United Kingdom Asylum and Immigration Tribunal

 


GA ("Subsisting" marriage) Ghana * [2006] UKAIT 00046

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 11 April 2006

Date Determination notified: 11 May 2006

Before
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Senior Immigration Judge Batiste Senior Immigration Judge Grubb
Between

GA	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr A Voliere of Messrs Andrews Solicitors For the Respondent: Mr P Deller, Home Office Presenting Officer DETERMINATION AND REASONS
ASYLUM AND IMMIGRATION TRIBUNAL

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".

1. The Appellant, a citizen of Ghana, seeks reconsideration of the determination of Mr P D Southern, dismissing her appeal against the decision of the Respondent on 23 November 2004 to refuse entry clearance under paragraph 281 of HC 395 as the spouse of a person present and settled in the UK.
2. The following sub-paragraphs of paragraph 281 are relevant to this appeal.

(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

3. The Immigration Judge accepted that the Appellant and the Sponsor were married in 1982 and lived together in Ghana for 2 years between 1982 and 1984, and they had 2 children together, both of whom are now adults and live in Ghana. He also accepted the medical evidence of the Sponsor's ill-health. However on the basis of extensive inconsistencies and unreliability in the evidence, he did not accept that they were together after 1984. He noted material inconsistencies concerning the alleged remittances by the Sponsor to Ghana and concluded that such as were sent to the Appellant in her own name in 2000 were intended not just for her but also the children. The evidence as a whole did not amount to regular support for her over the years, and the resumption of payments to her in her own name in 2005 had to do with this application for entry clearance. His material conclusions are as follows:

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.

4. The grounds submitted on behalf of the Appellant were somewhat rambling and repetitious, and the explanation for this became apparent to us when Mr Voliere made his 2 hour opening submissions. In essence there is no challenge to the Immigration Judge's rejection of the Article 8 appeal. The challenge relates to the appeal under the Immigration Rules only. Mr Voliere's submissions are that the Immigration Judge made material errors of law in his understanding of what was required to satisfy the maintenance requirements of Rule 281 (v); in what is meant in Rule 281 (iii) by a "subsisting" marriage; and in the adverse credibility findings that underpinned his conclusions.

Meaning of the words "and the marriage is subsisting"

5. Most of the issues raised are specific to this appeal, but one matter arises of wider significance, concerning the proper construction of the words in paragraph 281 (iii) "and the marriage is subsisting" and we shall deal with this first. This determination is starred for our assessment of this issue.
6. The Immigration Judge concluded in paragraph [45] of his determination that the marriage in this appeal was not subsisting during the two decades the parties were apart and did not become a subsisting one again because the Appellant accepted an invitation from the Sponsor to come and care for him as his health continued to deteriorate. In reaching this conclusion he plainly assessed the relationship between the parties to the marriage rather than the more limited approach of whether the marriage entered into by the parties in 1982 had subsequently not been dissolved. The sustainability of this approach was called into question by a reported decision of the Tribunal promulgated on 13 December 2005, some 2 weeks after the Immigration Judge's determination itself was promulgated, so he could not have been aware of it. The decision is BK and Others (Spouses: Marriage – meaning of "subsisting") Turkey [2005] UKAIT 00174. The relevant passages are as follows.

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.

