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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI- 2022-003282 First-tier Tribunal No: HU /02871/2021 |
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THE IMMIGRATION ACTS
On the 09 July 2023
Before
UPPER TRIBUNAL JUDGE LINDSLEY
Between
FH
(ANONYMITY ORDER MADE)
Appellant
and
ENTRY CLEARANCE OFFICER
Respondent
Representation :
For the Appellant: Ms A Nizami, of Counsel, instructed by Wilsons Solicitors LLP
For the Respondent: Mr A Basra, Senior Home Office Presenting Officer
Heard at Field House on 4 July 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.
No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant and her husband, the sponsor or other family members. Failure to comply with this order could amount to a contempt of court .
DECISION AND REASONS
Introduction
1. The appellant is a citizen of Sudan born in 1996 who applies to come to the UK as the wife of Mr D, a person recognised as a refugee in the UK on 31 st July 2019 and granted five years leave to remain. She made her application on 13 th November 2020 and it was refused on 21 st March 2021. Her appeal against the decision was dismissed by First-tier Tribunal Judge JG Raymond in a determination promulgated on the 11 th May 2022.
2. Permission to appeal was granted, and a panel of Upper Tribunal Judge Lindsley and Deputy Upper Tribunal Judge Cotton found that the First-tier Tribunal had erred in law for the reasons set out in our decision which is appended to this decision as Annex A.
3. At paragraphs 32-33 of the decision the First-tier Tribunal Judge found that the delay in applying point raised by the respondent in relation to the credibility of the application, given issues with Legal Aid and the Covid-19 pandemic, was not one which should have been taken against the appellant. This finding not challenged by either party and so has been preserved
4. The matter comes back before me pursuant to a transfer order to remake the appeal. I noted that the sponsor is a vulnerable witness and did my best to ensure that the hearing took place in line with the guidance from his clinical psychologist, Dr Walsh of the Traumatic Stress Clinic, as set out in her email of the 30 th June 2023. In the event the hearing was very short, consisting only of brief submissions. Ms Nizami decided that it was not necessary for the sponsor to give oral evidence, Mr Basra having agreed that he would not take any point against the appellant if this was the case, and given that it had not been possible for the Upper Tribunal to locate a Fur interpreter, the appellant's first language being Fur, and there therefore being a possibility of misunderstanding when evidence was taken through an Arabic interpreter. Although Ms Nizami initially asked that the hearing be in camera having taken instructions from the sponsor she agreed that the two work shadowing students present could be allowed to remain in the hearing room.
Evidence & Submissions - Remaking
5. In short summary, from his three written statements in support of this appeal the evidence of Mr D, the sponsor, is as follows.
6. The sponsor was granted refugee status on 31 st July 2019. He wanted to apply for the appellant to join him immediately but there were delays caused by his initial solicitor's inaction, by having to apply for exceptional cases legal aid funding with his second solicitor, and then the Covid-19 pandemic. He says that the screening interview records stating that he did not have a wife came about as a result of an interpreting mistake as the interpreter was not from Darfur and was on the telephone at the time of this initial interview. He believes that the interpreter assumed he was not married as he said he had no children.
7. The sponsor says that the appellant lived, until she was recently forced to leave Sudan, in Kabkabiya in Sudan with her parents and three sisters. She is his maternal aunt's daughter. He started a relationship with the appellant in 2013. They were married in the mosque in the city of Kabkabiya on 15 th February 2015 in a proxy ceremony that they did not attend themselves but which was attended by family representatives who were elderly distant relatives. There were no photographs taken of the wedding or afterwards as no one had a camera. The marriage certificate is dated August 2020 because the first one was destroyed in an attack on the appellant's family home, and so this is a replacement. The sponsor lived in the IDP camp in the same city with the appellant after the wedding. They lived together for three months until they were forced to separate due to his fear of persecution. It has been very painful being separated for both of them. He was very afraid of the appellant continuing to live in a racist environment in Sudan where she was in danger of attack, kidnap and rape. Whilst living in the camp the appellant worked on agricultural land during harvest and brick-making the rest of the year. He was aware that the appellant was not coping mentally very well living in the camp without him. Whilst she was in the refugee camp the sponsor tried to speak to the appellant everyday but the telephone network was often of poor strength which made this difficult, so often they sent short text messages and had missed calls. They do not write each other long messages due to their lack of education. It is clear to him from these calls that the appellant is desperate to be reunited. The refusal of 26 th March 2021 made the sponsor very upset, anxious and depressed. He often feels very lethargic and does not sleep well, and becomes panicky. He knows the appellant also became physically and mentally unwell after the entry clearance was refused. The appellant became even more vulnerable after her father passed away in September 2021 as she has no male protection from rape and kidnap.
