GA ("Subsisting" marriage) Ghana *  UKAIT 00046
Date of hearing: 11 April 2006
Date Determination notified: 11 May 2006
|Secretary of State for the Home Department||RESPONDENT|
The requirement in para 281 that a marriage be "subsisting" is not limited to considering whether there has been a valid marriage which formally continues. The word requires an assessment of the current relationship between the parties and a decision as to whether in the broadest sense it comprises a marriage properly described as "subsisting".
(i) the applicant is married to a person present and settled in the UK; and
(iii) each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting; and
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds;
Background to the Appeal
40. ….. I move on to consider the financial situation the Appellant would find herself in if she were living with the Sponsor in the context of his present financial circumstances. It is unambiguously clear that the Appellant's husband requires all the money that he presently receives to meet his current level of expenditure. He has confirmed that he has no savings and the evidence indicates that he finds it necessary to withdraw the whole of his benefits each time a benefit payment is received into his post office account.
43. Considering all this together I find that there are no spare or surplus funds available to the Appellant's husband to meet the additional cost that would arise from providing for his wife should she join him in the United Kingdom. It is said, of course, that his wife could seek employment. However, the difficulty with this is that her language is Twi, she has been unable to find employment in Ghana, and there is no evidence at all that she would be able to find work upon her arrival in United Kingdom. Put another way, she has not demonstrated, on a balance of probabilities, that she would be able to find work in order to contribute towards the household income.
45. The marriage was not, I find, subsisting during the two decades the Appellant and the Sponsor were apart and the Appellant has not demonstrated, again on a balance of probabilities, that the marriage has once again become a subsisting one because she has accepted an invitation from the Sponsor to come to care for him as his health continues to deteriorate.
46. Even if I were wrong about that, this appeal would still fail since the Appellant has not demonstrated, on a balance of probabilities, that she and the Sponsor would be able to maintain themselves adequately without further recourse to public funds. There is no evidence that the Appellant would be able to find work. Indeed I find on the balance of probabilities that she would not be able to do so, at least not for the foreseeable future.
47. In view of these findings of fact it is clear that the decision of the Entry Clearance Officer was the correct one and that this appeal cannot succeed under the Immigration Rules…..
49. [In relation to Article 8] I have taken careful account of the health difficulties suffered by the Sponsor. I have also noted that the appeal has been argued on the basis that if the Appellant were allowed to join her husband in United Kingdom she could help with his care and thereby lessen the burden now accepted by Social Services. I have also taken account of the fact that the Appellant's husband cannot, realistically, travel to Ghana to visit the Appellant and her relatives. Even if I were wrong to find, as I do, that the marriage ceased to be a subsisting one many years ago and even if the correct view were that by virtue of being married family life continues to exist between them, these matters do not, I find, amount to exceptionality. The long period of separation arose not because of any decisions in relation to the Immigration Rules but because of the decision by the Sponsor to leave, and travel to Germany and, his asylum appeal having failed there, to enter the United Kingdom unlawfully rather than return home to Ghana.
Meaning of the words "and the marriage is subsisting"
27. Further, we took the view that the Rule is written as it is for the reason that the first question to be answered is whether each of the parties to the marriage intends to live permanently with the other. The second question, that of whether the marriage is subsisting, is, in our view, by way of a double-check in relation to the legal status of the relationship, that is to say its framework, as opposed to the nature and quality of the substance of the relationship. For our part we find that it is not arguable that the Immigration Judge can be said to have erred in considering that aspect before coming to the words that follow the word 'and' in 352A (iv) to which Mr Johnson drew attention, in the second aspect of sub-paragraph (iv) of 352A.
28. We find that there is no support, whether in any jurisprudence, or in the content of the Rule itself, for the meaning of the word 'subsists' that Mr Johnson contends for. Nor is there support for the test that he suggests in order to show that a marriage subsists. It is difficult to conceive how such a test could operate. As Ms Hooper put it, would there be a requirement to show on balance that the parties were 'desperately in love', or would 'just putting up with one another' do? It is also difficult, we consider, to conceive what the purpose of such a test would be, as it would be bound, in our view, to cover an examination of many if not all of the same or similar matters to those considered in the first part of the sub-paragraph. It would be a double hurdle in effect, contained in Rules intended to promote family reunion.
29. We note that the Concise Oxford Dictionary, ninth edition, at page 1389 defines subsist as: 'keep oneself alive; be kept alive; remain in being; exist; be attributable to; provide sustenance for.'
30. Thus, the ordinary meaning of the word includes the meaning 'exist'. Mr Johnson sought to argue that it meant more than this. Again, we find that there is no support for his argument to be found in the ordinary meaning of the word.
31. We find that once having conducted the enquiry into the intention of the parties so far as their commitment to the relationship is concerned, the second part of the Rule requires enquiry into the question whether the marriage continues to exist in law. This, we suggest, completes the enquiry into the relationship, so that it is shown to have both the genuine substance of a committed relationship, with the intention that it should continue and be demonstrated through cohabitation, and the legal framework required to enable it to exist, or subsist, in law.
"the applicant is the unmarried partner of a person present and settled in United Kingdom or who is on the same occasion being admitted for settlement and the parties have been living together in a relationship akin to marriage which has subsisted for two years or more;"
For the purpose of these Rules, a person is not to be regarded as having (or potentially having) recourse to public funds merely because he is (or will be) reliant in whole or in part on public funds provided to his Sponsor, unless as a result of his being in United Kingdom the Sponsor is (or would be) entitled to increased or additional funds".
"If the applicant or sponsor have skills or qualifications which offer a reasonable chance of obtaining employment they should be viewed as sufficient to satisfy the maintenance requirement."
"The difficulty with this is that her language is Twi, she has been unable to find employment in Ghana, and there is no evidence at all that she would be able to find work upon her arrival in the UK. Put another way, she has not demonstrated, on the balance of probabilities that she would be able to find work in order to contribute towards the household income."
Subsistence of the Marriage
Signed Dated 12 April 2006
S L Batiste
Senior Immigration Judge