7. It will first be noted that that the Tribunal in BK (Turkey) was concerned with paragraph 352A of HC 395. This deals with the requirements to be met by a person seeking leave to enter or remain in United Kingdom as the spouse of a refugee. However sub-paragraph (iv) of that paragraph is expressed in identical terms to paragraph 281 (iii) and like considerations must apply to its construction as they must to other paragraphs in the Rules expressed in the same terms.
8. The Tribunal in BK (Turkey) concluded that the question of whether the marriage is subsisting is 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. There are however serious problems with this interpretation.
9. The first is that this construction does not reflect the Rule as a whole. Sub-paragraphs (i) of both 281 and 352A require, as a starting point that the applicant "is married" to a person who is either present and settled in the UK or is granted asylum. That is expressed in the present tense. It is not a statement of historic fact that requires a separate double-check as to the current legal status of the relationship. If there is no legally valid marriage at the time of the decision, then the application never gets off the ground by virtue of sub-paragraph (i).
10. Moreover, if the BK (Turkey) interpretation is correct, and given the terms of sub-paragraph (i), then the words "and the marriage is subsisting" would be entirely redundant to the operation of the Rule as a whole. If one starts with the reasonable presumption that the draftsman of the Rules did not intend meaningless repetition, then the question arises as to whether there is some other material factor that requires addressing in the context of a marriage application that is not covered elsewhere. Again an analysis of the Rule as a whole shows that there is. Just as we have said that sub-paragraph (i) requires there to be a current legally valid marriage, so the remainder of sub-paragraphs 281 (iii) and 352A (iv) require that "each of the parties intends to live permanently with the other as his or her spouse". That goes to the substance of the relationship rather than the form, and is looking at the future of that relationship from the perspective of the present intentions of the parties. What is manifestly missing between the current existence of a legally valid marriage and the view of the intentions of the parties for the future is an assessment of the nature of the current relationship between the parties and whether in the broadest sense it comprises a subsisting marriage. That in our judgement is the correct interpretation. Sub-paragraphs (i) in each Rule relate to the legal formalities. Both parts of sub-paragraphs (iii) and (iv), in each respectively, relate to the assessment of distinct aspects of the substance of the relationship.
11. We gain support in this conclusion from paragraph 295A(i)(a) of the Rules, which deals with the requirements for leave to enter the United Kingdom with a view to settlement as the unmarried partner of a person present and settled in United Kingdom. This requires that

"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;"

12. Here we see the use of the word "subsisted" in a context that plainly relates to the substance of a relationship rather than to its legal formality. The context is a little different but this formulation provides illumination as to the meaning of the draftsman of the Rules.
13. The Tribunal in BK (Turkey) then identified some definitions of the word "subsist" in the Concise Oxford Dictionary. However, with respect, we do not consider that these definitions add anything material to the issue before us. That issue is not about what "subsist" means, but is about what is or is not subsisting. In other words, whether the word "subsist" means "exist" or "remain in being" is neutral as to whether we must assess the formal legal validity of the marriage or the substantive relationship.
14. The Tribunal in BK (Turkey) in paragraph [28] draws attention to the difficulties for Immigration Judges in assessing the minds of individual appellants. It is indeed a difficult problem but it is one with which we all have to grapple regularly and is not a reason for ducking the legitimate task set for us. An Immigration Judge, when assessing the subsistence of a marriage will plainly have to bear in mind the cultural context and the wide differences that exist between individual lifestyles, whether by choice, or by circumstances, or by economic necessity. He will also be able to put the claim into the context of the history of the relationship and to assess whether and to what extent this illuminates the nature of the parties' present relationship and future intentions.
15. Finally we should record that neither Mr Voliere nor Mr Deller sought to support the BK (Turkey) analysis
16. Thus we conclude that the assessment in BK (Turkey) of what is meant by the words "and the marriage is subsisting" is mistaken and should not be followed.
17. We then turn to the issues specific to this appeal, which relate to maintenance and the subsistence of the marriage, as well as to overlapping issues on credibility.

Maintenance

18. With regard to maintenance, it was submitted by Mr Voliere in his grounds and oral submissions that both the Respondent and the Immigration Judge erred in their understanding of paragraph 281 (v), by misdirecting themselves to whether the arrival of the Appellant would require "further" recourse to public funds, whereas the scope of the maintenance requirement was limited to there being "additional" recourse.
19. The reality is that the scope of the maintenance requirements relating to recourse to public funds under paragraph 281 and in other similar formulations in the Rules is specified in Rule 6A in the following terms.

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".

