ZB & HB (Validity and recognition of marriage) Pakistan  UKAIT 00040
Date of hearing: 5 September 2008
Date Determination notified: 11 September 2009
|ENTRY CLEARANCE OFFICER, ISLAMABAD||RESPONDENT|
A marriage that is otherwise valid is not rendered void by demonstration of the incapacity of one of the parties at the time of the ceremony; but a marriage that is valid may, in special circumstances (which may or may not relate to capacity) not be entitled to recognition as such.
"You married your sponsor on 09.05.04 and I note that your sponsor stayed in Pakistan until 08.06.04 which is the time you saw him. You claim that since your sponsor has been in the UK you have remained in regular contact via telephone, every second or third day between an hour and two hours at a time (Q13). Given the distance between you and your sponsor it should be reasonable in a subsisting and genuine relationship for an open discussion to take place about your lives, history and backgrounds. The fact that you demonstrated little knowledge of your sponsor does not correspond with the assertion of frequent contact nor does it reflect a subsisting and genuine relationship. At interview you were asked about your sponsor's medical condition; however, you displayed a significant lack of knowledge in this regard. As stated in his Doctor's letter dated 08.02.07, your sponsor suffers from "…Misocephaly [swelling of the brain] with severe mental retardation as well as physical disability. He also has severe learning difficulties and attend day care centre because he is totally unable to look after himself physically". I also note your legal representatives in the UK have stated that your sponsor has limited comprehension and communication. Given the magnitude of his disability and the effect it has on his life it should be reasonable to expect that you would have some knowledge regarding this. When you were asked about your sponsor's illness, you merely stated he was disabled (Q16). You were then asked to explain in what way he was disabled, to which you stated that "he has weakness in his arms and also mentally sometimes he is fine" (Q17). You also stated that he could change his own clothes and take food (Q28) however this goes against the diagnosis of his doctor as mentioned in his letter dated 08.02.07. You were unable to correctly state what care and medication he receives (Q28-Q29). When you were asked how you maintain such contact with your sponsor when he has limited communication skills you admitted that you actually speak to your mother-in-law and not your husband via telephone (Q13 & Q24-Q25). At interview you were also given the opportunity to tell us what you know about your sponsor and his life in the UK that was not related to his illness, however you were unable to answer these questions (Q36-Q37). You were then specifically asked about your sponsor's likes, hobbies and interests. You stated that he liked to play and had no interest (Q38). You were asked about what you and your sponsor had discussed about the area he lives in the UK and where you and your son propose to reside. You were only able to tell us that he had a double storey house (Q41-Q43). Given that you have been married to your sponsor for almost three years, such a paucity of knowledge does not correspond with the assertion of frequent contact. 281 (iii) HC 395.
You were also asked at interview to tell us why your parents agreed with this marriage for you. You stated this was because you liked your sponsor (Q44). You were then asked to tell us what it was you liked about him and the only reason you have was that "his eyes are beautiful" (Q45). You were unable to explain how you and your sponsor have maintained a relationship while he has been in the UK given that you are unable to speak to him and only speak to your mother-in-law (Q26). Your response to this question was that "He [sponsor] was our relative and that is why this all happened." I have taken into consideration the fact that your marriage was traditionally arranged and that you and your sponsor are related outside marriage. However, these points in your favour do not outweigh my doubts concerning your intentions to live together, given your lack of knowledge regarding your sponsor and lack of intervening devotion. 281 (iii)
I acknowledge that you and your sponsor have a child together born 01.03.05. However, I have to take into consideration that your sponsor has not sought to visit you or the child since he left Pakistan on 08.06.04, one month after the wedding. I consider it reasonable that, were you genuinely intending to live together, he would have stayed in Pakistan with you for more than just one month, given that he has no employment commitments or would have returned for at least a visit. Furthermore you have also failed to provide a credible explanation as to why it has taken you almost three years after marriage to submit to this application to joining your sponsor, other than "I submitted the case but it got late" (Q36). I do not consider this to be the reasonable conduct of a couple who genuinely intend to live together. 281 (iii) HC 395.
My doubts regarding the subsistence of your relationship have been compounded by your lack of knowledge regarding your spouse's ill health. I consider that were you in a genuine and subsisting relationship you would be better aware of his medical problems. I accept that without being informed of these you cannot possibly know however this then calls into question your spouse's intentions. If he considered this to be a genuine marriage I would expect him or his family to have discussed his medical problems with you. 281 (iii) HC 395.
For all the reasons stated above I am not satisfied that each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting. 281 (iii) HC 395
Letters from the Department of Work and Pensions (DWP) show that your sponsor is in receipt of £91.85 Income Support per week and £76.65 Disability Living Allowance (DLA) per week.
Your sponsor is unable to work for the foreseeable future due to his illness and there is no indication that you hold any qualifications, experience or linguistic ability to obtain employment in the UK. On a balance of probabilities it is unlikely that you and your spouse will be able to maintain yourselves, without recourse to additional public funds, shortly after your arrival in the UK. 281 (v) HC 395"
"This patient suffers from Misocephaly with severe mental retardation as well as physical disability. Has severe learning disabilities and attend day care centre because he is totally unable to look after himself physically."
Q. (a) What illness and/or condition(s) the patient suffers from?
A. Learning difficulties due to congenital cerebral palsy diagnosed in 1996.
Q. (b)What are the mental and physical effects of the illness/condition(s)?
A. [He] is physically fit. His mobility is normal and he eats and drinks independently. The learning difficulties he exhibits do not affect his physical health. He is mentally co-operative, he listens carefully and understands and agrees to actions appropriately. He communicates his needs well to his mother and brother who both understand him well in return
Q. (c) Are these curable and if so is the patient under treatment?
A. His condition is not curable and he is not on any regular medication. He attends a Day Care Centre regularly.
Q. (d) Is the patient receiving any prescribed medication and side effects of any such medication?
A. His is not on any regular medication
Q. (e) The patient's ability to undertake the following:
? Personal hygiene and cleansing
? Physical function
? Ability to clothe himself
? Take food and drink by himself
? Prepare food for himself
?Ability to communicate effectively
A. He needs care from his mother and brother with regards to his daily routine including showering and shaving. He can use the toilet to passport [sic] urine and stool independently. He can dress himself but needs help with some fine motor skills. He is able to eat and drink independently. He is able to communicate effectively using spoken language and some sign language.
Q. (f) Whether the patient requires day and/or night care from another person?
A. The patient does need day and night care from another person.
Q. (g) The patient has fathered a child with his wife in Pakistan; in which case please report on whether the patient has normal adult sexual urges and whether he is able to understand these and therefore control the urges; or is his body simply driven by natural urges?
A. [He] married in Pakistan about 5 years ago [Ziatoon Bibi] and fathered a child [Hamza Ali Bux] on 1.3.04[sic]. His wife and child remain in Pakistan and he has telephone contact with them. He exhibits normal sexual urges and is able to understand and control them well.
Q. (h) The consequences or effects of short term/long term denial of sexual intercourse on the patient?
A. We have not discussed the consequences or effects of short/long term denial of sexual intercourse but he tells me that he misses his wife and child.
The doctor adds a rider as follows:
"It would be very helpful for his wife to come to the UK to help with his care and physical well being and I strongly support the application for the family to be reunited."
C M G OCKELTON