ZB & Anor v The Entry Clearance Officer, Islamabad [2009] UKAIT 40

[2009] UKAIT 00040

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Heard at: Bradford Date of Hearing: 5 September 2008

Before

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal

Senior Immigration Judge Roberts

Between

ZBAppellant

HBAppellant

Entry Clearance Officer, ISLAMABADRespondent

Mr G. Mohammed of Oaks Solicitors for Appellant

Mr D. Hunt-Jackson, Home Office Presenting Officer for Respondent

A marriage that is otherwise valid is not rendered void by demonstration of the incapacity of one of the parties at the time of the ceremony; but a marriage that is valid may, in special circumstances (which may or may not relate to capacity) not be entitled to recognition as such.

DETERMINATION AND REASONS

Date 2009-09-25

[1]The first appellant is a citizen of Pakistan and the second appellant is her infant son. They appeal to the Tribunal against the decision of the respondent on 16 April 2007 refusing them entry clearance to the United Kingdom as the wife and son of the sponsor.

[2]The grounds for the refusal, which we treat in more detail below, were that the respondent was not satisfied that the first appellant and the sponsor intended to live together permanently as husband and wife and that the marriage was subsisting; or that either of the appellants would be maintained and accommodated adequately without recourse to public funds. At an earlier hearing in relation to this appeal, the respondent’s representative indicated that she proposed in addition to argue that the marriage between the appellant and sponsor was either not valid or not entitled to recognition in the United Kingdom. The hearing did not, as a result, proceed on that occasion. Mr Mohammed on behalf of the appellants raised two principal objections to the respondent’s course of action. He said, first, that the respondent was not entitled to raise a substantial new issue so late, and, secondly, that he suspected that the Tribunal was tolerating conduct in the management of appeals by the respondent that it would not tolerate in the case of an appellant. We fully understand Mr Mohammed’s concern in raising those points, but we are quite satisfied that neither of them has any substance. So far as concerns the first, it is not right to say, as Mr Mohammed does in his letter, that the decision of Glidewell J in R v Immigration Appeal Tribunal ex parte Kwok on Tong [1981] Imm AR 214 has been superseded. On the contrary, it is clearly good law, and has recently been re-emphasised by the Tribunal in RM

[2006] UKAIT 00039

. Those are not the only authorities for the proposition that the respondent’s notice of decision is not a pleading: provided that the appellant is given a proper opportunity to deal with any new points, it is open to the respondent to open new points, and the Tribunal is obliged to deal with them, because it cannot allow an appeal against a non-discretionary decision unless satisfied that the decision was ‘not in accordance with the law (including Immigration Rules)’: those are the words of s 86(3)(a) of the Nationality, Immigration and Asylum Act 2002.

[3]The second point is more troubling. It is fair to say that at the hearing before us Mr. Mohammed did not press it. Certainly the Tribunal as presently constituted for the purposes of this appeal would be surprised to hear that the respondent or her representatives consider that they are treated with greater tolerance in breaches of the Rules than appellants are. It would need a great deal more than a simple assertion to establish that proposition, and it is in any event not relevant to deciding this appeal. We say no more about it: it is clear that the appellants need to deal with the points raised by the respondent at various stages, and they have now had adequate time to deal with them. We should say at this point that both representatives before us agreed that we should, following the conclusion of the hearing, proceed to determine the appeal on the basis of the evidence available to us, all of which is in writing.

[4]The sponsor is severely disabled. There is evidence about the level of his disability, to which we shall refer in due course. He was born in February 1980, and so at the date of the decision against which the appellants appeal he was 27 years old. He and the first appellant are second cousins. He went to Pakistan for about ten weeks in the Spring of 2003, during which time it is said that he and the first appellant became engaged to be married. He went again on 4 May 2004. The sponsor and the first appellant went through a ceremony of marriage on 9 May and the sponsor remained in Pakistan until 8 June. The second appellant was born to the first appellant on 1 March 2005. The appellant has been to Pakistan again since the decision under appeal, remaining for about a month.

