Upper Tribunal (Administrative Appeals Chamber)

 

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the Appellant’s appeal.

 

The decision of the Birmingham First-tier Tribunal dated 29 June 2012 under file reference SC024/11/10867 involves an error on a point of law and is set aside.  The Upper Tribunal re-makes that decision in the following terms:

 

“The Appellant’s appeal is allowed.

 

The Appellant is entitled to bereavement benefit. The marriage between her and Mr A on 11 October 1975 was a valid marriage. Mr A had not previously been married to Mrs J in 1948 or 1949.

 

The Secretary of State’s decision issued on 1 March 2011, and revised on 13 September 2011, is further revised accordingly.”

 

This decision is given under section 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS FOR DECISION

 

An introduction to the issues in this case

1. The Appellant (Mrs A) made a claim for bereavement benefit in September 2010 following the death of her husband, (Mr A), who had died the previous month. She had married Mr A in Pakistan in October 1975.

 

2. The Department’s decision-maker refused that claim on the basis that:

(i) Mr A had previously married his first wife, Mrs J, also in Pakistan, in 1948 or 1949;

(ii) the purported talaq divorce of Mrs J, pronounced by Mr A in England in August 1975 by way of a statutory declaration, was not valid under UK law;

(iii) Mr A accordingly did not have the capacity under English law to enter into his second marriage, to Mrs A, in October 1975;

(iv) and therefore Mrs A was not Mr A’s widow for the purposes of entitlement to bereavement benefit.

 

3. The validity of the purported talaq divorce is not directly in issue in this appeal. Rather, this appeal turns on a prior issue, namely the quality of the evidence to suggest that Mr A had indeed entered into an earlier marriage with his “first wife”, Mrs J, in 1948 or 1949.

 

The sequence of events leading to the bereavement benefit claim

4. The dates of the events relevant to this appeal are as follows. None of these dates or events was in dispute before the First-tier Tribunal, except for those entries in the chronology below which are italicised:

 

17 June 1938 Mr A born in Pakistan

 

1948 or 1949 Mr A married Mrs J in a ceremony in Pakistan

 

14 June 1956 Mrs A born in Pakistan

 

17 November 1961 Mr A entered the UK

 

23 November 1972 Mr A became a British citizen

 

1 August 1975 Mr A pronounced a talaq divorce of Mrs J by way of a statutory declaration sworn in England

 

15 August 1975 Mrs J swore a notice in Pakistan that she accepted the talaq

 

11 October 1975 Mr A married Mrs A in a ceremony in Pakistan

 

December 1975 Mrs J died in Pakistan

 

1976 Mr A applied to the Home Office for entry clearance for Mrs A and she entered the UK

 

Summer 2003 Mr A claimed state retirement pension in the UK

 

12 August 2003 Mr and Mrs A completed a DSS enquiry form with details of their marriage, Mr A stating that he had not been previously married

 

3 October 2003 Mr A annotated the DSS form, following interview with a DSS liaison officer, adding “this is false information” against the previous entry stating that he had not previously been married, and making further entries referring to Mrs J

 

6 February 2004 Mr A wrote to the Pension Service in Newcastle, arguing that he had been validly divorced from Mrs J and that Mrs A was his only wife. The Department’s Validity of Marriage Unit made further enquiries and Mr A was subsequently awarded a dependant’s addition (or ADI) to his retirement pension in respect of Mrs A

26 July 2010 The Pension Service withdrew the dependant’s addition

to Mr A’s retirement pension, but only because Mrs A was now in receipt of carer’s allowance, which was paid at a higher rate

 

15 August 2010 Mr A died

 

20 September 2010 Mrs A claimed bereavement benefit.

 

The Department’s decision-making

5. On 1 March 2011 a decision maker refused Mrs A’s claim for bereavement benefit on the basis that she had not shown that she had been legally married to Mr A. The reason given for this conclusion was, rather bizarrely, that the ceremony did not take place in an authorised building and in the presence of a Registrar and so did not meet the requirements of the Marriage Act 1949. This purported reason, at least in those terms, was obviously nonsense. The Marriage Act 1949 applies (for the most part) only to England and Wales (see section 80). It does not apply to Pakistan. Everyone agrees that the ceremony between Mr A and Mrs A on 11 October 1975 took place in Pakistan.

