OA167492013

In relation to ground 3, in finding in particular at [23] that there was 'no evidence' that the appellant consented to the marriage, the judge failed to take into consideration all the evidence. This included that the appellant had provided her English language test and the judge failed to make any findings as to this evidence. Although Ms Fijiwala referred to the judge's findings that there was nothing in the appeal from the appellant, in particular no witness statement, the judge went on to make detailed findings in relation to the application including that it was on the internet, albeit with the appellant's signature, and that there was no evidence of consent. Those findings were not, as Ms Fijiwala contended before me, restricted to findings as to the lack of evidence on appeal, but included the judge's findings as to the alleged lack of involvement of the appellant in the process generally including the application. In that context I am satisfied that the judge fell into material error in failing to make adequate findings in relation to what weight if any was to be placed on the appellant's sitting of the English test.

I gave my decision at the hearing that there was an error of law and that I would remake the decision afresh.

For the purposes of remaking the decision, I heard oral evidence from the sponsor, Mr Israrullah Safi who gave evidence in English. I also heard submissions from both representatives. All of the evidence and submissions are set out in the Record of Proceedings. The documents before me included the bundle of documents originally before the First-tier Tribunal and a supplementary bundle of documents for the purposes of remaking the decision. This included supplementary witness statements from the sponsor, together with witness statements from the appellant and the appellant's parents. I reserved my decision. I have carefully taken into account, in the round, all the evidence before me prior to reaching that decision, even if not specifically referred to below.

Appendix FM, Paragraph EC-P.1.1 of the Immigration Rules sets out the criteria for entry clearance as a partner. These include that the applicant must meet all of the requirements of Section E-ECP: Eligibility for entry clearance as a partner.

An applicant is required to meet all the requirements in paragraphs E-ECP.2.1 to 4.2. These include:

The burden of proof is on the appellant to establish her case on a balance of probabilities. I must assess the appellant's case in relation to the above matters at the date of the ECO decision, on 25 July 2013.

It was not disputed that the only issue before me was whether the appellant and the sponsor were, at the date of decision, in a genuine and subsisting relationship and whether they intend to live together permanently.

I found the sponsor, Mr Israrullah Safi to be a credible witness. He gave consistent oral evidence and did not waiver under cross-examination. In finding the sponsor credible I have considered all the evidence including that he works on occasion as an interpreter for the Ministry of Defence. This was not disputed (and was evidenced on a number of the financial documents). I am of the view that this would be a position of some trust and that the sponsor would not wish to jeopardise this role or his integrity generally by being party to a fraudulent application. His evidence was of assistance to me.

Although I accept that the telephone numbers given by the appellant in the application form were Pakistan telephone numbers, the sponsor in oral evidence and the appellant in her witness statement dated 20 October 2015, confirmed that as she had to attend the British High Commission in Islamabad in Pakistan in order to submit her application, she provided the contact numbers of her uncle in Pakistan as she understood from the ECO at the High Commission that they might need to contact her. On balance I am satisfied that this is a plausible explanation. The appellant was not asked on her application to provide any other telephone numbers. I do not therefore, in all the circumstances, draw any adverse inference from the fact that the numbers shown on itemised telephone records submitted by the appellant both with her application and on appeal are different.

The appellant has provided two witness statements, one dated 20 October 2015 and one dated 20 February 2015. Although these postdate the respondent's decision I have taken them into consideration insofar as they relate to the circumstances appertaining at the decision.

The appellant and the sponsor have provided a substantial amount of documentary evidence including telephone and other records, including of Skye and Tango internet calls. Although I accept that some of this evidence is of limited value, being for example undated screen grabs showing the appellant and the sponsor on the same screen, I have considered this evidence cumulatively, in the round. The appellant's sponsor has always consistently maintained (and this is supported by the appellant's subsequent witness statements (with translations) that he and his wife have maintained contact by a variety of methods. The couple met in August 2009 and the sponsor indicated in his first witness statement that between August 2009 and September 2012 they talked to each other using international calling cards, 'Maxitalk & Talk Home'. Although these were not produced, I accept that it is plausible that these may not have been kept at the time, particularly as the couple moved on to other methods of keeping in contact.

The couple married on 14 July 2011 and the sponsor remained in Afghanistan for a further month and a half after the wedding (and I accept that this is shown on the sponsor's passport stamps). The sponsor's passports also show a number of further visits to Afghanistan. Although the ECM in reviewing the appellant's grounds of appeal, by review dated 10 June 2014, indicates that there 'is no evidence' that the sponsor saw the appellant, for example in the visit to Afghanistan from 14 June 2012 to 11 September 2012, I accepted the sponsor's consistent evidence that all of his own family including his mother and father and siblings reside in the UK. Although that in itself does not mean that he was necessarily visiting the appellant, on the basis of all the evidence considered in the round, including the consistent oral evidence of the sponsor and the appellant's witness statements, I accept on balance that he was.

