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Cite as: [2007] UKAIT 00079, [2007] UKAIT 79

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    MA (rule 51(4) - not oral evidence) Somalia [2007] UKAIT 00079

    ASYLUM AND IMMIGRATION TRIBUNAL

    Date of hearing: 24 July 2007

    Date Determination notified: 03 August 2007

    Before

    SENIOR IMMIGRATION JUDGE P R LANE

    Between

    MA
    APPELLANT
    and
     
    ENTRY CLEARANCE OFFICER - ADDIS ABABA RESPONDENT

    For the Appellant: Ms V Laughton, Counsel, instructed by Messrs Lawrence & Co. Solicitors

    For the Respondent: Ms S Ong, Home Office Presenting Officer

    DETERMINATION AND REASONS

    Rule 51(4) is confined to written evidence and cannot be used to prevent a person from giving oral evidence to the Tribunal. There will rarely be any point in relying on rule 51(4) to exclude a witness statement of a person who is to give oral evidence.

  1. The appellant, a citizen of Somalia born on 25 January 1989, applied on 16 May 2005 for entry clearance to enter the United Kingdom as the spouse of a person settled here (the sponsor).
  2. On 14 November 2005 the respondent refused the appellant's application and the appellant appealed to the Asylum and Immigration Tribunal against that refusal. On 16 March 2006 the appellant's appeal was heard by Immigration Judge Britton, sitting at Newport, who by a determination dated 6 April 2006 dismissed the appellant's appeal.
  3. On 2 May 2006 a Senior Immigration Judge ordered reconsideration of the determination on a number of the grounds set out in the application for reconsideration. The first of these concerned the Immigration Judge's decision to refuse to let one of the appellant's witnesses give evidence before him.
  4. The witness in question was a citizen of The Netherlands, also originally from Somalia, who has since 2003 had been working in the United Kingdom as a bus driver. His witness statement, signed on 13 March 2006, (three days before the Immigration Judge hearing) stated that the witness knew the appellant and his sponsor, having met them in 2000 when the witness was on holiday in Ethiopia. The witness statement continued by stating that the appellant and sponsor were living in a single room. The witness subsequently recognised the sponsor in 2005 at a social gathering. Having asked her about the appellant, the sponsor informed the witness that he was still in Addis Ababa. The sponsor borrowed the witness's mobile phone in order to telephone the appellant.
  5. The statement ended by the witness asserting that he was in no doubt that the appellant and the sponsor were married and that when he had seen them in Ethiopia they were a close and young couple who loved and cared for each other a lot.
  6. Paragraph 15 of the determination records what happened at the hearing:-
  7. "15. Ms Hannant [the Home Office Presenting Officer] objected to [the sponsor] giving evidence, on the day of the hearing as the statement has not been submitted in accordance with the Directions given and the respondent has not been given sufficient time to make checks on the witness. It is noted he is a Dutch national, and I ruled that the respondent has not been given sufficient time for them (sic) to make enquiries. No explanation had been given as to why this statement had not been served in accordance with the Directions given especially as the witness is working for London First."

  8. The Immigration Judge went on to make various adverse credibility findings regarding the appellant's claim. In particular, the Immigration Judge did not believe that the couple had actually been married before 2005.
  9. The grounds accompanying the application for reconsideration asserted that the evidence of the witness had been "absolutely crucial to the main issues in the case" (paragraph 4) and that, in refusing to hear the witness, the Immigration Judge failed to give sufficient consideration to the overriding objective in the Immigration and Asylum Procedure Rules 2003 (sic). He also failed to give relevant reasons as to why he had excluded the evidence. Given that the witness was a Dutch national, the grounds contended that
  10. "It is not clear what enquiries the respondent would have wanted to or indeed been able to make - the Secretary of State would usually carry out checks on witnesses who have at some point in the past made applications to the Secretary of State to ascertain details of their own immigration history as well as to link their files with that of the appellant in question where the appellant and the witnesses are related. This is not such a case as the witness here being a national of an EEC country who is in the UK in exercise of his Treaty rights would not have been required to make any applications to the Secretary of State in order to be able to remain in the UK legally. Consequently, the importance of such of a check appears to have been overstated in this case. There would have been no prejudice to the respondent in calling the witness, on the contrary, the witness would have assisted the court in reaching a timely and just determination in the case."

