Upper Tribunal (Immigration and asylum chamber), 2021-03-24, HU/04473/2019
| Jurisdiction | UK Non-devolved |
| Date | 24 March 2021 |
| Published date | 07 April 2021 |
| Hearing Date | 11 March 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/04473/2019 |
Appeal Number: HU/04473/2019
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Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: HU/04473/2019 |
THE IMMIGRATION ACTS
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Heard at Field House (via Skype) |
Decision & Reasons Promulgated |
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On 11 March 2021 |
On 24 March 2021 |
Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
Iman mohammedien hussein idris
(ANONYMITY DIRECTION not made)
Appellant
and
ENTRY CLEARANCE OFFICER, PRETORIA
Respondent
Representation:
For the Appellant: Mr Holmes, of counsel, instructed by All Nations Legal Services
For the Respondent: Mr Avery, Senior Presenting Officer
DECISION AND REASONS
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The appellant is a Sudanese national whose date of birth is given as 1 January 1997. She appeals against a decision which was issued by First-tier Tribunal Judge Monaghan on 22 November 2019. By that decision, the judge dismissed the appellant’s human rights appeal against the respondent’s refusal of her application for entry clearance as the spouse of a recognised refugee.
Background
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The appellant and the sponsor are non-Arab Darfuris. She states that she has lived in a camp for internally displaced persons (the Nifasher Camp) in Darfur since 2004. She and the sponsor are said to have married in Darfur in 2013. I shall refer to the sponsor as IH. He made his way to the United Kingdom, arriving on 25 April 2014. On 19 August 2014, he underwent an asylum screening interview in which he stated that he had been married since 2013 and named the appellant as his spouse. I have no further information about his asylum claim but it is not in issue between the parties that he was granted limited leave to remain as a refugee in August 2014.
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The appellant has applied for entry clearance as IH’s spouse on four occasions. The previous applications were refused on 6 February 2018, 26 April 2018 and 26 September 2018. I do not understand her to have appealed against any of those decisions. She made her most recent application for entry clearance on 31 October 2018. The application form was completed by her current advisors. Amongst other information disclosed in that form, the appellant stated that she had travelled to Ethiopia in October 2018 in order to spend time with the sponsor.
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The application was refused by the Entry Clearance Officer on 10 February 2019. The ECO was not satisfied that the applicant was the partner of a person who had refugee status granted under the Immigration Rules or that the relationship had existed before the sponsor left Sudan (paragraphs 352A(i) and (iii) of the Immigration Rules refer).
The Appeal to the First-tier Tribunal
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An appeal was lodged on 8 March 2019. The grounds of appeal responded to the ECO’s decision in robust terms and invited an Entry Clearance Manager to review the decision. A review did take place on 20 May 2019 but the ECM maintained the decision, noting that there was no evidence from the UN or the Red Cross to show that the appellant and the sponsor had lived together in the IDP camp.
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So it was that the appeal came before the judge, sitting in Bradford, on 11 November 2019. The appellant was represented by Mr Holmes, the respondent by a Presenting Officer. The judge heard oral evidence from the appellant and submissions from both advocates before reserving her decision.
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In her reserved decision, the judge noted the reasons given by the ECO for refusing the application at [3]-[10] and the reasons given by the ECM for maintaining the decision at [12]-[16]. She noted Mr Holmes’ reliance on two of the respondent’s published policies regarding the significance, in a subsequent family reunion application, of a sponsor naming the applicant as their spouse during their asylum claim. At [19]-[39], the judge set out the appellant’s claim, including a summary of the oral evidence given by the sponsor. At [40]-[43], she detailed the documentary evidence before her. The judge turned to her findings at [44].
