Elham Goudey v Entry Clearance Officer Cairo

A subsisting marriage under the Immigration Rules requires a real, continuing matrimonial relationship, rather than the bare legal formality of an un-terminated marriage. Where the parties are legally married and both intend to live together as husband and wife, further proof of mutual devotion is not required.

Telephone-card and billing evidence may corroborate an account of regular telephone contact even though it cannot identify the ultimate recipient. In the absence of countervailing matters casting doubt on the relationship, consistent evidence of contact and intention may discharge the claimant’s burden. A tribunal must assess the evidence actually given, not reject it by imposing its own expectation that the parties should also have corresponded by text or post.

The appellant appealed against the First-tier Tribunal’s dismissal of her appeal from the refusal of entry clearance to join her husband, a British citizen, in the United Kingdom.

The Entry Clearance Officer relied on the appellant’s age and on a failure to establish that the parties intended to live together as husband and wife and that their marriage was subsisting under paragraph 281(iii) of the Immigration Rules. Following R (on the application of Quila and Others) v Secretary of State for the Home Department [2011] UKSC 45, the age ground was no longer maintained. The remaining issue was whether the evidence, principally of telephone contact and remittances, established a subsisting marriage.

1. Appeal allowed. The First-tier Tribunal made a material error of law by assessing the evidence of contact through its own view of how the parties ought to have conducted their relationship.

2. Telephone-card records and the sponsor’s mobile bills could not directly prove that every call was to the appellant. They nevertheless materially corroborated the parties’ consistent evidence that their relationship had been conducted by telephone over a substantial period. It was speculative to treat the absence of text messages as undermining that evidence. The parties were not required also to show written correspondence.

3. Applying GA (“Subsisting” marriage) Ghana [2006] UKAIT 00046, a subsisting marriage is a real relationship rather than a merely formal legal marriage. Where there is a legally recognised marriage and separated spouses both wish to live together as husband and wife, no additional category of evidence is required to establish that the marriage subsists.

4. There were no lies, deception, adverse immigration history, or other countervailing circumstances creating suspicion. Taken as a whole, the evidence established that the parties intended to live together as husband and wife and that the requirements of paragraph 281(iii) of the Immigration Rules were met.

5. The decision was set aside and remade. The appellant’s appeal was allowed and the Entry Clearance Officer was directed promptly to grant entry clearance. The Tribunal left undisturbed the First-tier Tribunal’s conclusion that article 8 would not require admission if the Rules had not been met.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for material error of law, remade the decision, and directed the grant of entry clearance.
• First-tier Tribunal (Immigration and Asylum Chamber): On 13 July 2011, dismissed the appeal against the refusal of entry clearance.