United Kingdom Asylum and Immigration Tribunal

IN THE IMMIGRATION APPEAL TRIBUNAL

[2003] UKIAT 00008 S (Yemen)

Heard: 07.04.2003

Typed: 08.04.2003

Sent out: 04.06.2003

IMMIGRATION AND ASYLUM ACTS 1971-99

Before:

John Freeman (chairman)

and

Toby Davey (legal member)

Between:

(appellant)

and:

(claimant) DECISION ON APPEAL

Mr J Morris for the entry clearance officer

The sponsor (Mr Razaz Mohd. Motaher) for the claimant

This is an appeal from a decision of an adjudicator (Mr AL McGeachy), allowing, after a hearing, an appeal from refusal of a family visit visa. Leave was given on the basis of grounds complaining that the adjudicator had directed further investigations which suggested that he had not been so satisfied as he said he was with the surrounding circumstances; and that he had not given enough weight to the six years during which the sponsor and the claimant had not met.

1. There was however a more fundamental point taken in the grant of leave. As the chairman noted, the adjudicator had found against the claimant on the family basis of the application. The sponsor regards her as his wife, having apparently gone through a ceremony of marriage with her in the Yemen during his last visit there in 1996. This may well have been effective by the law of its place of celebration; and the adjudicator found the sponsor believed it was so. However, by well-known principles the essential, as opposed to formal validity of the marriage depends on its being recognized by the law of both parties' domicile.
2. The claimant is clearly domiciled in the Yemen, whose law no doubt follows the Shari'a in permitting polygamous marriages. The adjudicator however found that the sponsor is domiciled in this country. That was clearly the only possible finding: he has lived here for the last 30 years and took British citizenship in 1993; before us he expressed his intention of living here indefinitely, as he has every right to do.
3. The difficulty with that is that in 1985 the sponsor married a British citizen, and their marriage had not been dissolved by the decree of a competent court by the time he went through the ceremony with the claimant. That may now have happened: he produced to us a statement of the arrangements for the children of his marriage. So far as the law of his domicile is concerned, however, whatever ceremony he went through with the claimant was bigamous, and is void.
4. The adjudicator was however clearly right in describing this point as "a fundamental defect in this appeal". That is because the "family visitors" given a right of appeal by § 60.5 of the 1999 Act are defined, under the powers given in § 60.10, in the Immigration Appeals (Family Visitor) (No. 2) Regulations 2000 regulation 2.2a as including a "spouse", which can only mean a lawful wife or husband. It is not clear to us why the adjudicator nevertheless considered and allowed the appeal on its merits.
5. There is a further provision at regulation 2.2e, extending the definition of family visitors to people who have lived with their sponsor as man and wife for two of the last three years before applying; but, as the adjudicator also noted, this sponsor agrees he had not seen the claimant for the last six. (The adjudicator accepted his explanation that he had been awaiting the result of a libel action against a newspaper in this country).
6. There was another possible basis on which the claimant might have qualified as a family visitor to the sponsor: he says they are first cousins (see regulation 2.2a again), through his father Mohd. Motaher Abdullah, own brother to her mother Sa'ada Motaher Abdullah. When those names and double patronymics are set out in full, the relationship, if those facts are correct, becomes obvious; but no-one ever pointed it out to the entry clearance officer. The claimant did give her mother's name in her application form as "Sada Motaher"; but she named the sponsor only as "Razaz Mohamed", so there was nothing at all to put the entry clearance officer on inquiry that there might be a relationship of that kind, which he might have wished to investigate to see if it formed a basis for a family visit application within § 60.5.
7. There is also a possibility that the claimant's father was a British citizen, so that she might be able to come here under a certificate of entitlement, rather than relying on the present proceedings at all. As the adjudicator pointed out, that needed a quite separate application. We do not see that there was any basis in this claimant's present application for her to be considered as a family visitor, or for any appeal to be entertained by an adjudicator against refusal of that.
8. In case we should be wrong about that, we shall briefly give our views on the points taken in the grounds. We think the adjudicator was entitled by a short head, bizarre as the history may seem, to accept that the only reason why the sponsor had remained apart from the claimant for the last six years was the litigation he had been pursuing against the newspaper.
9. On the other hand, the directions the adjudicator gave at § 11 (for the entry clearance officer to assess the sponsor's claims to own property in the Yemen, and his domestic circumstances, before issuing the visa for which the claimant had applied) cannot in our view be justified under paragraph 21.5a of schedule 4 to the 1999 Act as being for giving effect to his decision. They are rather for making sure that it is not to have any practical effect until the entry clearance officer is satisfied on points which, so far as they may be relevant at all, must have been equally relevant to the question of whether the appeal should be allowed or dismissed. This point on its own would lead to a conclusion that the adjudicator was not satisfied as he said (and no doubt thought he was) of the genuineness of the application, and to the appeal being allowed on that basis.
10. Since the sponsor was not represented before us, we made some suggestions as to how he might try to deal with the situation, if we were to allow the appeal, which we now repeat. He could do any or all of the following:

a) establish that his British wife has got a decree absolute of divorce in this country, and either go through a fresh ceremony with the claimant, who could then re-apply on the basis of marriage; or apply to visit or settle with him here as his fiancée; or

b) provide the claimant with suitable evidence of their cousinhood for her to apply on that basis; or

c) suggest she applies for a certificate of entitlement.

The sponsor told us the British mission in the Yemen had now been closed, which might present some practical problems; but at our request Mr Morris supplied him with details of alternative arrangements for getting entry clearance from there.


Appeal allowed

John Freeman