  11. Although the grounds refer to the Immigration and Asylum Appeals (Procedure) Rules 2003, those were not the Rules in force at the date of the hearing before the Immigration Judge. It is, however, helpful to begin by looking at what would have been the relevant provision of the former Rules, namely, rule 48(5):-
  12. "(5) An Adjudicator or the Tribunal must not consider any evidence which is not filed or served in accordance with time limits set out in these Rules or directions given under rule 38, unless satisfied that there are good reasons to do so."

  13. The Immigration Appeal Tribunal was on several occasions required to consider the scope and effect of rule 48(5).
  14. In MD (Good reasons to consider) Pakistan [2004] UKIAT 00197, the IAT heard an appeal against the determination of an adjudicator who had refused to hear the appellant give evidence in an asylum appeal, on the ground that the appellant's witness statement had not been served in due time before the hearing. The Tribunal found that the adjudicator erred in law in applying rule 48(5), as there was no indication in the determination that the adjudicator had considered whether there were good reasons why he should have considered the evidence in question. In so finding, the Tribunal also had regard to rule 4 of the 2003 Rules, which provided that it was the overriding objective of the Rules, "to secure the just, timely and effective disposal of appeals."
  15. In EA (immigration - Rule 48(5)) Ghana [2004] UKIAT 00227, the IAT found that an adjudicator had correctly applied rule 48(5), in refusing to permit the introduction of late written evidence in an entry clearance appeal, where the appellant was abroad. At paragraphs 9 to 11 of its determination, the Tribunal found that what, in the asylum context, might be regarded as constituting "good reasons" to admit the evidence in question would not necessarily amount to such a reason in the context of an immigration appeal, where "life and death issues do not normally arise" and a fresh claim by the appellant could be made. Furthermore, because the respondent in an entry clearance appeal would be an entry clearance officer, it was less easy for a presenting officer to obtain instructions with regard to late evidence.
  16. In BY (A good reason to exclude) Nigeria [2004] UKIAT 00319, which was also an entry clearance appeal, the IAT found that the adjudicator had not erred in law in refusing to admit evidence served after the requisite time limit. At paragraph 21 of its determination, the Tribunal noted with approval the distinction drawn in EA, observing that "'good reasons' might well be harder to find in immigration cases and than in asylum and human rights cases where the consequences of error can be very grave."
  17. The relevant rule in the present appeal is rule 51(4) of the Asylum and Immigration Tribunal (Procedure) Rules 2005:-
  18. "(4) Where the Tribunal has given directions setting time limits for the filing and serving of written evidence, it must not consider any written evidence which is not filed or served in accordance with those directions unless satisfied that there are good reasons to do so."