 

6. On 13 September 2011 a different decision maker came to the same conclusion as regards Mrs A not being entitled to benefit, but for a different reason. This was that Mr A had acquired a domicile of choice in the UK by 1975, that his purported talaq divorce was ineffective (see Family Law Act 1986, section 44) and that he therefore also lacked the capacity to enter into a second polygamous marriage with Mrs A. I should add here that Mrs A’s solicitors now correctly concede that by 1975 Mr A was indeed domiciled in the UK. This revised reason for the Department’s decision was at least legally coherent.

 

The appeal to the First-tier Tribunal

7. Mrs A’s solicitors lodged an appeal to the First-tier Tribunal (FTT) on her behalf. Amongst other matters, they argued that (i) Mrs A’s Nikah Nama (marriage certificate or contract) from 1975 made no reference to Mr A having had an existing wife; (ii) Mrs A and her family had no knowledge of any such previous wife; (iii) the Home Office and the Department’s Validity of Marriages Unit had both investigated the matter in 1976 and 2003/04 respectively and had both accepted the validity of the 1975 marriage; (iv) there was no documentary evidence of the 1948/1949 marriage to Mrs J and indeed “no substantial evidence of the existence of [Mrs J] at all”.

 

8. In subsequent correspondence the solicitors pointed out that the 1975 statutory declaration referred to Mrs J having had four children out of wedlock. They suggested that if that had indeed been a genuine marriage, then Mr A would have divorced Mrs J when she had her first child by another man, and not waited until she had had four such children. They also provided a copy of an e-mail from a High Court Advocate in Pakistan, commenting on the likely effect of Pakistan’s Child Marriage Restraint Act 1929 and other matrimonial legislation then in force.

 

9. The Department’s original written submission to the First-tier Tribunal was based on the second, revised decision of 13 September 2011. It set out that argument at rather greater length, submitting that the 1975 marriage was void under English law. It referred in particular to Mr A’s talaq by way of a statutory declaration in 1975 and Mrs J’s apparent sworn notice of acceptance. The submission writer argued that on the balance of probabilities Mrs J did exist and that she had been married to Mr A in 1948 or 1949.

 

10. The Department also provided a supplementary written submission, which made two further points. The first was that the paperwork for the 2003 award had been destroyed in the normal course of business and that “no one can make any presumptions about what evidence the documents might have obtained (R(IS) 11/92). This means that claimants cannot say that the destroyed documents must have supported their case”. The second point was that although both Mr A and Mrs J were both said to be children at the time of the 1948 or 1949 ceremony, the marriage was only voidable under Pakistan’s Child Marriage Restraint Act 1929. It accordingly remained a valid marriage until Mrs J’s death.

 

11. At the FTT hearing on 29 June 2012 Mrs A gave evidence through an interpreter. She was represented by her solicitor, who made various submissions on the available evidence. She argued, in particular, that the supposed “marriage” to Mrs J was actually a fraud, designed to take advantage of child tax allowances which had been available prior to the introduction of child benefit, and that Mrs J was a fictitious individual. Mr A’s son told the FTT that the family now believed that his father’s account about Mrs J was “a made up story to claim child tax allowances; he lied”.

 

The First-tier Tribunal’s decision

12. The FTT dismissed the appeal. The FTT’s decision notice recorded the findings that Mr A had acquired a domicile of choice in the UK by 1975 and that when he married Mrs A he was still married to Mrs J. The FTT Judge then issued a detailed statement of reasons. There is no challenge by Mrs A’s solicitors to the tribunal’s finding that Mr A was domiciled in the UK by 1975. The challenge is to the finding that there was a valid marriage between Mr A and Mrs J in 1948 or 1949.

 

13. In making this finding, the FTT only directly addressed one piece of evidence relied on by Mrs A’s solicitors. This was the e-mail opinion of the High Court Advocate in Pakistan. The FTT rejected this opinion evidence on the basis that it was founded on “pure speculation” (which certainly seems fair comment) and made no reference to the 1975 statutory declaration. In fairness to the High Court Advocate, he had not been referred to the statutory declaration. The e-mail correspondence showed that he had only been asked for his legal opinion of the validity of an alleged marriage between minors in 1948/49 under the then law of Pakistan.

