OA213012013

This an appeal against a decision by a panel of the First-tier Tribunal comprising Judge of the First-tier Tribunal J C Grant-Hutchison and Judge of the First-tier Tribunal A M S Green. The panel dismissed an appeal against a refusal of entry clearance by the respondent.

The sponsor gave evidence before the First-tier Tribunal. She explained that she spoke to her husband several times a week. The majority of the calls were conducted via Skype or Viper. These were internet calls and were much cheaper than mobile or landline calls. She did occasionally call the appellant using her mobile phone. She had been using her mobile to demonstrate for evidential purposes how often she telephoned her husband. She also used telephone cards.

The First-tier panel accepted that the sponsor telephoned her husband using a combination of Skype, Viper and her mobile phone. The panel were unable to make a finding, however, as to how often and for how long the sponsor spoke to the appellant using these methods of communication. The panel considered that it would have been possible and reasonably practicable for the sponsor to have produced call log records generated by Skype and Viper to substantiate her evidence that the bulk of her communication with the appellant was conducted by these means but she did not do this.

The application continues that at paragraph 18 of the decision it was recorded that the appellant had provided telephone records showing a total of 28 highlighted calls to the UK number given for the sponsor, together with telephone cards. The panel erred by finding that the telephone bills and evidence of contact through Skype and Viper should not have been taken into account in terms of the test in DR (ECO: post-decision evidence) Morocco [2005] UKIAT 00038 . There was in addition evidence of the sponsor having visited the appellant in Pakistan.

Permission to appeal was granted on the basis that in relation to the subsistence of the marriage it was arguable that the Tribunal had applied too high a standard of proof. In view of the evidence available in the context of an arranged marriage it was arguable that the panel had erred in concluding that a matrimonial relationship did not exist.