[5]The notice of refusal in this case is quite full, and Mr Mohammed did not suggest to us that it is inaccurate in recording the evidence as it was before the Entry Clearance Officer. The major part of it is as follows:

“You married your sponsor on 09.05.04 and I note that your sponsor stayed in Pakistan until 08.06.04 which is the time you saw him. You claim that since your sponsor has been in the UK you have remained in regular contact via telephone, every second or third day between an hour and two hours at a time (Q13). Given the distance between you and your sponsor it should be reasonable in a subsisting and genuine relationship for an open discussion to take place about your lives, history and backgrounds. The fact that you demonstrated little knowledge of your sponsor does not correspond with the assertion of frequent contact nor does it reflect a subsisting and genuine relationship. At interview you were asked about your sponsor’s medical condition; however, you displayed a significant lack of knowledge in this regard. As stated in his Doctor’s letter dated 08.02.07, your sponsor suffers from “…Misocephaly [swelling of the brain] with severe mental retardation as well as physical disability. He also has severe learning difficulties and attend day care centre because he is totally unable to look after himself physically”

. I also note your legal representatives in the UK have stated that your sponsor has limited comprehension and communication. Given the magnitude of his disability and the effect it has on his life it should be reasonable to expect that you would have some knowledge regarding this. When you were asked about your sponsor’s illness, you merely stated he was disabled (Q16). You were then asked to explain in what way he was disabled, to which you stated that “he has weakness in his arms and also mentally sometimes he is fine” (Q17). You also stated that he could change his own clothes and take food (Q28) however this goes against the diagnosis of his doctor as mentioned in his letter dated 08.02.07. You were unable to correctly state what care and medication he receives (Q28-Q29). When you were asked how you maintain such contact with your sponsor when he has limited communication skills you admitted that you actually speak to your mother-in-law and not your husband via telephone (Q13 & Q24-Q25). At interview you were also given the opportunity to tell us what you know about your sponsor and his life in the UK that was not related to his illness, however you were unable to answer these questions (Q36-Q37). You were then specifically asked about your sponsor’s likes, hobbies and interests. You stated that he liked to play and had no interest (Q38). You were asked about what you and your sponsor had discussed about the area he lives in the UK and where you and your son propose to reside. You were only able to tell us that he had a double storey house (Q41-Q43). Given that you have been married to your sponsor for almost three years, such a paucity of knowledge does not correspond with the assertion of frequent contact. 281 (iii) HC 395. You were also asked at interview to tell us why your parents agreed with this marriage for you. You stated this was because you liked your sponsor (Q44). You were then asked to tell us what it was you liked about him and the only reason you have was that “his eyes are beautiful” (Q45). You were unable to explain how you and your sponsor have maintained a relationship while he has been in the UK given that you are unable to speak to him and only speak to your mother-in-law (Q26). Your response to this question was that “He [sponsor] was our relative and that is why this all happened.” I have taken into consideration the fact that your marriage was traditionally arranged and that you and your sponsor are related outside marriage. However, these points in your favour do not outweigh my doubts concerning your intentions to live together, given your lack of knowledge regarding your sponsor and lack of intervening devotion. 281 (iii) I acknowledge that you and your sponsor have a child together born 01.03.05. However, I have to take into consideration that your sponsor has not sought to visit you or the child since he left Pakistan on 08.06.04, one month after the wedding. I consider it reasonable that, were you genuinely intending to live together, he would have stayed in Pakistan with you for more than just one month, given that he has no employment commitments or would have returned for at least a visit. Furthermore you have also failed to provide a credible explanation as to why it has taken you almost three years after marriage to submit to this application to joining your sponsor, other than “I submitted the case but it got late” (Q36). I do not consider this to be the reasonable conduct of a couple who genuinely intend to live together. 281 (iii) HC 395. My doubts regarding the subsistence of your relationship have been compounded by your lack of knowledge regarding your spouse’s ill health. I consider that were you in a genuine and subsisting relationship you would be better aware of his medical problems. I accept that without being informed of these you cannot possibly know however this then calls into question your spouse’s intentions. If he considered this to be a genuine marriage I would expect him or his family to have discussed his medical problems with you. 281 (iii) HC 395. For all the reasons stated above I am not satisfied that each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting. 281 (iii) HC 395 Letters from the Department of Work and Pensions (DWP) show that your sponsor is in receipt of £91.85 Income Support per week and £76.65 Disability Living Allowance (DLA) per week. … Your sponsor is unable to work for the foreseeable future due to his illness and there is no indication that you hold any qualifications, experience or linguistic ability to obtain employment in the UK. On a balance of probabilities it is unlikely that you and your spouse will be able to maintain yourselves, without recourse to additional public funds, shortly after your arrival in the UK.