 

14. The key passage in the FTT’s statement of reasons read as follows:

 

“4.5 ... The submission made by the Appellant’s representative is that the statutory declaration of the 01 August 1975 was sworn to a state of affairs and facts that were, in fact, untruths and that the reason why that may have been done was so that [Mr A] could claim child [tax] allowance in respect of the four children that he claimed to be the father of arising out of his relationship with [Mrs J].

 

4.6 In the Tribunal’s view when presented with a sworn Statutory Declaration of facts for it not to accept those facts as not being true it must have by way of rebuttal the strongest possible evidence that those statements and representations within the Statutory Declaration are not true.

 

4.7 With respect to the Appellant, that evidence has not been produced. The Tribunal is asked to accept a proposition that the facts within the Statutory Declaration were an invention for the purposes of a party initiating a fraud on the tax/benefit system of this country.

 

4.8 The Tribunal does not accept that it has before it sufficiently weighty and corroborated evidence that there was never a marriage between [Mr A] and [Mrs J].”

 

The proceedings before the Upper Tribunal

15. Mrs A’s solicitors lodged an application for permission to appeal against the FTT’s decision. They argued that the FTT had made findings of fact which were not supported by the evidence and had failed to have regard to relevant evidence. However, the principal ground of appeal was that the FTT had failed to give adequate reasons for its decision and in particular for the conclusion at paragraph [4.8].

 

16. I gave Mrs A permission to appeal, noting that “it does appear as if the tribunal took the view that it was for the Appellant to prove a negative, namely ‘that there was never a marriage between Mr A and Mrs J’.”

 

17. Mr Kevin McClure has provided an extremely comprehensive and helpful submission on behalf of the Secretary of State, supporting Mrs A’s appeal to the Upper Tribunal. His primary submission is that the FTT misdirected itself in law by entirely overestimating the evidential weight to be accorded to the 1975 statutory declaration. He also argues that the FTT failed to perform its inquisitorial function properly, in that it failed to consider all the relevant evidence and weigh it against the contents of the statutory declaration.

 

The Upper Tribunal’s analysis of the main ground of appeal

18. I have no hesitation in allowing this appeal. The FTT regarded the contents of the statutory declaration as presumptively true, requiring “the strongest possible evidence” to the contrary (at paragraph [4.6]) and found that such evidence of a “sufficiently weighty and corroborated” nature had not been produced (at paragraphs [4.7]-[4.8]). I agree with both representatives that the FTT erred in law in its approach to the weight to be accorded to the statutory declaration, even if I do not agree with Mr McClure’s reasoning in its entirety.

 

19. Mr McClure’s submission is put in these forthright terms:

 

“9. I can find no legal authority for the tribunal’s extraordinary degree of trust in, it would seem, not only this Statutory Declaration on its facts, but each and every Statutory Declaration that might come its way. I submit that there is no evidence that the content of [Mr A’s] declaration was tested, verified or corroborated before it was sworn, and I therefore submit that it should be given no additional weight beyond that of a simple written statement. I submit that the fact that it was sworn sets no requirement for a level of rebuttal such as was imagined by the tribunal.”

 

20. I accept Mr McClure’s submission that the FTT placed an “extraordinary degree of trust” in this statutory declaration. I also accept the submissions by Mrs A’s solicitors that the FTT failed to weigh this piece of evidence against all the other material evidence – referring solely to the High Court Advocate’s opinion and the solicitor’s explanation based on the allegation of fraud (other relevant evidence is considered below). However, I do not accept Mr McClure’s further argument that the statutory declaration “should be given no additional weight beyond that of a simple written statement.” I say that for the following reasons.