  19. As can immediately be seen, there is a significant difference between rule 51(4) and former rule 48(5). Rule 51(4) purports to preclude the Tribunal from considering written evidence, which has not been served in time, unless satisfied that there are good reasons. The difference in wording between the two rules is plainly deliberate. It has the effect that, in a case such as the present one, where a party or a witness wishes to give oral evidence before the Tribunal but a witness statement has not been lodged within the required timescale before the hearing, the person concerned cannot be precluded by rule 51(4) from giving oral evidence. Although it is theoretically possible for the Tribunal, by way of directions under rule 45, to restrict the oral evidence it hears, both the overriding objective in rule 4 of securing that the proceedings are handled as fairly, quickly and efficiently as possible and the general administrative law requirement that Tribunal proceedings should be fair, will make it extremely rare for the Tribunal to be able to refuse to hear a witness who has ostensibly relevant evidence to give. Where the person concerned is the appellant it is even harder to envisage circumstances in which such a course would be valid.
  20. The fact that rule 51(4) is confined to written evidence in practice means that there will rarely be any point in the Tribunal excluding a witness statement of a person who is to give oral evidence. Such a course of action would merely serve to extend the proceedings, by requiring a representative to ask questions in examination-in-chief, which might otherwise have been dealt with by asking the witness to adopt his or her statement.
  21. In the present case, the Immigration Judge not only failed to have regard to rule 51(4) and to note the true ambit of that provision; he also failed to consider whether there might be good reasons for admitting the relevant witness statement.
  22. The fact that rule 51(4) cannot be employed to prevent a person from giving oral evidence before the Tribunal does not in any way compel the Tribunal to accord the same weight to the evidence of a witness whose written statement has arrived too late to enable the respondent to carry out any relevant checks as regards the witness or the substance of his or her evidence, as would be the case where the witness statement has properly been served in accordance with the timescale set by the Tribunal's directions. On the contrary, it is open to the respondent to submit in such a case that the weight to be accorded the witness's evidence should be limited.
  23. On 21 November 2006, the Tribunal (Miss E Arfon-Jones DL, Deputy President of the Asylum and Immigration Tribunal and Senior Immigration Judge P R Lane), having found a material error of law in the determination of the Immigration Judge, was unable to proceed to substitute a fresh decision to allow or dismiss the appeal. Oral evidence needed to be taken. The Tribunal accordingly adjourned the reconsideration to a new date, to be heard at Field House.
  24. The adjourned reconsideration took place on 24 July 2007, when the Tribunal heard evidence from the sponsor and a witness, Mr H. There was also before the Tribunal a bundle of documentary evidence, indexed on its face, submitted on behalf of the appellant under cover of a letter dated 17 July 2007, and a packet of original telephone cards, receipts for money transfers and letters from the appellant to the sponsor.
  25. It was common ground on 24 July that those requirements are to be found in paragraph 352A, which reads as follows:-
  26. "352A. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse or civil partner of a refugee are that:
    (i) the applicant is married to or the civil partner of a person granted asylum in the United Kingdom; and
    (ii) the marriage or civil partnership did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum; and
    (iii) the applicant would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and
    (iv) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and
    (v) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity."
  27. Ms Ong conceded that the appellant and sponsor had been married in Ethiopia in 1999. She also took no issue with the appellant's assertion, that the marriage took place after the sponsor (who has been recognised in the United Kingdom as a refugee) left Ethiopia, which was at that point her habitual residence, in order to seek asylum in the United Kingdom.
  28. The sole issue therefore is whether the appellant, as at the date of decision, intended to live permanently with the sponsor as his or her spouse (and vice versa) and that the marriage was subsisting.
  29. The sponsor gave evidence with the assistance of an interpreter in the Somali language. The sponsor told the Tribunal that she left Somalia for Ethiopia in 1995 and left Ethiopia for the United Kingdom in November 2001. Having received a refugee travel document from the United Kingdom Government in 2003, she was asked why the appellant had waited until 2005 in order to make an application to join her in the United Kingdom. The sponsor said that she did not have her own place until 2005. She confirmed that the marriage registration document at pages 16 to 20 of the appellant's bundle was obtained in Ethiopia, in order to demonstrate that the marriage had taken place. She had taken persons who had witnessed the marriage to confirm to the relevant authorities in Ethiopia that the marriage had indeed occurred.