(v) HC 395”

[6]The notice of decision goes on to deal briefly with Article 8. The numbers in bold type at the end of each paragraph are, of course, references to the paragraph numbers in the Statement of Changes in Immigration Rules, HC 395. The notice of decision in respect of the second appellant is shorter. It records the fact that the first appellant’s application has been refused. That is one ground of refusal; the other is again maintenance.

[7]We must now set out the medical evidence. The Entry Clearance Officer had sight of a letter from the sponsor’s GP dated 8 February 2007. It reads as follows:

“This patient suffers from Misocephaly with severe mental retardation as well as physical disability. Has severe learning disabilities and attend day care centre because he is totally unable to look after himself physically.”

[8]The only other medical evidence is from another doctor at the same address. It is in the form of answers to questions posed by the appellants’ solicitors, asking for a medical report “to support the patient’s case for his spouse’s visa entry to the UK”. The questions posed, and the doctor’s answer to them, are as follows: Q. (a) What illness and/or condition(s) the patient suffers from? A. Learning difficulties due to congenital cerebral palsy diagnosed in 1996. Q. (b)What are the mental and physical effects of the illness/condition(s)? A. [He] is physically fit. His mobility is normal and he eats and drinks independently. The learning difficulties he exhibits do not affect his physical health. He is mentally co-operative, he listens carefully and understands and agrees to actions appropriately. He communicates his needs well to his mother and brother who both understand him well in return Q. (c) Are these curable and if so is the patient under treatment? A. His condition is not curable and he is not on any regular medication. He attends a Day Care Centre regularly. Q. (d) Is the patient receiving any prescribed medication and side effects of any such medication? A. His is not on any regular medication Q. (e) The patient’s ability to undertake the following: ― Personal hygiene and cleansing ― Physical function ― Ability to clothe himself ― Take food and drink by himself ― Prepare food for himself ―Ability to communicate effectively A. He needs care from his mother and brother with regards to his daily routine including showering and shaving. He can use the toilet to passport [sic] urine and stool independently. He can dress himself but needs help with some fine motor skills. He is able to eat and drink independently. He is able to communicate effectively using spoken language and some sign language. Q. (f) Whether the patient requires day and/or night care from another person? A. The patient does need day and night care from another person. Q. (g) The patient has fathered a child with his wife in Pakistan; in which case please report on whether the patient has normal adult sexual urges and whether he is able to understand these and therefore control the urges; or is his body simply driven by natural urges? A. [He] married in Pakistan about 5 years ago [Ziatoon Bibi] and fathered a child [Hamza Ali Bux] on 1.3.04[sic]. His wife and child remain in Pakistan and he has telephone contact with them. He exhibits normal sexual urges and is able to understand and control them well. Q. (h) The consequences or effects of short term/long term denial of sexual intercourse on the patient? A. We have not discussed the consequences or effects of short/long term denial of sexual intercourse but he tells me that he misses his wife and child. The doctor adds a rider as follows:

“It would be very helpful for his wife to come to the UK to help with his care and physical well being and I strongly support the application for the family to be reunited.”