20. We can see no material error of law by the Immigration Judge arising from this submission by Mr Voliere. It is true that in his summary in paragraph 46, the Immigration Judge used the words "further recourse to public funds" rather than entitlement to "increased or additional funds". However when one looks at his detailed analysis, particularly in paragraphs [39]-[43], it is plain that he correctly identified and applied the appropriate law. After painstaking consideration of the evidence, including the Sponsor's income and expenditure, he found that the Sponsor was wholly dependent on public funds; he was not satisfied that any material sums were sent by the Sponsor to Ghana to the Appellant, and accordingly there would be no saving implied in her coming to the UK; the Sponsor had difficulty meeting his bills from his income, even without the presence of the Appellant; and there were no surplus funds. On these established facts, the arrival of the Appellant would inevitably result in increased or additional recourse to public funds as the Immigration Judge sustainably held.
21. The remaining challenges by Mr Voliere to the Immigration Judge's assessment of the maintenance issue amount in reality to nothing more than disagreement with his findings of fact.
22. In part they relate to his challenge to the Immigration Judge's adverse credibility findings that the Appellant had failed to establish the payment of remittances to her by the Sponsor on any sustained or regular basis in Ghana. As these are relevant also to the question of the subsistence of the marriage, we shall deal with them in that context later. We would record here simply that we have rejected these submissions.
23. The remaining submissions concerning maintenance relate to the Immigration Judge's finding that the Appellant would be unable to find employment. Mr Voliere argued that the Immigration Judge should have had regard to the Respondent's "guidance notes" to the effect that

"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."

24. The Immigration Judge reached the following conclusion in paragraph [43] concerning the Appellant's employment prospects in the UK.

"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."

25. Mr Voliere argued that the Appellant had domestic skills as a cleaner and had worked as a market trader in Ghana and this should be regarded as sufficient to meet the requirements of the guidance notes. We consider that the Immigration Judge's assessment was fully open to him on the evidence. The burden of proof is upon the Appellant to the balance of probabilities. If she could speak English it was for her to produce evidence of it, as well as evidence of any other relevant skills she might have. She did not do so. Moreover the so-called skills identified by Mr Voliere are in reality no more than limited experience in unskilled work that could not offer any reasonable chance of her obtaining employment in the UK. Additionally, we observe from the evidence, including the medical evidence relating to the Sponsor, that the Appellant would on coming to the UK undertake the care of the Sponsor. That would limit the possibility of her undertaking employment, even if she could find any.
26. Thus we conclude that the Immigration Judge's finding that the Appellant had failed to satisfy the requirements of Rule 281 (v) as to maintenance is sound and sustainable. As the Appellant has to satisfy each and every requirement of the relevant Rule, her appeal under the Rules was bound to fail on this basis alone.