 

21. The statutory declaration in this case was in the form required by section 20 of, and the Schedule to, the Statutory Declarations Act 1835, namely to the effect that Mr A had made “this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of Statutory Declarations Act 1835.” It was, therefore “plainly intended to be a formal and important document”, adopting the description used by Rix L.J. in Secretary of State for Work and Pensions v Ahmed [2005] EWCA Civ 535 (also reported as R(IS) 8/05, at [29]). It is, of course, an offence, punishable with a sentence of up to two years’ imprisonment, “knowingly and wilfully” to make “a statement false in a material particular” in a statutory declaration (Perjury Act 1911, section 5; see R v Sood (1998) 47 BMLR 166).

 

22. The actual issue in Ahmed was whether the particular statutory declaration in question constituted a “maintenance undertaking” within the meaning of the Immigration and Asylum Act 1999. As May L.J., concurring, observed:

 

“A sincere and solemn declaration is clearly more numinous than a mere declaration, but sincerity and solemnity do not by themselves change the nature of the declaration” (at [58]).

 

For that reason I do not go as far as Mr McClure, who argues that the statutory declaration should carry “no additional weight beyond that of a simple written statement.”

 

23. It is also well established, of course, that the question of whether evidence is given on oath (or affirmation) is relevant to its probative worth (see e.g. General Medical Council v Spackman [1943] A.C. 627 at 636-637 per Viscount Simon L.C.). The same consideration, in my view, applies to a statutory declaration. It does not mean, however, that the contents of the statutory declaration are presumptively true, requiring a high degree of rebuttal. On the contrary, the probative value of such a statement can only be properly assessed by having regard to all the material evidence, which this tribunal unfortunately failed to do.

 

24. To take just one factual illustration from the case law, in the litigation which followed the collapse of BCCI, Lightman J. found that one of the employees, a Mr Zafar, had made a false statement in a statutory declaration (at [226(i)]) and that he was not a credible witness (at [267]), having weighed all the relevant evidence (BCCI v Khan, Ali and Others [1999] EWHC 846 (Ch)). The fact that the statement in question had been made in a statutory declaration was doubtless a factor to be taken into account – but there is no suggestion in Lightman J’s judgment that this format required compelling evidence in rebuttal.

 

25. It follows that the FTT in this case erred in law. It proceeded on a generalised assumption that a statement of fact in a statutory declaration needed to be rebutted by compelling evidence to the contrary. It also failed to engage properly in the process of evaluating all the evidence. In those circumstances I do not need to address the other grounds of appeal advanced by Mrs A’s solicitors in any detail. I would just add that although the FTT’s phraseology is rather ambiguous, there is some force in the argument by Mrs A’s representative that the FTT misunderstood the thrust of her submission about the statutory declaration. Paragraph [4.5] of the FTT’s reasons might be read as suggesting that the statutory declaration was designed to perpetrate a fraud on the Revenue. In fact, of course, Mrs A’s representative was arguing that the statutory declaration was sworn to terminate the deceit, not to perpetuate it. In any event, I allow the Appellant’s appeal and set aside the tribunal’s decision (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).

 

26. There is no point in sending this case back for re-hearing before a fresh tribunal, as it is highly unlikely that any new evidence will emerge. Both parties are content for me to proceed to re-make the decision under appeal. I do so accordingly.

 

The Upper Tribunal’s re-making of the decision under appeal

Introduction

27. Mr McClure’s submission, in summary, is that (i) in the circumstances of this case it was for the Secretary of State to show that Mrs A was not validly married – it was not for Mrs A to prove a negative, namely that there had never been a valid marriage between Mr A and Mrs J; (ii) the evidence that there had been such a marriage between Mr A and Mrs J was at best weak; and (iii) the weight of the evidence before the tribunal should have led it to conclude that Mrs A’s marriage to Mr A was valid and that she was therefore entitled to bereavement benefit.

 

28. Mrs A’s solicitors, whilst making a number of further points, agree with that approach. I could accordingly have dealt with the matter either by way of a consent order (Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), r.39) or by way of a decision without reasons (r.40(3)). However, I agree with Mr McClure that it may be helpful to other First-tier Tribunals to explain the reasoning for my decision.

