England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IM/12017/2005]

		Royal Courts of Justice Strand, London, WC2A 2LL
		16th October 2007

Lord Justice Thomas:

1. This is an appeal, by permission of the Asylum and Immigration Tribunal, against a judgment of the tribunal holding that the appellant should not be admitted to the United Kingdom under rule 281 of the Immigration Rules.
2. The appellant was born on 12 August 1967. In March 2004, she married Morris Waldron Willie, who was born in December 1923 and was at the time of the marriage some 80 years old. He is a British citizen who lives in the United Kingdom.
3. Following the ceremony of marriage, the appellant applied for entry clearance into the United Kingdom under rule 281. This was refused in August 2004, on the basis that the Home Secretary was not satisfied that she had contracted a valid marriage, that she intended permanently to live in the United Kingdom, and that she would be able to be maintained and have accommodation without recourse to public funds.
4. An appeal brought by the appellant from this decision was heard by Immigration Judge Dr Majid, who gave his decision on 9 August 2005. In that hearing, he heard evidence from the husband, and in what can only be described as a remarkably brief determination he set out the submissions made, and the sole conclusion that he came to was this:

"what came over from the evidence of the husband was the fact that despite the age difference of the spouses, the marriage was vibrant, and the young wife was committed to the welfare of her husband; perhaps he is motivated by her faith."

For that reason alone the judge allowed the appeal.

5. About a year later, on 14 September 2006, Senior Immigration Judge Waumsley ordered a reconsideration before another immigration judge on the basis that Dr Majid had failed to make findings of fact or give adequate reasons. That further hearing came on before Immigration Judge Cohen in January 2007, and his decision was promulgated on 30 January 2007. He heard evidence from the husband and from someone referred to as the Reverend Graham. He found that, although the appellant could be maintained and have accommodation in the United Kingdom without recourse to public funds, the appellant had not shown there was a genuine subsisting marriage and that they intended to live as husband and wife.
6. On 16 April 2007, Senior Immigration Judge Allen gave leave to appeal to this court. He observed that, had he had the power to do so, he would have considered setting aside the decision and ordering a rehearing. It is important to record immediately that the appellant concedes the skeleton argument before the court, and has confirmed orally this morning, on behalf of the Secretary of State for the Home Department, that Judge Cohen had made an error of law in one respect, and submits the appeal should be allowed and a rehearing directed. The appellant contends that there are other errors, and the court should decide firmly in favour of this appellant that there is a valid and subsisting marriage and that she intends to live in the United Kingdom. What it seems to me is at the bottom of this submission is the fact that these proceedings has been clearly going on for some years, and obviously in the light of the age of the husband there is a serious concern that these proceedings must be determined as soon as possible.
7. It is not necessary to examine in enormous detail the hearing before Judge Cohen, and it is sufficient to say the following. The judge had before him a questionnaire answered by the appellant. This was a carefully drawn questionnaire, and the appellant's answers to it plainly did give rise to matters that called for explanation. In the judgment given by Judge Cohen in paragraphs 18 and 19, he came to the view that on the basis of the answers, they were indicative of the fact that parties were not in a genuine and subsisting relationship. There was also before the judge the evidence of the husband. He provided a statement and gave oral evidence. In his statement, he described his position as a minister of the Bethany Church of God, at the Holy Faith Temple; how he had been introduced to the appellant prior to her coming to a church conference in the United Kingdom in March 2002; how she cared for him for a substantial period of time whilst he was ill, and how she had only returned to Jamaica in November 2003; how he had married her in March 2004; he added that since his return to the United Kingdom they had maintained a contact by telephone. He also referred to a visit to Jamaica in 2005.
8. He referred in his statement, and in the documents annexed to it, to a number of telephone calls. He produced some telephone cards, and then he produced phone bills for the period April 2005 to September 2005, and April to July 2006, which showed a total of over 100 phone calls to a mobile phone number in Jamaica, which was accepted to be that of the appellant. He also produced a bundle of money transfers to show that he had remitted significant funds to her.
9. The judge listened to cross-examination of the husband, and he made the following findings in his decision at paragraph 20 and 21:

"20. There is a paucity of evidence of ongoing contact between the parties other than phone cards which have little evidential value and money transfer receipts and I find this to be further indicative of the fact the marriage is not genuine and subsisting and the parties do not intend to live permanently together as husband-and-wife".

"21. I find it further noteworthy that since the parties married in March 2004, that the sponsor has only visited the appellant on 1 occasion and I find this to be further indicative of the fact the marriage is not genuine and subsisting and the parties do not intend to live permanently together as husband-and-wife".

10. There was also before the judge the evidence of the Reverend Graham. He provided a statement. It is not clear from the determination whether he was cross-examined. His evidence was that he was a general overseer of the church, and had known the husband for about 20 years; that the appellant had been introduced to the husband prior to the conference. He saw them during 2002 and 2003 in church, and at that time he did not know of the relationship between the husband and the appellant. He had been present during the marriage and during some of the phone calls. In respect of that evidence, the judge found at paragraph 22:

"I find the evidence of the Reverend Graham to be self-serving and attach no weight to it".