The ECM asserted that there was no evidence of Skype contact 'in the file'. However this evidence was before me and consists of almost 100 pages of screenshots. The usernames 'Safi Israrullah' and 'Masrorisrar' can be seen on these screenshots as can pictures of the appellant and the sponsor on the screen in some of the screenshots. The dates of the skype calls are also visible and show contact from March 2013 onwards. As there was clearly contact therefore by Skype from at least March 2013 and the respondent's decision was not reached until 25 July 2013 I have considered this evidence in the round as supportive of the appellant and the sponsor's continuing relationship.

In relation to the considerable bundle of phone contact print outs the ECM asserted that the Lycamobile records named the sponsor and gave his telephone number, however the ECM asserted that the number called, 93777520377 was an Afghan number whereas the number provided for the appellant (with the application) was a Pakistan number. It was the appellant's and the sponsor's consistent evidence that the sponsor provided the appellant with a phone, number 93777520377 and that initially they spoke to each other every two or three days and that this then increased to every day and sometimes more than once a day. This is consistent in my findings with the frequency of calls shown in the phone records before me.

The Lycamobile records before me cover September 2012 to August 2013. The sponsor's passport records show that he was in Afghanistan from June 2012 until September 2012. It is plausible in this context that the sponsor may have given the appellant a phone by which to continue to maintain contact. I note that the Lycamobile records do indeed record calls to the Afghanistan number (which on balance on the basis of the consistent evidence before me from both the appellant and the sponsor I accept was the appellant's number) initially every few days in 2012 (and occasionally every day) although I note that the frequency of these calls increased in 2013 with sometimes more than one call a day, but again sometimes calls every two to three days. In the context of a long distance relationship and in light of what I accept on the basis of the evidence before me that sometimes connections can be unreliable in Afghanistan, I do not draw any adverse inference from the fact that the appellant stated in her application that she and her husband spoke every few days whereas the sponsor indicated it was every day. I accept on balance that both were the case at differing times in the relationship. The records before me support the evidence of both the appellant and the sponsor that contact increased as time has gone on.

The ECM also noted that the appellant's application for entry clearance was not made until 16 April 2013, some 20 months after the marriage and was of the view that this cast further doubt on the relationship. As I have indicated I am satisfied that there is more than ample evidence of telephone and other contact between the appellant and the sponsor prior to the date of the ECO decision (and I am satisfied that the evidence of contact after this date is admissible in so far as it indicates that there was a subsisting relationship at the date of decision, which has continued).

In addition, the sponsor gave consistent oral evidence at his wife's appeal before me in relation to the delay in the application. In order to meet the financial requirements the sponsor indicated that he needed to complete his studies (for a diploma) after he returned from the wedding in order that he would be in a position to gain employment at the required financial level. After he completed his diploma he went to Afghanistan to visit his wife for a further 3 months in 2012 (and I accept on balance the oral and documentary evidence including passport stamps that indicates these visits took place) and returned to take up a full time job. The financial requirements were not in dispute and the sponsor has a number of positions, including (as noted above) as a translator for the Ministry of Defence. I accept the sponsor's evidence that once he was earning the required income level he had to ensure that he had at least six months of financial documents. In addition it was his consistent evidence that his wife had to pass the requisite English language test, which took more than one attempt. I accept the sponsor's evidence therefore that the earliest he and his wife were in a position to be ready to submit their application was March/April 2013, and the application was submitted in April 2013. I do not therefore attach any adverse inference from the fact that 20 months had elapsed from the marriage as I am satisfied that the appellant and the sponsor have adequately explained that this time was required in order that they would be in a position to meet all the relevant requirements when the application was made.

In finding that the marriage is subsisting and genuine and that the couple intend to live together permanently, I have considered all the admissible evidence which relates to the circumstances appertaining at the date of decision in July 2013. I am satisfied that there is adequate evidence including in the form of records of telephone and other contacts together with evidence of subsequent visits to Afghanistan by the sponsor. I accept on balance including in the context of the appellant's witness statements relating to this contact and these visits together with the sponsor's credible oral evidence in this regard, that the contact and visits were with and to the appellant.

Although I accept therefore that there was evidence before me that the appellant and the sponsor have had a child in 2015 (including DNA evidence that they both are the parents and of an application for a British Passport for that child) which is arguably evidence of a subsisting relationship in July 2013 which has continued, I am satisfied, for the reasons set out above, that the appeal clearly succeeds without recourse to this evidence.

The Judge of the First-tier Tribunal made a material error of law and her decision to dismiss the appeal is set aside. I substitute a fresh decision to allow the appeal.