UI2022001799 & UI2022001808

I do not know when Mr Akhtar applied for leave to enter or remain in the UK. I do not even know when he married Nasreen Akhtar. (I find that it is striking that this information is not in any of the witness statements). I have not seen a local/Punjabi marriage certificate in which I would have been able to read dates, and only have an English language one which says that it is "certified" from the original record. There are two stamps on it from the "commissioner" where the date of the stamp appears to have been amended from September to July 2012 - from "09" to "07" (although it is also claimed at box 24 that the registration of the marriage was on 01.04.2012). Overall, I find that (i) I do not know when Mr Akhtar applied to enter the UK and (ii) I am not satisfied that he was even married to Nasreen Akhtar on 9 July 2012. In so finding, I apply the law in the case of Tanveer Ahmed [2002] UKAIT 004393.

Therefore, I am satisfied that paragraph 301 of the Immigration Rules does not apply.

There is no dispute that the judge was correct to apply paragraph A280(f) as she does at [16]. The provision is clear; if the appellants could provide evidence sufficient to discharge the burden of proof that their father had been 'granted limited leave to enter or remain or an extension of stay following an application made before 9 July 2012' then paragraph 301 would apply to them. However, the judge's clear finding is that the burden of proof had not been discharged. At the Upper Tribunal initial hearing, Mr Bates, for the Secretary of State, was able to use the Home Office database to determine that the father had been granted entry clearance following an appeal in 2013. The problem for the appellants is that even that limited information had not been available before the First-tier Tribunal. If the appellants' representatives had intended to raise paragraph 301 at the First-tier Tribunal hearing, then they should had made sure that there was adequate evidence to prove to the judge that the paragraph applied. The judge's approach to the question posed to her by Mr Timson is, in my opinion, unimpeachable whilst the grounds of appeal are, on this issue, weak; at [4], the grounds refer to paragraph 301 but offer nothing more than disagreement with the judge's findings ('the judge could have given reasonable weight to the fact that the father ... has been in the United Kingdom since 2013 and living with his wife who is a British citizen.') The fact is that, faced with unsatisfactory documentary evidence from Pakistan and in the absence of clear evidence of the sponsor's husband's immigration history which could easily have been provided, the judge chose not to give much weight to the claim by the sponsor and her husband that he had been living together in the United Kingdom since 2013. The judge did not err in law as asserted in the grounds or at all.

The remaining grounds are without merit. Ground 1 complains that the judge failed to give weight to evidence of the sponsor's self-employed income. However, as Mr Bates pointed out, the documentary evidence provided from the Halifax did not clearly show the claimed income being paid into the sponsor's account. Moreover, the judge was entitled to take account, in this Article 8 ECHR appeal, of the fact that the evidence produced by the sponsor did not meet the requirements of the relevant immigration rule. Ground 2 raises the matter of the best interests of the appellants and whether these had been considered by the judge. It is the case that the judge does not make specific reference to best interests but again the judge drew attention to the paucity of evidence regarding the appellants. At [25], the judge notes that the father's reasons for bring two children with him to the United Kingdom whilst leaving the appellants in Pakistan were never made clear whilst at [25] the judge observes that the had 'scant information about the recent living arrangements of the appellants in Pakistan'; other than being aware that the appellants were soon to reach adulthood, the judge had no material upon which to base a best interests assessment. I agree with Mr Bates that the absence of a detailed best interests analysis does not vitiate the judge's decision as such an analysis would, on the evidence available, have made no difference to the outcome.

Ground 6 asserts that the judge's reasoning is irrational. This challenge has no merit. It was open to the judge to take all relevant circumstances into account. These circumstances included gaps in the evidence which may have explained the nature and depth of the relationship between the father and the appellants, such as an explanation as to why the appellants had been left in Pakistan for years before an application had been made for their entry clearance. Mr Timson sought at the initial hearing to expand this ground to include criticism of the judge's reference to the demeanour of the sponsor and the father at the First-tier Tribunal hearing. At [28], addressing the sponsor's relationship with the appellants, the judge wrote at [28] that, 'I was left with the overall impression that the business of bringing the appellants to the UK was very much the "business" of Mr Akhtar, and that Mrs Akhtar was being presented to the court as window dressing. I am not satisfied that she was consenting, not least because she was very reluctant to answer questions from Mr Timson and I found her body language hostile to the appeal. At the same time, I was firmly of the view that she was not suffering any mental problem that undermined her ability to engage with the Tribunal or her capacity to make decisions.' In my opinion, those were observations which were entirely available to the judge given the sponsor's evident detachment from the proceedings and, indeed, the appellants themselves. I do not accept that the judge acted unfairly or unacceptably.

In the circumstances, I dismiss the appeals.