 

The evidence that there had been a marriage between Mr A and Mrs J in 1948/49

29. The starting point in considering the case that Mr A and Mrs J were validly married in 1948/49 is that there is no direct evidence of the alleged marriage between Mr A and Mrs J. The only evidence that there was such a marriage is (i) by way of inference from Mr A’s 1975 statutory declaration that he had ended it by divorce; (ii) again, by way of inference from the purported acceptance of the talaq by Mrs J; and (iii) by way of Mr A’s various annotations to the DSS enquiry form, and correspondence with the DSS, at the time of his own application for benefit in 2003/04.

 

30. The argument put by Mrs A’s solicitors at the FTT hearing was stark, and less than attractive. As they also subsequently explained in the application for permission to appeal:

 

“It was put to the Tribunal that the late Mr A may have had his own reasons for inventing a wife when he was working in the UK in the 1960s, and further good reason for killing off the said “wife” by the mid 70s, namely that fraudulent claims of Child Tax Allowance were common in immigrant communities during the 1960s, and these allowances were abolished from 1975. At the Tribunal hearing evidence was presented that Mr A’s tax code reduced substantially in the 1974/5 tax year.”

 

31. Mrs A’s representative makes the further remarkable claim in her written submissions that “I have seen numerous benefit cases where pre-1975 dependants were invented for tax purposes, and many of these people could not remember and give consistent details of those that they invented. I have also been told by many men that in the late 1970s they had to repay the Revenue because of this type of fraud, particularly where they were then seeking to bring their genuine wives to the UK.”

 

32. Rather than peremptorily dismissing this argument (which I consider further in the Appendix to this decision), the FTT should have weighed this explanation in the balance. It could not simply disregard it without further ado because Mr A had apparently acknowledged a prior marriage in his 1975 statutory declaration. In my view, Mr A’s evidence in the round should have been treated with some circumspection. True, he had, by inference, accepted in the statutory declaration that there had been a valid marriage in 1948/49. However, in one of his answers to the DSS enquiry form in respect of his 2003 retirement pension claim, he denied ever having been married to anyone else, signing a declaration to the effect that the information given was correct and complete and that if not “action may be taken against me”. He then subsequently added annotations to a copy of that enquiry form, designed to make the answers consistent with the statutory declaration. He also gave different dates as to when he understood Mrs J had died.

 

33. The tribunal papers included what purported to be Mrs J’s sworn acknowledgement of the talaq. However, Mrs A’s solicitors have provided a certificate from the Peshawar Treasury, the equivalent of the Land Registry, recording no trace of the address given by Mrs J in her statement. This at least raises a question mark as to the authenticity of her sworn statement.

 

34. That, then, is the limit of the evidence to support the case that there was a valid marriage between Mr A and Mrs J in 1948 or 1949. Mr McClure relies by analogy on the decision of Mr Commissioner Jacobs in CP/6277/1999, where he held as follows (at paragraph 9):

 

“… So, the burden was on the adjudication officer (now the Secretary of State). There was some evidence of another marriage, but it was very weak. The question I ask myself is this. If the evidence of the other marriage that is before me was used as the basis for a claim for a retirement pension, what would the decision be? The answer can only be that it would be rejected as insufficient to prove the existence of a marriage. On that basis, the Secretary of State has not proved that there was another marriage.”

 

35. This evidence must now be weighed in the scales against the evidence to the contrary.

 

The evidence that there had not been a marriage between Mr A and Mrs J in 1948/49

36. The contemporary evidence of any such marriage in 1948 or 1949 is non-existent. There is no evidence of the precise date of the alleged marriage. There is no marriage certificate or any other contemporary documentation. There is no evidence from any third parties about the supposed marriage. However, none of this is fatal to the case for there having been a marriage. This is for the simple reason that the event in question, assuming it took place, happened a long time ago in a society with different customs and practices. As Mr Commissioner (now Judge) Jacobs observed in CP/4062/2004, commenting on the availability (or otherwise) of contemporaneous documentary evidence of births or marriages:

 

“13. This is an inevitable feature of cases involving countries in which there is no reliable system of registration of important life events like birth, marriage and death. It is a neutral factor in the assessment of the evidence. It hampers the genuine claimant in making her case, while providing an opportunity for deceit by the dishonest claimant. The decision-maker and the tribunal have to decide whether the claimant is genuine or dishonest. It is wrong to approach that task by taking the lack of contemporaneous evidence as a factor that is against the claimant. To do so would be to assume what has to be decided.”