8. The appellant left the IDP camp in Kabkabiya, in the north of Dafur, Sudan in May 2023 travelling first to Port Sudan due to the recent conflict in Sudan. She had been experiencing shelling around where she was living, and was extremely frightened, and had difficulties obtaining food and water and so was at risk from dying from stray bullets, rockets and starvation. Phone contact was difficult as the signal often cut out and there was a lot of noise when he got through. The sponsor, was very worried about his appellant at this time, and during her dangerous journey out of Sudan. He refers to the phone records showing many attempted and actual calls between the two of them. The appellant arrived in Ethiopia in June 2023. She has permission to remain there until 8 th July 2023 after which she is expected to leave, and further he has no money to support her long term in a hotel in Ethiopia. The appellant has no support in Ethiopia and cannot remain there long term. He has been granted a visa to visit the appellant by the Ethiopian authorities valid for three months after this hearing date, and intends to visit her as he is desperate to see her. At the hearing the sponsor produced a ticket for him to travel to Ethiopia on 7 th July 2023 with a return date of 11 th September 2023.
9. The appellant's evidence in her two statements is that she grew up with the sponsor in the village of Shoba in Sudan. They are maternal cousins. She started a relationship with him in 2013, and their mothers decided that they should have an arranged marriage. On 15 th February 2015 representatives from her family and that of her sponsor attended a mosque in Kabkabiya for a traditional ceremony. There were no photographs taken of the actual wedding or of any celebration afterwards as no one had a camera. The relatives returned to the IDP camp and announced that she and her sponsor were married. The sponsor and she were very happy together. She has not seen the sponsor since he left the place where they were living in 2015. She understood he had to leave Sudan on 28 th March 2017. Since the appellant came to the UK they have tried to talk every day, but sometimes they cannot speak because of phone network issues or other problems in Sudan. This explains the lot of missed calls and short communications in the phone records. She and the sponsor lack formal education and so find it difficult to write complex sentences in any case. She and her family are terrorised by the Janjaweed and rebel groups who often break into their home. She feels very anxious and depressed being separated from the sponsor. When the visa application was refused she became ill as she felt so low. She could not eat properly and lost a lot of weight, and was also concerned about the sponsor who was also suffering mentally and physically. Her father died on 22 nd September 2021, and this has made her position in Sudan even more vulnerable as she is part of an all- female household as she has no brothers.
10. The Traumatic Stress Clinic report of Dr Eileen Walsh is a report by the sponsor's treating therapist, and confirms the sponsor is being treated for PTSD, and at the time of writing the report had had approximately 30 weekly trauma-focused sessions with her. He is also assessed as suffering from major depressive disorder. She records the Traumatic Stress Clinic having made attempts to obtain help from the Red Cross with family reunion with his wife for the appellant from September 2019 to March 2020, and has provided copies of the relevant emails evidencing this to his current solicitors. The history given to her by the sponsor included the fact that he was married to the appellant. The sponsor's mental health has deteriorated since the appellant's visa application was refused.
11. Mr Basra made submissions for the respondent. He submitted that the case turned on the Immigration Rule at paragraph 352A(iii): whether the relationship/marriage existed before the sponsor fled his former country of habitual residence; and 352A (v) whether the appellant and sponsor intend to live together permanently in a genuine and subsisting relationship.
12. Mr Basra submitted that the respondent did not dispute that the marriage certificate which showed that the marriage had taken place on 2 nd February 2015 was genuine or the description of the traditional marriage. The evidence of the screening interview (which recorded the sponsor as saying he was not married) had to be put in the context of the fact that the sponsor's solicitors had written to correct the wrong account of his not having a wife prior to the main asylum interview, and the fact that the sponsor had provided details of his wife at his main asylum interview. As the undisputed evidence of the appellant and sponsor was that the appellant had left Sudan in March 2017 he accepted for the respondent that the sponsor had left Sudan after his marriage to the appellant, and that she therefore could show that the marriage existed before the sponsor fled his former country of habitual residence, and that the requirements of paragraph 352A(iii) were therefore met.
13. Mr Basra then turned to the issue of whether there was a genuine and subsisting relationship between the appellant and sponsor, and whether they intended to live together permanently. He said that he accepted the witness evidence, photographs and phone records sufficed to show a genuine and subsisting relationship with intention to live together.
14. Ms Nizami did not need to make submissions as Mr Basra had effectively conceded the appeal by making submissions that the requirements of the refugee family reunion Immigration Rules were met. She simply asked for a quickly promulgated decision in light of the vulnerability of both sponsor and appellant, and the fact that the sponsor was travelling to Ethiopia for two months and could potentially assist the appellant in obtaining entry clearance whilst he was with her. I informed the parties that I would be allowing the appeal and agreed to write my decision promptly.
