Entry Clearance Officer, Islamabad v Shabana Naz

A claimant must establish on the balance of probabilities that the requirements of the Immigration Rules are met, or that an immigration decision interferes with established family life. A tribunal must decide whether it is more probable than not that a matrimonial relationship is subsisting and that the parties intend to live together as spouses.

Post-decision evidence is admissible where it throws light on a circumstance that was in issue and existed when the entry-clearance decision was made. A post-decision visit may therefore assist in proving that a marriage was subsisting at that earlier date.

An imprecise reference to a low threshold will not be material if the determination, read as a whole, applies the correct civil standard and is supported by sufficient evidence.

The Entry Clearance Officer refused Mrs Naz, a Pakistani national, entry clearance to join her settled husband in the United Kingdom as his spouse. The refusal rested principally on doubts that the marriage was subsisting and that the couple intended to live together permanently.

First-tier Tribunal: Judge Freer allowed the appeal. He accepted evidence about the marriage ceremony, the sponsor's post-marital stay in Pakistan, remittances and telephone contact. He excluded evidence of a later visit on the mistaken basis that Nationality, Immigration and Asylum Act 2002 section 85(5) barred it.

Upper Tribunal: The Entry Clearance Officer appealed, contending that the judge had applied an impermissibly low standard of proof. The central issue was whether that error, and the other criticisms of the reasoning, disclosed a material error of law.

1. Appeal dismissed. The First-tier Tribunal made no material error of law and its decision allowing the claimant's appeal stood.
2. The applicable standard for the primary facts was the ordinary civil standard. The claimant had to show, on the balance of probabilities, that the parties intended to live together as husband and wife and that their matrimonial relationship was subsisting. This was neither the criminal standard nor the reasonable-likelihood standard used in asylum claims.
3. The First-tier Tribunal's references to a relatively low standard and low threshold were unsatisfactory. However, it had initially identified the correct standard. Read as a whole, its positive findings showed that it had decided the facts on the balance of probabilities, not merely on the basis of a reasonable possibility. There was ample evidence to support that conclusion, including the sponsor's stay in Pakistan, remittances, telephone contact and the finding that he was honest, though confused.
4. The First-tier Tribunal had erred in excluding evidence of the sponsor's post-decision visit. Under section 85(5) of the Nationality, Immigration and Asylum Act 2002, post-decision evidence is admissible if it throws light on a circumstance that was in issue and existed at the date of decision. The Tribunal applied DR (ECO: post-decision evidence) Morocco [2005] UKIAT 00038. That error could not assist the Entry Clearance Officer and, if the Upper Tribunal had remade the decision, the additional evidence would have supported the same result.
5. It was unnecessary to allow the appeal separately under Article 8(1) of the ECHR. Success under the Rules meant there was no failure to respect family life; conversely, if the facts did not establish a genuine intention to live together as spouses, Article 8 imposed no positive obligation to admit the applicant.

• Upper Tribunal (Immigration and Asylum Chamber): The Entry Clearance Officer's appeal was dismissed. The decision of Judge Freer was upheld.
• First-tier Tribunal: Judge Freer, in a decision promulgated on 25 July 2011, allowed Mrs Naz's appeal against the refusal of entry clearance as a spouse.