 

37. A further consideration is that Mr A was obviously a child at the time of the alleged marriage in 1948 or 1949. It is said that Mrs J was too. Again, this does not, of itself, mean that a valid marriage did not take place. The Child Marriage Restraint Act 1929, originally enacted in British India, applied also to Pakistan. It provided for minimum ages for the marriage of boys (18) and girls (14, later raised to 16 by the Muslim Family Law Ordinance 1961), backed up by criminal sanctions. Such marriages were voidable by the child bride on attaining majority. As the standard legal textbook on the subject notes,

 

“While very early marriages are widely perceived as socially undesirable, and the average marriage ages in South Asia are in fact slowly going up, most child marriages never come to the notice of the authorities, hardly anyone gets penalised, and such marriages have consistently been recognised as legally valid” (D. Pearl and W. Menski, Muslim Family Law (3^rd edition, 1998) at p.155, [6-55]).

 

38. So the absence of contemporary evidence and the fact that the parties were children at the time of the alleged marriage is not decisive either way. There are, however, a number of factors which do suggest that no such marriage took place. In no particular order, they are as follows.

 

39. First, the FTT had before it Mr A’s old-fashioned national insurance (NI) account card (or “RF1”). This recorded his name, address, marital status, occupation NI contributions and credits etc up till the first basic computerised system in 1975. Mr A’s RF1 was opened in 1962, shortly after his entry to the UK. The entries for marital status or spouse were all left blank. This is the oldest document on file. It shows that Mr A made no declaration to the Department between 1962 and 1975 (the final entry being 5 October 1975) that he was or had been married, let alone married to Mrs J.

 

40. Second, the FTT also had before it a copy of the original certificate of marriage between Mr and Mrs A in 1975 and an authorised translation into English. In the English version, Mrs A was described as a “spinster”; however, the answer to the question “Does the bridegroom have another wife? If so, did he obtain permission of the Arbitration Council under Muslim Family Law Ordinance 1961?” was left blank. In the original Urdu text, however, diagonal or crossed lines had been entered, presumably indicating that no relevant information needed to be included.

 

41. Third, Mrs A and her son gave clear and consistent evidence to the FTT that Mr A had made no mention whilst he was alive of Mrs J or the alleged four illegitimate children that she had had. They had also made extensive enquiries of family members, none of whom could confirm the existence of Mrs J. An obvious riposte to this is that little weight should be attached to this particular evidence, as it was self-serving. However, Mrs A also gave evidence that her marriage to Mr A was an arranged marriage, that he was then aged 37 and she was 19, and that she had discussed the matter with her late father, who had said that he would have been aware of any previous wife.

 

42. Fourth, and finally, the validity of Mrs A’s marriage had twice previously been investigated by the UK authorities. In the first place, the Home Office had approved Mr A’s application for entry clearance for Mrs A in 1976 before she entered the UK. None of the relevant documents were before the FTT. However, it is not unreasonable to assume that that application was approved only after the usual types of enquiries were made.

 

43. Subsequently the Department’s specialist Validity of Marriage Unit (VMU) had conducted its own investigation into Mr A’s marital status in the course of 2003 and 2004 before the decision was taken to award the ADI for Mrs A as part of his retirement pension. That investigation included an interview, the transcript for which is no longer available as the Department has destroyed all the relevant papers under its normal protocols for retaining or disposing of historic documents. It doubtless included other relevant material, including both other evidence and opinions from VMU staff on that evidence. The Department was well aware at that time of the possibility of a previous marriage with Mrs J, yet the advice was given that the marriage to Mrs A was valid.

 

44. In its submission to the FTT, the Department sought to deal with this matter in the manner explained in paragraph 10 above, by reference to reported Social Security Commissioner’s decision R(IS) 11/92. However, as Mr McClure submits, “if the intention of the reference to R(IS) 11/92 was effectively to rule the Secretary of State’s favourable ADI decision out of evidence before the tribunal, then that intention was ill-founded. The Secretary of State makes correct decisions in the vast majority of cases, and the ADI decision would not have been made without reference to the relevant evidence, and a determination that on the balance of probabilities that the claimant was validly married to Mr A.”