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At [45], the judge observed that the appellant had provided a number of documents to substantiate the claim that she and the sponsor had married in June 2013 and had lived in an IDP camp together before he came to the United Kingdom. The judge stated at [46] that she had a number of concerns about those documents. There was a joint certificate from the Camp Director and the Camp Mayor (of Nifasha Camp) but inadequate details (dates, names and signatures) appeared on the document. The judge noted that the certificate was also inconsistent with the sponsor’s oral evidence as regards the date on which he had moved to Nifasha Camp (2005 or 2006): [47]. It was concerning that the author of the (separate) Certificate of Residence had stated that the sponsor was presently living in the Abu Shouk Camp although he had left Sudan in 2014: [48].
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At [49]-[54], the judge addressed issues in relation to the two marriage certificates which were relied upon by the appellant. She was concerned about the hesitant and reluctant manner in which the sponsor had given evidence about the way in which he had obtained the original certificate from 2013. The judge then considered the sponsor’s explanation for the existence of two marriage certificates. In response to the ECO’s concern about the coexistence of two certificates, the sponsor had said that they had been given a certificate by the sheikh who conducted the marriage ceremony in 2013 and that the appellant had taken that certificate to court in 2017 to get an official marriage certificate which was ‘used when travelling abroad’: [51]. The judge noted Mr Holmes’ reliance on this explanation in his skeleton argument but she was concerned that there was no background material in support of it: [52]-[53]. At [54], she said this:
Therefore I find that there is nothing, other than the sponsor’s evidence to substantiate this point. I find that it is reasonably likely that the sponsor puts forward this explanation to explain firstly why there are two marriage documents and secondly why they are so far apart in date. I do not find his explanation a plausible one and it is not supported by background evidence.
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At [55], the judge stated that she did not share the respondent’s concern about the absence of registration documents (perhaps from the UNHCR) showing that the appellant and the sponsor had lived together in an IDP camp before he left to seek asylum. It was plausible, she thought, that the appellant and the sponsor would have been focused not on obtaining such documentation but on dealing with the harsh and difficult conditions in the camp. At [56], however, the judge considered that the sponsor’s evidence that there was no ‘big organisation’ running the camp cast further doubt on the certificate from the Camp Director.
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At [57]-[58], the judge set out what she considered to be the ‘greatest credibility concern’ in the case. The point occupies most of the ninth page of the judge’s decision but might be summarised quite shortly. There was a discrepancy in the evidence about the camp in which the appellant and the sponsor were said to have married and lived. The marriage certificates and the documents from the camp officials gave the name of the camp as Abu Shouk, whereas the appellant and the sponsor had consistently given the name of the camp as Nifasha. The sponsor maintained that the camps were one and the same but the background material did not support that assertion.
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The judge then addressed the fact that the sponsor had named the appellant as his wife when he claimed asylum. She recalled what was said in the two policy documents upon which Mr Holmes relied. At [60], she noted that the appellant’s date of birth was given in the course of her application for entry clearance as 1 January 1997, whereas it had been given as 22 January 1997 in the sponsor’s asylum claim. She continued:
Even if I were to reach a finding that this is a mere error and that I can rely on this document as evidence the pre-flight relationship, I have decided that the plausibility and credibility concerns I have identified above and the unreliability of the documents before me do outweigh the evidence in the SEF form.
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The judge was nevertheless prepared to accept, at [61], that the appellant and the sponsor were in a genuine and subsisting relationship (although it is to be recalled that this part of the Immigration Rule, sub-paragraph (v), was not placed in issue by the ECO). She was not satisfied that the Rules were met because the appellant had failed to persuade her that the marriage did not take place after the sponsor had left Sudan in order to seek asylum: [62]. She noted that it was open to the appellant to make a fifth application for entry clearance if she could present evidence that Abou Shouk and Nifasha were the same camp.
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In the final paragraphs of her decision, the judge considered whether the appellant’s ongoing exclusion was in breach of Article 8 ECHR. I reproduce those short paragraphs in full:
[65] I find that there is evidence before me that the appellant and the sponsor exercising family life (although I make no finding about when it started). The...
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