Subsistence of the Marriage

27. Mr Voliere's challenge over the Immigration Judge's rejection of the subsistence of the marriage essentially concerns the adverse credibility findings, and these as we have indicated overlap to some extent with the maintenance issue. We shall deal with Mr Voliere's submissions concerning all these outstanding issues now together.
28. First however we would record our concern at the manner of Mr Voliere's submissions to us. We expect advocates to base their submissions upon the evidence, and when asked to be able to identify the evidential basis for those submissions. Mr Voliere came without any contemporaneous notes from the hearing before the Immigration Judge. We do not know if he actually made any. On several occasions when we asked him to identify the evidential basis for a submission he said that the Sponsor had given oral evidence to that effect. He then described in detail what the Sponsor had allegedly said. However his account was not reflected in the Immigration Judge's record of proceedings, nor in the HOPO's note, which Mr Deller checked for us. We do not, therefore, know upon what basis Mr Voliere was able to recall these matters. We deprecate it.
29. An example of this (but not the only one) arose in his primary attack upon the Immigration Judge's adverse credibility findings, which related to his assessment of the alleged remittances sent by the Sponsor to the Appellant in Ghana. This matter is of relevance to the issues both of maintenance and the subsistence of the marriage. Mr Voliere had submitted in his bundle to the Immigration Judge a number of money transfer receipts from the Sponsor to persons in Ghana. He provided no summary or analysis of them. The Immigration Judge plainly went to a great deal of trouble producing a schedule of the transfers so that he could make sense of them. In that he was compelled by his diligence to do Mr Voliere's work for him. The schedule demonstrated that in 2000 there were 8 transfers to the Appellant in her married name. From 2000 until February 2005 there were no transfers addressed to the Appellant. However in this period there were 33 transfers addressed to Madam Akosua Konadu and one to Joseph Kwarbenc. Then in 2005 transfers resumed to the Appellant. The Immigration Judge noted at paragraph [38] that Georgina Konadu was the Appellant's maiden name according to her marriage certificate. However she never appears to have used the name Akosua. The Immigration Judge also noted that in the Appellant's visa application form she gave her mother's first name as Akosua, though her surname was given as Pokuaah, not Konadu. In all, the Immigration Judge was given no satisfactory explanation as to why some payments were made for 2000 to the Appellant and then there was a gap of a number of years when payments were made possibly to her mother, and then in 2005 the payments resumed to the Appellant. He drew adverse conclusions from this.
30. We asked Mr Voliere if there was any explanation for this in the evidence. He first said that the Sponsor said in oral evidence that he changed to using the Appellant's first name. We then asked why in that case the Sponsor changed it back again in 2005. Mr Voliere then changed tack and said that some of the payments were to the Appellant's mother intended for the Appellant as they lived in the same household and, especially at the beginning, because she was more able to obtain the money than the Appellant, as she was known at the collection point. We asked if there was any evidence that the Appellant and her mother lived in the same household at this time, and he could provide none. We asked why, if the mother was better able to get the payments, the early payments were to the Appellant. He said the Sponsor's oral evidence was that this was to facilitate payment. We asked why in that case did the payments to the mother continue after her death. He said it was for consistency. We stress that Mr Voliere indicated that the evidential basis for all his answers to our questions lay in what the Sponsor said in oral evidence. However there is no support for that in the Immigration Judge's record of proceedings or in the HOPO's contemporaneous note.
31. We consider that the Immigration Judge was fully entitled to draw adverse conclusions concerning the alleged remittances on the evidence before him as a whole. Indeed in addition to the problems described above about the payees, the Sponsor and the Appellant gave very different accounts of how much money, if any, was sent. As the Immigration Judge recorded in paragraph [39], the Appellant said in interview she received £50 every two to three months, yet the Sponsor's evidence was that he was sending up to 4 times that amount. Mr Voliere said that the Appellant's answer may have been inaccurate because she did not know the precise amount sent, or was mistaken over the exchange rate. We asked him if he had suggested that to the Immigration Judge in oral submissions and he confirmed that he had not, even though this inconsistency was a matter that the HOPO had highlighted in his oral submissions. We consider that Mr Voliere's attempts to explain away the materiality of the inconsistencies only made matters worse for the Appellant.
32. Mr Voliere then submitted that the inconsistencies in the evidence identified by the Immigration Judge were not fatal to the application. We disagree. The many inconsistencies go to the heart of the claim that there has been a continuing and meaningful relationship between the Sponsor and the Appellant over the twenty years they have lived apart. Apart from the discrepancies over the alleged remittances, there were inconsistencies over when they first met and how long they were together. The Appellant lied to conceal her previous visa application as a visitor in 1997/8. She said did not know of the alleged visa applications for her allegedly made by the Sponsor in 1998/9, of which there is no record. In paragraph [35] the Immigration Judge identifies a discrepancy on the marriage certificate which appears to have been signed by the Sponsor in Kumasi Ghana in 2003, at which time he was in the UK.
33. In short, we consider that the Immigration Judge's adverse credibility findings are in all respects properly reasoned, soundly based on the evidence and sustainable. They support his overall conclusions as set out in paragraph 3 above. There is no merit in the contrary submissions in the grounds as amplified before us by Mr Voliere.

Decision

34. The Immigration Judge did not make a material error of law and the original determination of the appeal shall stand.

Signed Dated 12 April 2006

S L Batiste

Senior Immigration Judge