not present at the marriage ceremony and a proxy marriage was undertaken. You have not provided sufficient evidence of your claimed telephone contact. Given the background to your relationship, the lack of evidence of personal contact and regular correspondence between you I am not satisfied that you have genuinely formed a relationship and durable with outward signs of affection and companionship. You have therefore failed to demonstrate satisfactorily that both you and your sponsor intend to live permanently with each other as his or her spouse or that there is any affection and support between you. You have also failed to demonstrate that there is any substance to the marriage. Therefore on the balance of probabilities I am not satisfied that your relationship with your sponsor is subsisting or you intend to live with your sponsor”.
There was an appeal to the First-tier Tribunal when the husband gave evidence. Like the ECO, the judge referred to the guidance given in GA (“Subsisting” marriage) Ghana * [2006] UKAIT 00046. That authority says at paragraph [12] that subsisting means not merely that the marriage is still in existence as a legal formality but the matrimonial relationship subsists.
The judge took into account the evidence that was placed before him in the notice and grounds of appeal, the wedding photographs, the sponsor's passport, the witness remittances slips and the sponsor's statement of July 2011. He observed correctly at [9] that the burden of proof is on the appellant and the standard of proof required is a balance of probabilities. Thereafter there are some problems with this determination.
First, at [10] the Judge makes an error against the interests of the appellant when he says that s. 85(5) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) limits him to considering only evidence at the time of the decision to refuse entry clearance. For that reason he excluded from consideration a post-nuptial visit between 17 February 2011 to 17 April 2011. That is an error because s. 85(5) of the 2002 Act only excludes post-decision evidence that does not relate to an issue or a circumstance that was in contention at the time of the decision. The law is properly explained in DR (ECO: post-decision evidence) Morocco * [2005] UKIAT 00038 in which the President of the IAT (Mr Justice Ouseley) explains that post-decision evidence that throws light on circumstances in contention and in existence at the time of the decision is admissible. However, this error could not found a ground of appeal by the ECO.
The judge next found that the Entry Clearance Officer made a mistake in considering that this was a proxy marriage and concluded that both the photographs showing the bride and groom present at the marriage and the Nikah Nama itself supported the fact that both parties were present. As has been carefully pointed out before us by Mr Smart for the ECO, an analysis of the document demonstrates that the bride had appointed a proxy to represent her, and the sponsor's signature on the Nikah was in block capitals rather than the signature used elsewhere in the documents before us. However the judge is perfectly right that the Nikah Nama did not itself suggest that...
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Muhammad Irfan Khan For Judicial Review Of A Decision By The Secretary Of State For The Home Department
...standard of balance of probabilities. He relies for this on a passage in Naz (subsisting marriage - standard of proof) Pakistan [2012] UKUT 00040 (IAC) at paragraph 11, where the Upper Tribunal recited, with obvious acceptance, a submission that it was trite that the standard of proof of th......
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Upper Tribunal (Immigration and asylum chamber), 2015-01-02, OA/10799/2013 & OA/10798/2013
...standard of proof was the balance of probabilities and this was confirmed in Naz (subsisting marriage – standard of proof) Pakistan [2012] UKUT 00040(IAC). As stated in the headnote (i)to “…It is for a claimant to establish that the requirements of the Immigration Rules are met or that an i......
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Upper Tribunal (Immigration and asylum chamber), 2013-09-13, IA/19806/2010
...11. A more recent illustration is the determination of the Tribunal in Naz (subsisting marriage - standard of proof) Pakistan [2012] UKUT 40 (IAC) in which the Tribunal, presided over by the President, Blake J, said that it was for a claimant to establish that an immigration decision would ......
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Upper Tribunal (Immigration and asylum chamber), 2019-06-05, HU/14036/2018
...case, so that the burden of disproving it shifts to the government. 8. In Naz (subsisting marriage – standard of proof) Pakistan [2012] UKUT 00040 (IAC) the Tribunal held that it is for a claimant to establish that the requirements of the Immigration Rules are met or that an immigration dec......