DR (ECO: post-decision evidence) Morocco *  UKIAT 00038
Date of hearing: 10 January 2005
Date Determination notified: 09 February 2005
|Entry Clearance Officer, Casablanca||RESPONDENT|
"7. I can only take into account facts in existence at the date of the Respondent's decision, or which were then in reasonable contemplation.
8. By virtue of Section 85(4) and (5) of the Nationality, Immigration and Asylum Act 2002, I am constrained from taking into account facts arising after the Respondent's Decision. This is a specific exclusion for all immigration decisions as defined in section 82(1) of the same Act. It seems that Parliaments has expressly stopped the previously accepted practise of allowing adjudicators to consider matters that arose within a short period of the time of decision and could have been in reasonable contemplation of the decision maker. This constraint applies to all human rights issues, except for those under Article 3."
"19. The lack of contact from the time that they met until the time they married is most surprising. It is an almost inevitable conclusion that the marriage was not a real one and that there were other motives for the marriage and the application before the ECO.
22. Having considered all the evidence that was available to the ECO I agree with his assessment that at the time of the decision that there was no evidence that the marriage was genuine and subsisting at the appropriate standard. I am satisfied having seen the wedding photographs that they did go through a genuine marriage ceremony though."
"18. None of it was foreseeable at the time of the decision. If I could I would be satisfied that there was evidence of a continuing and subsisting relationship between the appellant and his wife."
"(4) On an appeal under section 82(1) or 83(2) against a decision an adjudicator may consider evidence about any matter which he thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(5) But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10-
(a) subsection (4) shall not apply, and
(b) the adjudicator may consider only the circumstances appertaining at the time of the decision to refuse."
This appeal was brought under the 2002 Act.
"(3) In considering-
(a) any ground mentioned in section 69, or
(b) any question relating to the appellant's rights under Article 3 of the Human Rights Convention
the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken).
(4) In considering any other ground, the appellate authority may take into account only evidence-
(a) which was available to the Secretary of State at the time when the decision appealed against was taken; or
(b) which relates to relevant facts as at that date."
"In an 'on entry' case the criterion is whether the requirements will be met on the admission of the applicant and not whether they are met at the date of decision – as a general rule at a date not later than 6 months after the decision, that being the normal period of validity of an entry clearance."
MR JUSTICE OUSELEY