Upper Tribunal (Immigration and asylum chamber), 2015-10-20, OA/02379/2014
| Jurisdiction | UK Non-devolved |
| Date | 20 October 2015 |
| Published date | 05 May 2016 |
| Hearing Date | 06 October 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | OA/02379/2014 |
Appeal Number: OA/02379/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/02379/2014
THE IMMIGRATION ACTS
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Heard at Newport |
Decision & Reasons Promulgated |
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On 6 October 2015 |
On 20 October 2015 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
emada adam abaker mohamed
Appellant
and
ENTRY CLEARANCE OFFICER – abu dhabi
Respondent
Representation:
For the Appellant: Miss V Delgado of Cardiff Immigration Services
For the Respondent: Mr I Richards, Home Office Presenting Officer
DETERMINATION AND REASONS
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The appellant is a citizen of Sudan who was born on 1 January 1985. On 4 October 2013, she applied for entry clearance under para 319L of the Immigration Rules (HC 395 as amended) to settle in the UK as the spouse of the sponsor, Ahmad Abdul Rahman Abaker, who is a recognised refugee in the UK.
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On 15 January 2014, the Entry Clearance Officer refused the appellant’s application. The ECO was not satisfied that the appellant and sponsor had met as required by para 319L(ii) or that they intended to live permanently with each other and that their marriage was subsisting as required by para 319L(iii).
The Appeal to the First-tier Tribunal
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The appellant appealed to the First-tier Tribunal.
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In a determination promulgated on 6 January 2015, Judge Britton dismissed the appellant’s appeal under para 319L. Like the ECO, Judge Britton was not satisfied that the appellant and sponsor had met or that they intended to live together permanently and that their marriage was subsisting. However, he allowed the appellant’s appeal under Art 8 of the ECHR.
The Appeals to the Upper Tribunal
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Both parties appealed to the Upper Tribunal.
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The Secretary of State’s grounds argue that the judge had erred in law in allowing the appellant’s appeal under Art 8 on the basis that he had done so on facts that post-dated the ECO’s decision contrary to s.85A(2) of the Nationality, Immigration and Asylum Act 2002 (“NIA Act 2002”).
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On 17 February 2015, the First-tier Tribunal (UTJ Martin) granted the Secretary of State permission to appeal.
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In addition, the appellant sought permission to appeal against the judge’s decision to dismiss the appeal under the Immigration Rules. The grounds challenge the judge’s adverse factual findings on the basis that he failed properly to take into account post-decision evidence relating to contact between the appellant and sponsor contrary to the approach set out in Naz [2012] UKUT 0040 (IAC) and Goudey [2012] UKUT 00041 (IAC).
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The appeal was initially listed before me on 24 June 2015, however I adjourned the hearing as no decision had been made on the appellant’s application for permission to appeal.
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Subsequently, on 8 July 2015 the First-tier Tribunal (Judge Pooler) granted the appellant permission to appeal on the basis that it was arguable that the judge had failed properly to consider post-decision evidence and had required the appellant to produce specific evidence of contact prior to the decision.
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On 14 July 2015, the ECO filed a Rule 24 notice submitting that the judge’s decision was properly open to him including his finding that the post-decision meeting of the sponsor and appellant in October 2014 in Egypt was arranged specifically as a result of the ECO’s refusal.
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Thus, the appeal came before me.
The Hearing
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At the hearing, Miss Delgado represented the appellant and relied upon a skeleton argument submitted at the previous hearing which reflects the appellant’s grounds of appeal. In essence, she made three arguments.
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First, she submitted that the judge had failed to take into account the whole of the evidence including evidence of contact prior to the ECO’s decision dating from March 2013. This, Miss Delgado submitted, included the evidence post-dating the decision, namely that the appellant and sponsor had met in Egypt between 1 October 2014 and 28 October 2014 and as a result of that meeting, the appellant had become pregnant. Miss Delgado pointed me to the relevant evidence in the appellant’s bundle in relation to those matters.
