Upper Tribunal (Immigration and asylum chamber), 2015-05-07, VA/18360/2013 & VA/18361/2013
| Jurisdiction | UK Non-devolved |
| Date | 07 May 2015 |
| Published date | 29 June 2015 |
| Hearing Date | 26 March 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | VA/18360/2013 & VA/18361/2013 |
Appeal Numbers: VA/18360/2013
VA/18361/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: VA/18360/2013
VA/18361/2013
THE IMMIGRATION ACTS
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Heard at Centre City Tower, Birmingham |
Determination Promulgated |
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On 26th March 2015 |
On 7th May 2015 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE FRENCH
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(acting for Entry Clearance Officer, abu dhabi)
Appellant
and
Muhammad Aman
BALAN BIBI
(NO ANONYMITY ORDER MADE)
Respondents
Representation:
For the Appellant Secretary of State: Mr N Smart, Senior Home Office Presenting Officer
For the Respondents: Mr T Muman instructed by Messrs Sehgal Solicitors
DECISION AND REASONS
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This decision is to be read in conjunction with my decision in these appeals promulgated on 4th February 2015 in which I set aside the decision of Judge of the First‑tier Tribunal Thomas and gave directions for the future conduct of the appeals. As in that earlier decision I will continue to refer to Muhammad Aman and his wife Balan Bibi as the Appellants, the title by which they were known before the First‑tier Tribunal and I will refer to the Secretary of State as the Respondent. I stated in directions annexed to that earlier decision that the issues to be decided at the resumed hearing were whether Article 8 was engaged and if so whether the Appellants should succeed in their appeals against the original decisions. The significance of the “barrus” ceremony would be considered in that context.
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The resumed hearing was listed before me. The document produced consisted of the Appellants’ original bundle extending to 74 pages and a further bundle comprising 21 pages. For the Respondent I had the core bundle and an extract from Wikipedia concerning religious ceremonies. Mr Muman for the Appellants said that there were elements under Article 8, 9 ECHR relating to the ceremony referred to and he asked me to reopen the question of the relevance of Article 9 to these appeals. I declined for the reasons explained in my earlier decision and said that all matters would be considered in the context of Article 8. I was aware of the recent reported decision of the Upper Tribunal in Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC) and the judgment of the Court of Appeal in SM and Others (Somalia) v ECO Addis Ababa [2015] EWCA Civ 223 to which I said I would refer if I thought these cases relevant. I heard oral evidence from the Sponsor Mohammed Rafiq, son-in-law of the Appellants, upon which he was cross-examined. Following that oral evidence I heard submissions from both representatives and at the end of the hearing I reserved my decision.
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In his statement for the initial hearing the Sponsor had set out that it was becoming increasingly difficult for the family as a whole to visit Pakistan. There were many family members in this country. He then stated (paragraph 10)
“Furthermore, my father-in-law’s sister – Barish Jan is buried in the UK. She was very close to my father-in-law. She passed away in 2012 and wishes to visit the grave. There is an annual ceremony where we pay our respects to her. This is known as barrus and is a fundamental part of the religion. During this ceremony we all get together and pay our respects. Prayers are said at the graveside. My father-in-law has been denied the opportunity to be part of this ceremony and wishes to attend to be part of this occasion.”
At the hearing before me on 26th March 2015 the Sponsor adopted his later statement signed on 19th March 2015. In that he said that he had attempted to contact local mosques to provide documentary evidence to explain how important the ceremony was to their religion, culture and traditions. He first attended Mr Muhammad Sajjad the imam at Paigham‑E‑Islam mosque and it was there that he was advised that the death anniversary was known as a barsi ceremony and not barrus as he had previously stated. It appeared that where he came from in Pakistan the common term was barrus. The barsi ceremony took place on the anniversary of a person’s death. During the ceremony the whole family gathered together to attend the grave of the loved one. Prayers were recited, food was prepared so that the family could eat together. If the person had passed away in Pakistan food was also donated to the poor. In the UK they simply made a donation to the local mosque or charity of choice. The Appellants had been denied the opportunity to attend such a fundamental ceremony despite the judge in the previous hearing being satisfied that they would return upon completion of the visit. That was notwithstanding the fact that it was the first Appellant’s sister Barish Jan who passed away and as such she was a very close family member. Furthermore it was known to the family that this was one of her last wishes. Her husband had since died also.
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He continued in his oral evidence stating that the Appellants had five children in this country and twelve grandchildren of whom eleven were under the age of 18. At the barsi ceremony it was important for the deceased that the Appellants should attend. It was an opportunity for closure for her brother the first Appellant. It was affecting him that he could not see the burial place and pay his respects. Relatives were going to Pakistan and paying respects to him and mentioning the death of his sister. They had been very close and without him coming to the grave the witness said there would be no closure. It was an important matter being able to come to pay last respects, lay flowers, recite the Holy Book and have an imam present together with close family. In the UK donations were also given to charity. The ceremony could not be done in Pakistan because the burial site was in the United Kingdom.
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He was asked in cross-examination when the Appellants had wished to visit the United Kingdom and he said it was about July of 2013. It was pointed out to him that the application form appeared to have been signed on 31st July 2013 and if the anniversary of the death was 21st July 2013 and if the visit was not going to take place until August then that was after the anniversary had occurred. He responded that it was not necessary for the ceremony to take place an exact year after the death but it could be approximately, within two months either way.
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The witness was then asked whether the Appellants had tried to attend the funeral itself in 2012. The witness replied that the first Appellant was very distraught at that time but he had not made an application. The witness could not say why that was the case. The first Appellant had missed out in 1981 when another sister had died in this country.
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It was put to him that the information from the Wikipedia site seemed to show different ceremonies in different countries. The witness said that he was not familiar with the practice in other countries. It was put to him that the letters from imams referred to the ceremony taking place on the anniversary of the death and there was no mention of it being approximately the anniversary date. He replied that the ceremony would take place annually but in their village in the Atok region they were flexible concerning the timing. They call the ceremony barrus.
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The deceased had lived in the United Kingdom since about 1964. The first Appellant he thought had visited in 1980 for a short period when he had stayed with the deceased and close family. He said that she had visited him in Pakistan, the last occasion being in 1992.
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In submissions Mr Smart asked me to dismiss the appeal, he said the issue of whether or not Article 8 was engaged depended on relationship. It was clear from Kugathas v SSHD [2003] EWCA Civ 31 that a sufficient relationship between adults could only exist in particular circumstances in order to gain the protection of Article 8. He referred to paragraph 21 in Mostafa. There had to be relevant family life. In practical terms the necessary relationship was likely to be between a husband and wife or parents and a minor child. He submitted that the appeals failed the first question posed by Lord Bingham in Razgar [2004] UKHL 27. The relationship aspects failed to meet the test for Article 8. Specific customs relating to barsi/barrus had to be seen in the factual circumstances. With regard to the ceremony the evidence indicated that it was tied to the death anniversary. The applications made by the Appellants would not have permitted them to be present at the anniversary but significantly after the anniversary of the deceased’s death. They intended to visit for four months, not simply to attend the ceremony.
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He accepted that the findings of Judge Thomas as to the Appellants’ circumstances and intentions were preserved which would mean that they were in a position to make a fresh application to the ECO on the basis of those findings. If the barrus ceremony was, as claimed, an annual event they...
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