  30. The sponsor was asked about various photographs in her bundle. Some had been taken in 2003 in Ethiopia, showing her husband, but the rest had been taken in 2005, when she visited her husband in that country. Those photographs had been taken in order to enable the appellant to remember her husband.
  31. The appellant's application form appeared to have had an alteration made to the date of birth of the appellant, whereby 1989 had become 1979. The sponsor confirmed that the appellant had been born on 25 January 1979. The sponsor produced for the Tribunal her own photocopy of the application document, as submitted to the British Embassy, which she had obtained from that embassy.
  32. Cross-examined, the sponsor said that she went to Ethiopia on 20 March 2005 and left on 3 April. She had not brought with her the originals of the photographs in the bundle. Those originals were at home. The sponsor said that she had met the witness, Mr H, in Ethiopia in June 2000. The mother of the witness lived in the same residential building as did the sponsor and the appellant. The sponsor was unsure how many people in total lived in the building, but they included the owners of the property.
  33. The sponsor was unsure at this point how long she and the appellant had lived in the house but she had met the mother of the witness when the mother had moved into the property. The mother had been living in that house for about a month, when the witness arrived to visit his mother.
  34. The sponsor told the Tribunal that the appellant was no longer living in the house nor, so far as she was aware, was the mother of the witness.
  35. Kitchen and bathroom facilities in the property were shared between the occupants. The witness had arrived in June 2000 and stayed for about a month. He lived in the house with his mother. The sponsor named the witness and his mother. The sponsor was unsure whether other persons had visited the witness's mother. She and the mother were not close friends but merely neighbours.
  36. The sponsor said that the appellant left the property in question around the middle of 2003. She had bought her husband a mobile telephone, in order to communicate with him. She could not recollect the telephone number of the appellant's mobile but it was programmed into her own handset.
  37. The sponsor was asked why there was considerable e-mail correspondence (in printed form) from the appellant to the sponsor but nothing from her to him. The sponsor said that she did send replies to the appellant. She could not recall when she began to e-mail the appellant but said that she first started to communicate with him after she had been in the United Kingdom for two months. Prior to that time she had been "busy with my life".
  38. The sponsor said that she knew her husband's date of birth because he had told her what it was. Her solicitor had requested her to confirm that the date of birth and the appellant had therefore written it down. This was at some time in 2005.
  39. The sponsor was asked about page 4 of the Statement of Evidence Form, Part B, which had been completed by the sponsor in connection with her application for asylum. At 2.3 under "date of birth" the sponsor had written "25". Asked what that meant, the sponsor said that it was his date of birth.
  40. Re-examined, the sponsor confirmed that she sent e-mails to the appellant and that those which she had sent were stored on her computer. She had not printed them off because she did not think it necessary.
  41. Mr H gave evidence with the assistance of an interpreter in the Somali language. He said that that he was born in Somalia on 12 December 1974 and is a citizen of the Netherlands. He was referred to the photographs in the appellant's bundle and identified by name the appellant and the sponsor. He confirmed that he had met the couple in 2000 in Ethiopia. The witness's written statement which he adopted, explained how he had met the sponsor again in 2005 in the United Kingdom at a social gathering and had recognised her. He had asked about the appellant and the sponsor had informed the witness that the appellant was still in Ethiopia. The sponsor on that day borrowed the witness's mobile phone in order to ring the access number on her telephone card, which enabled him to speak to the appellant, as there was no credit on the sponsor's "pay as you go" telephone. The witness was "in no doubt that they are married. When I saw them in Addis Ababa I felt that they were a close and young couple who loved and cared for each other a lot. I still believe that to be the case and observed that [the sponsor] was finding life quite lonely and difficult without him here". During the witness's telephone conversation with the appellant, the latter confirmed that he too was "very unhappy and lonely and hoping that he would meet up with his wife again very soon".
