Upper Tribunal (Immigration and asylum chamber), 2023-07-15, UI-2022-002738
| Appeal Number | UI-2022-002738 |
| Hearing Date | 13 June 2023 |
| Date | 15 July 2023 |
| Published date | 08 August 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI- 2022-002738
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-002738 |
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First-tier Tribunal No: HU/54116/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 15 July 2023
UPPER TRIBUNAL JUDGE HANSON
Between
AISHA MOHAMMED OMAR ADBULLAH
(NO ANONYMITY ORDER MADE)
Appellant
and
AN ENTRY CLEARANCE OFFICER
Respondent
Representation:
For the Appellant: Mr Howard of Fountain Solicitors.
For the Respondent: Mr Lawson, a Senior Home Office Presenting Officer.
Heard at Birmingham Civil Justice Centre on 13 June 2023
DECISION AND REASONS
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Following a hearing at Birmingham CJC on 29 November 2022 the Upper Tribunal found an error of law in the decision of the First-tier Tribunal Judge who allowed the appellant’s appeal on Article 8 ECHR grounds against refusal of her application for entry clearance under the Immigration Rules (‘the Rules’) as the spouse of a refugee.
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The appellant, a citizen of Sudan born on 1 July 1995, was found to have used deception in an earlier application leading to the current application being refused under paragraph 9.8.7 of the Rules as she had applied before 21 August 2030.
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Error of law was found as it was not possible to establish in the decision how the First-tier Judge had factored in the fact that deception had been employed in a previous application, together with it being found that inadequate reasons had been provided for why it was unduly harsh for family life to continue, even if at arms length with occasional visits, on the facts of this case.
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Preserved findings from the decision of the First-tier Tribunal relate to the use of deception in the earlier application and the finding that the appellant and her husband are in a genuine relationship.
Discussion and analysis
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It is not disputed the current application was for the purposes of family reunion. The refusal by the Entry Clearance Officer (ECO) reads:
I have decided you do not meet the requirements of the Immigration Rules for the following reasons:
Your application for permission to entry clearance is refused under paragraph 9.8.1 Part 9 of the Immigration Rules because you have previously breached immigration laws and have applied during the time period specified in paragraph 9.8.7 of Part 9.
Home Office records show that you used deception in a previous application that you made for entry clearance on 16/01/2020, full details of this were outlined in the decision notice dated 21/08/2020 (DD). Therefore, any application made before 21/08/2030 which falls to be considered by reference to Part 9 of the Immigration Rules will be refused. The period starts from the date of the previous event in which the deception or submission of falsified documents or information was employed.
I acknowledge your sponsor’s statement dated 11/02/2021 (J) referring to the money receipts submitted with your previous application which states:
“I used to send my wife money by Dahabshiil Money Transfer. The company had a branch in Birmingham. I used to send my wife money via Dahabshiil since January 2019. I usually send her around £50 to £100 every two months. My wife used to receive the money in Sudan.”
“ When my wife received the decision on her previous entry clearance application, I was shocked that the Entry Clearance Officer stated that the money transfer receipts were not genuine.”
“I attempted to contact Dahabshiil to find out what had happened as I had genuinely attended Dahabshiil to send money to my wife and had been provided with the receipts. I was shocked to find out that there Birmingham Branch had closed when I attempted to visit them and that their local telephone number was no longer working. I do not know what has happened. All I know is that I sent my wife money via Dahabshiil. My wife had received the money and I had been provided with the receipts that I gave to my wife.”
However, it is your responsibility to ensure any documents submitted with the application part genuine and in your case the documents submitted with your previous application as outlined above were verified as nongenuine. Therefore, little weight has been applied to the explanation submitted.
Furthermore, the declaration signed by yourself within your Visa Application Form that application confirms the following:
“I declare that the documents that I have supplied with this application are genuine and the statements I have made with this application are truthful. I understand that the Home Office (or a trusted third party) may make reasonable checks to confirm the accuracy and authenticity of evidence I have provided and documents I have submitted with this application.”
I am also aware that my application will be automatically refused and I may be banned from going to the UK for 10 years if I use a false document, lie or withhold relevant information. I may also be banned if I have breached immigration laws in the UK. I am further aware that should I use a false document, lie or withhold relevant information my details may be passed to law enforcement agencies.”
It is therefore mandated to refuse your application under paragraph 9.8.1 Part 9 of the Immigration Rules.
I have therefore refused your application.
I also considered whether there are any exceptional circumstances in your case, including whether refusal breached Article 8 of the European Convention on Human Rights (ECHR). I have also considered whether there are compassionate factors which may justify a grant of leave outside the rules.
You have not raised any exceptional circumstances nor have any been identified in your case.
It is noted that you and your sponsor both have a valid travel documents, if your sponsor chooses to do so they can travel to a safe third country where you can arrange to meet and therefore, there is no breach under Article 8.
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In his witness statement dated 6 January 2023 the appellant’s husband, Mr Abdullah, stated he and his wife are in a genuine subsisting relationship and that they intend to live permanently together as husband and wife. He says he and his wife cannot continue their relationship in Sudan as he has been recognised as a refugee from Sudan and he cannot return there as his life will be in danger. Mr Abdullah claims it is impossible for him and his wife to continue their relationship long-term at a distance and there will be unduly harsh consequences as a result. He states he and his wife speak daily on the telephone when they can secure a connection as the village where she lives has intermittent Internet connection. Mr Abdullah states that he sends his wife around £50 a month, more if she needs additional funds. He claims without the funds he sends she will have no money to survive. Mr Abdullah claims his wife lives alone as both her parents passed away although his brother is able to visit her from time to time, approximately once a month. He claims he and his wife could not live in a third country as they do not have status in another country. Mr Abdullah says his wife speaks some English, that he speaks a reasonable level of English himself, and that he has returned to working for a company in Telford four days a week earning about £450 per week. It is seasonal work. Mr Abdullah claims he will be able to support his wife in the UK without recourse to public funds and that he and his wife wish to continue their lives together as husband and wife.
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In reply to answers put in cross examination Mr Abdullah stated he last saw his wife in 2013 and that they have lived apart for about 10 years since he left Sudan. When asked whether he accepted that false documents had been used in a previous application he stated he did not. He claimed that when he got leave to remain in the United Kingdom he decided to earn some money. Mr Abdullah was asked why he did not carry on working and visiting his wife, there being a reference to his having worked for the company he currently works for previously but only recommencing employment on 23 December 2022, to which he claims he applied for nearly a year and wanted to work but could not give a satisfactory answer. Mr Abdullah was asked why could not work abroad as he had in the past and why, even if he could not visit Sudan, he could not meet his wife in another country, to which he claimed he could not go back to Sudan which is why he left.
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Mr Abdullah was asked by Mr Howard in re-examination what prevented him and his wife continuing family life in a country other than the UK to which he claimed that he wanted his wife here in the UK and did not know if other countries were secure. When he was asked as he had visited his wife elsewhere before he could not do so again, he claimed he could not go as he could not afford to go.
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It is noted that the replies did not address key aspects of the questions.
The appellant’s case is that she married her husband on 1 February 2012 in Debaiba, Sudan and that they lived together as husband and wife from their wedding day until her husband left Sudan on 1 March 2013. The appellant stated she regained contact with her husband when he arrived in Libya in April 2014...
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