 

The Upper Tribunal’s conclusion

45. The absence of contemporary documentation and a certain haziness about the date of the alleged marriage between Mr A and Mrs J does not mean that it did not take place. The fact that they were both said to be children did not mean that it did not take place. However, the only evidence that such a marriage did happen is by way of inference from Mr A’s statutory documentation and associated documents. There are reasons to be sceptical about all this evidence; for example, Mr A changed his story more than once and there is no firm evidence that Mrs J actually ever existed. In addition, Mrs A’s solicitors have put forward a reason for Mr A’s account which, whilst deeply unattractive, had at the very least an air of plausibility about it (and indeed, for the reasons given in the Appendix, which also forms part of this decision, the ring of truth).

46. On the other hand, Mr A’s NI records and the 1975 marriage certificate give no support at all for the suggestion that he had been previously married, and if anything suggest that he was not. The family’s evidence was that they had never previously heard of Mrs J – and I take account of the fact that this was an arranged marriage, with all that entails about the two families and their previous dealings. Two Government departments have previously concluded that the marriage between Mrs A and her late husband in 1975 was a valid one, and at least one of those departments (the VMU in 2003/04) had before it at least as much evidence as is available now and probably more.

47. In those circumstances I conclude that the weight of the evidence satisfies me on the balance of probabilities that, notwithstanding Mr A’s 1975 statutory declaration, there never had been a previous marriage between Mr A and Mrs J. Mr A’s only valid marriage was with Mrs A on 11 October 1975. I would have reached this conclusion without having regard to the burden of proof. But given that it must be for the Secretary of State to show that Mrs A was not validly married, I am certainly persuaded that that burden has not been discharged on the available evidence.

Conclusion

48. I conclude that the decision of the First-tier Tribunal involves an error of law for the reasons set out above. I therefore allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The decision that the FTT should have made is as follows (section 12(2)(b)(ii)):

 

“The Appellant’s appeal is allowed.

 

The Appellant is entitled to bereavement benefit. The marriage between her and Mr A on 11 October 1975 was a valid marriage. Mr A had not previously been married to Mrs J in 1948 or 1949.

 

The Secretary of State’s decision issued on 1 March 2011, and revised on 13 September 2011, is further revised accordingly.”

 

 

 

 

Signed on the original Nicholas Wikeley

on 5 September 2013 Judge of the Upper Tribunal

 

APPENDIX to CG/185/2013

 

A1. In the main body of my decision I included the following submissions from the representatives of Mrs A:

 

‘30. The argument put by Mrs A’s solicitors at the FTT hearing was stark, and less than attractive. As they also subsequently explained in the application for permission to appeal:

 

“It was put to the Tribunal that the late Mr A may have had his own reasons for inventing a wife when he was working in the UK in the 1960s, and further good reason for killing off the said ‘wife’ by the mid 70s, namely that fraudulent claims of Child Tax Allowance were common in immigrant communities during the 1960s, and these allowances were abolished from 1975. At the Tribunal hearing evidence was presented that Mr A’s tax code reduced substantially in the 1974/5 tax year.”

 

31. Mrs A’s representative makes the further remarkable claim in her written submissions that “I have seen numerous benefit cases where pre-1975 dependants were invented for tax purposes, and many of these people could not remember and give consistent details of those that they invented. I have also been told by many men that in the late 1970s they had to repay the Revenue because of this type of fraud, particularly where they were then seeking to bring their genuine wives to the UK.”

 

A2. In her submissions to the Upper Tribunal, Mrs A conceded that she was unable to offer any legal precedent to support these submissions. She accepted that she had told the FTT that the only cases she was aware of involved other clients for whom she had acted.

 

A3. Mr McClure, for the Secretary of State, stated that he was “in no position to judge” whether the explanation that had been proffered was correct. However, he very fairly noted that Mrs A’s representative had considerable experience “in dealing with the issues arising here”.