  42. Cross-examined, the witness was asked when in 2000 he had gone to visit his mother. He said it was June. He had been in Ethiopia on a visit for approximately a month and during that time he had lived in the same house as was occupied in part by the appellant and the sponsor. He could not recall how many other people lived in the house but his mother occupied one room and the appellant and the sponsor and the appellant occupied another room next to it. The witness's mother had been in that house for quite a while but he never asked his mother how long she had lived there. Nor could he remember exactly when his mother had left Somalia, although he thought it was around 1994 or 1995. He was in contact with his mother in 1998.
  43. The witness was asked about the facilities in the house. He said that toilet and kitchen facilities were shared in common. His mother had her own telephone, which was a land-line. However if someone else telephoned to speak to a person in the house, his mother would allow the occupant to use the telephone.
  44. The witness said that his mother had now returned to Somalia, but he was unsure when that had occurred.
  45. Asked about his contact with the appellant and sponsor, whilst the witness had been living under the same roof, he said that this merely consisted of greeting one another when they saw each other, which would be frequently.
  46. Re-examined, the witness produced his current Netherlands passport, issued on 4 Augusts 2003. In his statement, the witness said that, unlike the position in the United Kingdom where all passports are returned to their holders, the Netherlands' authorities retained expired passports and he could not therefore show stamps in his passport to confirm that he had made a visit in 2000 to Ethiopia.
  47. In response to a question from the Tribunal, the witness said that he and his mother would be invited from time to time into the room which the appellant and sponsor occupied and they would in turn be invited into his mother's room.
  48. In closing submissions, Ms Ong relied upon the notice of refusal, subject to the fact that (as already noted) the respondent accepts that the relevant provision of the Immigration Rules is paragraph 352A. The relevant provisions of the notice of decision are those which stated that the appellant had failed to produce any satisfactory evidence of any regular contact with the sponsor between 1999 and 2001 or any satisfactory evidence that the sponsor had supported the appellant financially on a regular basis. The respondent also noted that the appellant did not know anything about the sponsor's circumstances in the United Kingdom. The various telephone cards produced by the appellant in order to demonstrate contact with the sponsor in the United Kingdom were not such as to show that a subsisting marriage existed at the date of decision. The majority of the money transfers and the e-mails also post-dated the decision. An exception was that at page 94 of the appellant's bundle. The remainder, according to Ms Ong, immediately pre-dated the application and there was nothing from an earlier time. The materials appeared to have been generated at the point when the sponsor went to Ethiopia in order, it was said, to obtain confirmation of her marriage. The e-mails themselves were lacking in quality and were entirely one-sided with nothing emanating from the sponsor. The photographs were curious, in that the photograph of the appellant said by the sponsor to originate from 2004 showed him dressed in the same clothes as in the photographs said to emanate from 2005. The money transfer evidence was also unsatisfactory. The letter of 17 March 2004 from Dalsan International Transfer Services referred to records which were said to show regular remittances on the part of the sponsor but there were no receipts to confirm that.
  49. For the appellant, Ms Laughton relied upon her skeleton argument. No weight could, she said, be placed upon the respondent's assertion that the appellant at interview knew nothing about the sponsor's circumstances in the United Kingdom. No record had been made and produced of that interview. So far as evidence of contact was concerned, this went back to March 2005 and could be used as evidence of intervening devotion. The e-mails had to be understood in the context of the couple communicating on the telephone.
  50. It was, according to Ms Laughton, striking that the sponsor had been able to remit to Ethiopia regular payments of $100 for the appellant, notwithstanding that she was on income support in the United Kingdom. This was extremely indicative of an existing marriage, since it was difficult to conceive why the sponsor would do this, other than out of affection for her husband.
  51. In reaching a determination in this case the Tribunal has considered all of the evidence, both oral and written, and has reviewed that evidence as a totality. So far as paragraph 352A is concerned, the burden of proof is on the appellant to show on the balance of probabilities that he meets the requirements of the Rules.