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Secondly, Miss Delgado submitted that the judge had been wrong to take into account that the appellant had failed to produce documentary evidence of contact before 2013 including photographs of the sponsor and appellant together before their marriage. She submitted that it was not necessary for the appellant to produce specific evidence. There was the evidence of the parties together with the other evidence of contact.
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Thirdly, Miss Delgado raised a point not addressed in the grounds nor indeed in her skeleton argument based upon the Secretary of State’s guidance on “Spouses: SET03” published on 13 November 2013 at para 13 which states that:
“If, after an initial refusal on the grounds of not having met, the couple can satisfy the ECO that a meeting in the sense of ‘making the acquaintance of’ has since taken place, the ECO must review the original decision and consider whether refusal is still maintained.
This review can take place after an appeal has been lodged ....”
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Miss Delgado submitted that in the light of the evidence concerning the appellant and sponsor meeting in October 2014 in Egypt, the ECO had failed to apply this guidance by reviewing his original decision and conclusion that they had not “met” as required by para 319L(ii).
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In relation to the ECO’s appeal in respect of Art 8, Miss Delgado accepted that if the judge’s findings in relation to the Immigration Rules stood, then the appellant could not succeed under Art 8 based upon the post-decision facts.
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On behalf of the ECO, Mr Richards accepted that post-decision evidence was capable of throwing light on a matter at the date of decision in applying the Immigration Rules. He submitted, however, that the judge had taken that evidence into account but had simply found it not to be persuasive. The judge had found that the meeting in October 2014 was contrived given the ECO’s refusal based, in part, on the fact that they had not met. Mr Richards pointed out that the judge had taken into account that the sponsor had not sought to visit the appellant earlier despite having a valid travel document, namely a Sudanese passport issued to him on 15 February 2012. Mr Richards submitted that the judge was entitled to find that the appellant and sponsor had not met and had not established that their marriage was subsisting and that they intended to live together permanently. Those findings were adequately reasoned and were not irrational.
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In relation to the decision under Art 8, Mr Richards submitted that that decision was wholly, and wrongly, based upon post-decision facts, namely the meeting in October 2014 and the fact that the appellant had become pregnant. The judge was, Mr Richards submitted, not entitled to take those matters into account by virtue of s.85A(2) of the NIA Act 2002.
Discussion
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The basic facts are not in dispute. The sponsor left Sudan in 2006 and came to the UK where he claimed asylum and was granted ILR on 16 June 2014. On 16 December 2011, the appellant and sponsor married by proxy.
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The appellant and sponsor claim that they are first cousins (which the judge did not accept) and that they came from the same area in Sudan, and had attended school together.
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It is also accepted that the sponsor and appellant met in Egypt between 1 October 2014 and 28 October 2014 where, as a result, the appellant became pregnant: the sponsor being the father.
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Before the judge, the sponsor gave oral evidence and a statement was produced. The sponsor’s evidence was that he had left Sudan in 2006 and travelled via a number of countries before arriving in the UK in September 2008. He had had limited contact with his parents and he only started contact with his wife after they were married. In October/November 2011 the sponsor’s father asked him by telephone if he was happy to marry the appellant. The sponsor agreed and it was decided that his brother should stand in for him as proxy. The sponsor’s evidence was that he first spoke to his wife on the day that they were married. He used calling cards, Viber and Skype to keep in contact with her. There was evidence before the judge of financial support but the only evidence of contact between the appellant and sponsor (apart from what he said in his oral evidence) dated from March 2013.
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In his evidence, the sponsor said that he had first obtained a travel document valid from 11 July 2009 until March 2014. His Sudanese passport was issued on 15 February 2012.
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The sponsor explained in his evidence that the reason why he and the appellant had not travelled to meet one another earlier than October 2014 was that the sponsor was enrolled in an English language course...
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