11. The judge went on to find, as I have set out, that there was no valid and subsisting marriage, giving, in addition to the reasons to which I have referred, the reference to the age difference between the appellant and the husband, but finding that the husband was in a position to support the appellant, and that she would not require recourse to public funds in relation to that or in relation to housing.
12. In the appellant's careful written submissions to us, and in the brief oral argument, criticisms have been made of the findings of the judge. The principal ground has been the attack on the findings at paragraph 20 and 21, where it is said that the judge failed to have regard to the fact that there were numerous phone calls. The Secretary of State has accepted that this amounts to an error of law; it is on that basis, and that basis alone, that it is accepted that this matter should be remitted to the tribunal for a further hearing. Speaking for myself, I may not have accepted that there was necessarily an error of law. In this kind of case, one does not expect the kind of detailed analysis that is sometimes to be found. What one requires is an analysis sufficient to show that the conclusion reached by the judge is properly explained. There is always a danger in such cases, if it is too readily accepted, that there is a deficiency in reasoning, that these appeals which are only appeals on points of law and only permissible as appeals on points of law become, in effect, appeals on points of fact. But, be that as it may, we have not heard full argument on the matter in the light of the concession; and I therefore accept that there was an error in the reasoning here, which amounted to an error of law, and the consequence must be that at least the matter should be remitted.
13. It is, however, contended on behalf of the appellant that there are other errors. First of all, it is said that no reasons were given to justify the rejection of the Reverend Graham's evidence. Secondly, it is said that the judge wrongly attached weight to there being no premarriage cohabitation. It is also said that the judge was in error in making a finding that the Reverend Graham introduced him to the appellant. There is also an attack on the weight the judge attached to the age difference, to which I have already referred. It is said that the judge attached too much weight to the fact that the husband had only been to Jamaica once.
14. It is contended that, on the basis of those further matters, what this court should do is effectively to substitute for the decision of the judge that there was not a valid and subsisting marriage, a decision to the effect that there is a valid and subsisting marriage. On analysis, what counsel is effectively asking us to do is to reverse the judge's findings on the credibility that the judge plainly attached to the evidence of the husband and the Reverend Graham. One of the striking features of these long drawn out proceedings is that the way in which the matter proceeded at the hearing before Dr Majid is that he was plainly influenced, and solely influenced without giving any further reasons, by the credibility of the husband. It is plain, as I have already indicated in this case, that there are questions that do arise on the answers given by the questionnaire. It is for the appellant to decide how to deal with those issues, and the way in which the appellant decided to deal was to call the evidence of the Reverend Graham and the husband. It is for someone hearing that evidence to reach a judgment on the overall credibility. It seems to me that this court simply cannot accept as credible the evidence of the husband and of Reverend Graham. That is a matter that someone can only do who hears that evidence.
15. It seems to me, therefore, that this court cannot possibly reverse the finding made and substitute for itself a finding that this marriage is valid and subsisting. It therefore would follow, in the light of the concession made, that this matter must be remitted to the Asylum and Immigration Tribunal.
16. I would make only one further observation. This matter has been proceeding for a very long time. It is plainly a case where finality is desirable at the earliest possible time; speaking for myself, I would direct to the extent that it is possible for this court to do so, that this matter be heard by the Immigration and Appeal Tribunal as soon as possible; and if there is no such power, I would simply observe to the tribunal that the interests of justice require that to be done. For those reasons, therefore, I would for myself allow this appeal to the extent indicated, and for the reasons indicated, and order a remission to the tribunal.

Lord Justice Longmore:

17. I agree.

Lord Justice May:

18. I agree that this appeal should be allowed to the extent of remitting the matter for a further hearing. I also agree emphatically that it is highly desirable that the rehearing takes place as soon as possible. The judge analysed interview evidence of the appellant with some care. When Mr Coleman suggests there are errors in this analysis, concluding that it lacked credibility, he dealt with the evidence of telephone contact very briefly, and dismissed the evidence of Reverend Graham as self-serving and of no weight. He clearly considered that the oral evidence called before him, including that of the husband's sponsor, was insufficient and insufficiently credible to overcome the evidential difficulties which he saw as arising from the appellant's interview evidence. The Secretary of State concedes that there was an error of law in failing adequately to deal with the evidence of Reverend Graham, and perhaps of the telephone calls. That concession, I think, requires this court to allow the appeal, and at least remit the matter for a further hearing. However, I am not persuaded that this court can go further, as we are invited to do, and decide the appeal in favour of the appellant. We cannot do this because, as my Lord has said, any such decision would depend on this court making a judgment of credibility in favour of witnesses who we have not heard given evidence as the Immigration Judge did. As I have said, I do not think that this court is in a position to do that.

Order: Application granted