  52. The Tribunal acknowledges that the appellant and the sponsor have been married and that there is no reason to assume that the marriage does not exist in a legal sense. The Tribunal finds, however, having regard to all the evidence, that as at the date of decision the appellant has not shown on balance that, at the date of decision, the marriage was subsisting in the sense that it was a genuine emotional relationship, where each of the parties intends to live permanently with the other.
  53. The Tribunal bears in mind the need to be sensitive to cultural differences, in assessing the evidence of those who do not originate from the United Kingdom or, indeed, Western Europe. That said, the Tribunal has not been given any evidence to show that cultural (or, indeed, any other) reasons could explain why the sponsor did not seek to make contact with the appellant for several months after she arrived in the United Kingdom on the basis that she was "busy with my life". Similarly, the Tribunal does not consider that the appellant's explanation for the delay in the application being made, namely, that she was without suitable accommodation, was an inadequate one. There is no evidence to show that the sponsor was living in circumstances in the United Kingdom during the period between 2002 and 2005 which effectively precluded the appellant from living with her, if admitted to the United Kingdom; nor is there evidence to show that the sponsor was unaware of the steps that would be taken by those responsible for the provision of public housing to ensure that she and her husband could live together, following a successful application for entry clearance.
  54. It was significant that the sponsor indicated that she only became aware of the appellant's date of birth after her solicitor had requested her to ascertain that information. The sponsor was also vague as to when this had happened; merely believing that it was at some point in 2005. That the sponsor had been unaware of her spouse's actual age for some six years after their marriage is not supportive of a claim to be in a genuinely subsisting marital relationship. This point is underscored when one examines Part B of the sponsor's Statement of Evidence Form, produced when she came to the United Kingdom and claimed asylum, where the appellant's date of birth is given merely as "25".
  55. Whilst the Tribunal accepts Ms Laughton's submission that the nature of the communications between the appellant and the sponsor is such that evidence of such communications may, in the nature of things, no longer be extant for much of the period between the time when the sponsor decided to make efforts to resume contact with the appellant and late 2005, the Tribunal does nevertheless consider that something more could be expected to subsist if the relationship had been of the kind asserted. There was no adequate explanation for the absence of documentary evidence regarding email messages from the sponsor to the appellant. So far as money transfers are concerned, the only receipts which have been produced post-date the decision and the Tribunal does not consider that they relate to circumstances as at that date (section 88(5)(b) of the Nationality, Immigration and Asylum Act 2002). The letter of 17 March 2005 from Dalsan International Transfer Services is highly unsatisfactory. It is unclear what the legal nature of that body might be. The brief letter asserts that records show that the sponsor "has been one of our customers from Sept 2003 to this date" and that she "usually remitted funds to her husband". The letter ends by saying that the writer is "able to confirm from records, that [the sponsor] remitted $100 to her husband regularly on a monthly basis up to and including last month (February 2005)". For anyone genuinely in the business of providing financial services such as money transfers, the substance and tone of the letter are frankly highly peculiar. One would have expected at least that the writer would have set out a schedule of dates and sums transferred if, as is asserted, Dalsan International Transfer Services held records thereof. The expression "usually remitted funds to her husband" also raises the question of whether the sponsor made transfers to other persons abroad. That in turn brings the Tribunal to the issue of the source of the monies used by the sponsor. It appears that at all material times the sponsor has been in receipt of state benefits in the United Kingdom. Indeed, Ms Laughton asked the Tribunal to find that a genuine marital relationship must exist because it would otherwise be difficult at best to see why a person subsisting on state benefits would make such sacrifices. However, without evidence of the income and outgoings of the sponsor it is not possible to make such an inference.
  56. Such written communications between the parties as we have are largely stilted and lack the appearance of being genuine. For instance, on 9 November 2005, the appellant apparently wrote to the sponsor in the following terms:
  57. "Hello, sweet angel I am doing well and hope you the same during this difficult time wish you a better life at all times.