 

A4. I have undertaken some limited research and identified a number of materials which provide support for the arguments put by Mrs A’s representative. I have not put these points to the parties as in the circumstances they do not need any further comment – they simply underpin Mrs A’s case and Mr McClure supports the appeal on other grounds, without needing to delve into this murky matter.

 

A5. The fruits of my limited research are as follows.

 

A6. First, child tax allowances (CTAs), which were first introduced in 1909, were available for children living overseas (Finance Act 1977, section 25). They were finally abolished, following a transitional period, with the introduction of child benefit (see Finance Act 1980, section 25(3)). According to one socio-legal study, the abolition of CTAs:

 

“was prompted by the introduction of child benefit and also by the British High Commission in Bangladesh which issued a document, The Sylhet Tax Pattern, claiming tax fraud within the UK by Bangladeshis from Sylhet”

 

S. Cohen, Immigration Controls, the Family and the Welfare State (2001), p.184.

A7. Second, an article in the Law Society Gazette (“The South Asian family and British Immigration Law: part I” on 10 February 1988 analysed in some detail the difficulties faced by migrants from India, Pakistan and Bangladesh. The author gave the following scenario:

 

“Let us take a fictitious person, one Syed Ullah. He comes from a poor village near Sylhet in East Bengal. The family are traditional farmers. There is little money to spare. The year is sometime in the mid-1960s. The family decide that Syed should go to England to earn money. He has no problems with the immigration authorities at this time. When he arrives in the UK he finds lodgings and a job. He is perhaps now the only real wage earner in the family. The intention is that he should stay in the UK for a short period and then return home to East Bengal. He remits most of his earnings back to his family in Bengal. He is told by his fellow countrymen that in order to add a little, perhaps a very little, to his meagre resources that he should declare to the tax authorities the existence of a wife and children back home. He is of course a bachelor. The wife and children either don't exist at all, or they are real people but possibly from his brother's family. As, in any event, he is primarily responsible for supporting them from remittances, he may feel a moral justification for doing what he has done. It is known as the Sylhet tax pattern ('STP'). In one case, a sponsor stated why he had submitted incorrect tax claims. This is fairly representative. 'When I came here, I did not know anything about how to apply for a code number. People gave me advice, if you make more children, you get bigger code number. They told me, if you alter date of birth, then we can adjust another two children.'

 

The wife and children

In the early 1970s, he returns to Bangladesh for a visit. A marriage has been arranged for him. It is then that he finds himself in difficulties. He gets married and then within a few months returns to the UK. Perhaps some eight months after his return a child is born. The tax claims have to be adjusted. He may therefore declare that he has 'divorced' his first wife, or that she has died. Just possibly the real wife assumes the identity of the fictitious wife. On subsequent visits to Bangladesh, more children are born and the time finally comes when the wife and children persuade him to bring them over to the UK. He applied for entry certificates on their behalf at the British High Commission in Dhaka. Anyone wishing to settle in the UK as the wife or dependent relative of a person settled here requires an entry clearance certificate, which consists in effect of an endorsement of the passport.”

 

A8. The author, plainly writing with the benefit of considerable experience, goes on to deal with the inevitable problems that then result in the application process, where it “is tinged with the deceit of the tax fraud and the evidence of the sponsor and the principal applicant to that extent will lack some credibility”.

 

A9. Third, there was a lengthy debate in the House of Commons, in the course of the passage of the Finance Act 1980, on the subject of “Child Tax Allowances for Children living abroad” (Hansard, HC Debs vol 988 col 1646-70, 16 July 1980). The Minister’s justification for the change did not place any reliance on the risk of fraud. However, the issue of “false claims in respect of nonexistent children” by the “new Commonwealth and Pakistani ethnic group” was raised by backbench MPs.

 

A10. All these sources (which, of course, were not before the FTT) support the explanation which was put forward by Mrs A’s representative at the FTT hearing for why the statutory declaration had been made. It was, as she argued, designed to terminate the deceit, not to perpetuate it. Mr A was about to enter an arranged marriage and needed to ensure that everything was in order so that his new wife would be allowed to enter the UK. This gives the explanation that has been proffered not simply the air of plausibility, but the ring of truth.