Conclusions - Remaking
15. As Mr Basra identified the key issues in the appeal when looked at through the lens of the relevant refugee family reunion Immigration Rule at paragraph 352A are: firstly whether the relationship/marriage existed before the sponsor fled his former country of habitual residence; and secondly whether the appellant and sponsor intend to live together permanently in a genuine and subsisting relationship.
16. The respondent now accepts that the appellant and sponsor married in February 2015 as set out in their marriage certificate, and that the appellant is therefore the sponsor's pre-flight wife, and that the evidence shows that the appellant and sponsor intend to live together permanently in a genuine and subsisting relationship. I also find that this is the case. I do not need to give extensive reasons given Mr Basra's position for the respondent. As Mr Basra has identified the error stating the appellant was not married in the screening interview record was corrected at a very early stage, prior to his full asylum interview and in that interview, and there is detailed witness evidence going to the traditional proxy marriage between the appellant and sponsor having taken place in February 2015 which is supported by a marriage certificate. This evidence suffices to show on the balance of probabilities that the sponsor was married to the appellant prior to fleeing from Sudan in 2017.
17. There is also evidence from the sponsor's clinical psychologist that the Traumatic Stress Clinic have been trying to assist the sponsor to reunite with his wife, the appellant, since 2019, and of the psychological impact separation has had on the sponsor due to his love, worry and concern for the appellant who has been living in very dangerous circumstances since he was force to flee Sudan. This evidence goes both to the veracity of the sponsor's claim to have been married prior to fleeing Sudan, and also to the genuine nature of the relationship and the desire of the couple to be live together permanently as husband and wife. This evidence is now added to by documents showing that the appellant has fled Sudan in the context of the recent escalation of conflict in that country, and entered Ethiopia. There is evidence that the appellant is now in Ethiopia in the form of a copy of the stamp in her passport, and of the sponsor intending to travel to be with her in the form of evidence of his having obtained a visa to travel to Ethiopia and having bought an air ticket. There is also extensive evidence of messaging and attempted and actual phone contact between the couple. When considering in the round I find that the totality of the evidence shows that the marriage is genuine and subsisting, and that the appellant and sponsor intend to live together permanently as husband and wife.
18. The appellant is entitled to succeed in her human rights appeal because refusal of entry clearance to come to the UK as the pre-flight wife of a person with refugee status is a disproportionate interference with her right to respect for family life with the sponsor as protected by Article 8 ECHR. There is no public interest in refusal of entry clearance as she can show compliance with the relevant Immigration Rule at paragraph 352A; and the decision to refuse entry clearance is further disproportionate as the UK is the only country in which the appellant and sponsor can have their family life in light of his being a Sudanese citizen who has been granted refugee status by the UK authorities and the appellant also being a Sudanese citizen.
Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. The decision of the First-tier Tribunal was set aside.
3. I remake the appeal by allowing it on Article 8 ECHR human rights grounds.
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant, sponsor or their families. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so in order to avoid a likelihood of serious harm arising to the appellant, the sponsor and their families as a result of the contents of the sponsor's protection claim.
Fiona Lindsley
Judge of the Upper Tribunal
Immigration and Asylum Chamber
4 th July 2023
Annex A: Error of Law Decision
DECISION AND REASONS
Introduction
Submissions - Error of Law
Conclusions - Error of Law
17. The issues causing the respondent to doubt that the appellant and sponsor were married at the time he was recognised as a refugee: delay in applying for entry clearance as the marriage was said to have taken place in 2015, refugee status and leave to remain was granted to the sponsor in July 2019 and the application was only made in November 2020; the marriage certificate being dated 2020 when the marriage was said to have taken place in 2015, and there being no photographs of the wedding and a lack of witnesses; the fact that the appellant said he was single at his initial asylum screening interview.
18. Lack of evidence of the appellant and sponsor as a couple: no joint photographs and a lack of two way chat in the WhatsApp conversations
Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. We set aside the decision of the First-tier Tribunal
3. We adjourn the remaking hearing.
Directions:
1. Any further evidence from either party must be filed with the Upper Tribunal and served on the other party 10 days prior to the date of the remaking hearing.
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) we make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant, sponsor or their families. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. We do so in order to avoid a likelihood of serious harm arising to the appellant, the sponsor and their families as a result of the contents of the sponsor's protection claim.
Fiona Lindsley
Judge of the Upper Tribunal
Immigration and Asylum Chamber
4 th April 2023