    I really do worry about you because we have not seen each other for some time. I would like to reunite with you and have better life sweet.
    If god accepts we will meet in the United Kingdom in the near future.
    May god bring us together?"
  58. There is in general an absence of enquiries about the sponsor's life and experiences in the United Kingdom, just as, with one or two minor exceptions, the appellant gives the sponsor no information about what he is doing in Ethiopia. Similar problems arose in the oral evidence of the sponsor, who was somewhat vague on the subject of when the appellant had finally left the place in which he had been living when she visited him in Ethiopia in 2000 and had met the witness. Although she said she had the appellant's telephone number programmed in her own telephone handset, it was noteworthy that the sponsor could not say what that number was. There was considerable vagueness in the evidence of both the sponsor and the witness as to how many other people were living in that house. Although the Tribunal noted, and gives weight to, the extent to which the evidence of the sponsor and the witness coincided as regards the use of shared facilities and the dates of the witness's visits to his mother in the house, it is noteworthy that the sponsor had no idea of whether other people had come to visit the mother, notwithstanding that any such visitors must have had the same or at least similar visibility, so far as the sponsor was concerned, as the witness who, according to the sponsor and the witness, was no more than a person with whom the sponsor passed the time of day, when she encountered him.
  59. The witness's evidence was also unsatisfactory, in that it had apparently never occurred to him to ask his mother how long she had been living in the house in question. Nor was he aware of when his mother had left Somalia in order to go to Ethiopia, merely believing that it was sometime in 1994 or 1995. Furthermore, the witness was "not sure" when his mother had left the house in Ethiopia in order to return to Somalia. In view of these matters, the Tribunal is unable to place any significant weight on the witness's claim that the appellant and the sponsor were emotionally close or that the sponsor has demonstrated an emotional need to be reunited with the appellant in the United Kingdom.
  60. The photographic evidence does not materially assist the appellant. Whilst the Tribunal accepts that the sponsor is featured in several of the photographs with a man said to be the appellant, it is curious that the appellant is wearing identical clothing in the photograph said to be from 2005 as in photographs said to be from 2004. Even the angle of the knot in his tie is the same.
  61. The originals and photocopies of phone cards also do not carry the appellant's case materially forward. They do not show to whom the cards belonged nor, obviously, how they were used. Given the general difficulties that exist with the rest of the evidence, the Tribunal does not accept the assertion that the unsatisfactory nature of the written communications is explained by the fact that the parties communicated more fully and more emotionally during their telephone conversations.
  62. In conclusion, the Tribunal finds that the evidence before it is insufficient to show on balance that the appellant meets the requirements of paragraph 352A of the Immigration Rules. So far as article 8 is concerned, the appellant's case founders on the first or, if not that, then certainly the second of the five questions of Lord Bingham set out at paragraph 17 of the opinions in Razgar v Secretary of State for the Home Department [2004] UKHL 27, suitably adapted to reflect the fact that this is not a case of removal but of refusal to grant entry clearance: namely, (1) is the refusal an interference with the exercise of the appellant's right to respect for his family life and (2) if so, will the interference have consequences of such gravity as potentially to engage the operation of article 8? On the Tribunal's findings there has not been shown to be an intention to live together. In any event, however, the United Kingdom's obligations under article 8 to facilitate family reunion are not to be equated with a right for married couples and others to compel the United Kingdom to give effect to their choice of residence (Konstantinov v The Netherlands (Application no. 16351/03) ECtHR (Third Section), 26 April 2007).
  63. Ms Laughton's skeleton argument contains the assertion that a refusal of entry clearance would result in the permanent separation of the sponsor and the appellant, since the appellant is said to be living in Ethiopia illegally and "as such the UK cannot expect the sponsor to break another country's laws by going to live there illegally as well". There is no evidence to substantiate that assertion. Even if the appellant is living illegally in Ethiopia, a fact of which the Tribunal is not satisfied on the evidence before it, he has been in that country for several years, during which time he has married. There is no suggestion whatsoever that he leads any form of clandestine existence. Given that Ethiopia is a party to the Geneva Convention of 1951, there has been no explanation advanced as to why (if such be the case) the appellant has not sought refugee status in Ethiopia. Furthermore, there is an absence of evidence to show that the sponsor would be living illegally if she went back to live in Ethiopia. Although her SEF alleged difficulties in that country, prior to her coming to the United Kingdom, the Tribunal has not been shown anything to indicate that those assertions played a part in her being given refugee status in this country or that they were the subject of positive findings of fact by an adjudicator. In any event, the sponsor has, by her own admission, returned to Ethiopia for several weeks in 2005. No evidence has been presented to show that the Ethiopian authorities would be reasonably likely to refuse the sponsor admission in order to resume living with the appellant.
  64. The original Tribunal made a material error of law and this Tribunal accordingly substitutes for it a decision of its own, dismissing the appellant's appeal with reference to the Immigration Rules and under the ECHR.
  65. Signed Date: 31 July 2007

    Senior Immigration Judge P R Lane


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