[9]There is also a new witness statement from the first appellant. She says that the sponsor has the mind of a child but the body of a man. He needs looking after as he cannot do most things by himself. His mother looks after him and he lives with her in her house. His mother also looks after the sponsor’s sister, who is even more severely disabled.

[10]The first appellant says that the marriage arose from a proposal by the sponsor’s mother to her father, arising out of the family relationship. She was happy to marry the sponsor “as I liked him. He is nice and gentle and peaceful and a better husband than most. I would have a peaceful life with him and do not mind looking after him.” She points out that the sponsor’s mother will not be able to go on looking after the sponsor and his sister all their lives and so the sponsor’s mother wanted a wife for him. The first appellant says that when her husband is in Pakistan he stays with her. She cooks and cleans and washes for him. She also has to bathe him and help him dress. “He sleeps with me nearly every day when he is here. It is very difficult for him and for his mother when I am not with him. I do not think that this is good for his health.”

[11]The first appellant says that her husband cannot talk much. He listens a lot more and likes to listen to her. He sometimes can say a few words but mostly says her name and that of their son. “He loves us both very much”. When he is in the United Kingdom the first appellant says that he phones her regularly about two to three times a week. Mostly she talks and he just listens and says her name and the second appellant’s name over and over again. The first appellant says that the sponsor “misses us very much”. She says that mostly she ends up talking to his mother who then tries to tell the sponsor what she has said.

[12]The first appellant confirms that she has never been to school or work. She cannot read or write. She has essentially no earning capacity, and could not go out to work as she would need to stay at home to look after the sponsor and her son. She says that she worries about the second appellant. She would not be able to send him to school in Pakistan because schools in Pakistan have to be paid for and the school is a long way from her home. She says that the appellants need to be with the sponsor as a family.

[13]Paragraph 281 of the Immigration Rules requires for present purposes, at sub-para (i) that the first appellant and the sponsor are married; at sub-para (iii) that each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting; and at sub-para (iv) that the parties will be able to maintain themselves and any dependents adequately without recourse to public funds”. For the second appellant the Rules are in para 301. In the present case the second appellant cannot meet the requirements of para 301 if the first appellant is not granted entry clearance, but in any event sub-para 301(iva) requires it to be established that he could and would be maintained adequately by his parents without recourse to public funds.

[14]It is convenient to look at the requirements under the Immigration Rules in reverse order. We therefore begin with maintenance. Not surprisingly in the light of his disabilities the sponsor receives Disability Living Allowance as well as Income Support. As a result the funds he receives may be more than would be paid to a couple with a dependant child who had to exist on income support alone. And we accept that as Disability Living Allowance is not means tested it may be that it is available for the maintenance of other members of the family. In this case as in any other, however, it is for the appellants to establish that their maintenance will be adequate. There is no suggestion that there will be income available to them other than that which is presently paid to and for the sponsor. It is clear that his needs are very great, and it is not suggested that anything is being paid for at present which will not need to be paid for if the appellants are in the United Kingdom. On the basis of the material available to the Entry Clearance Officer and to us it is impossible to say that the amount of funds presently being paid to the sponsor for himself would be adequate for the maintenance of him, the first appellant and their small child. Indeed, it appears to us highly likely that the reverse is the case.

[15]Mr Mohammed emphasised to us that he did not concede that the appellants could not meet the maintenance requirements of the Rules, but that he recognised that there were difficulties. He was right to do so. Our decision is that the appellants have, by a very considerable margin, failed to demonstrate that they could be maintained adequately without recourse to public funds.

[16]The next question is whether, assuming the first appellant and the sponsor to be married, each of them has (or rather, had at the date of the decision) an intention to live permanently with the other as husband and wife. We have already set out the Entry Clearance Officer’s concerns, which we share. There has been another visit since the date of the decision, but the position at the date of the decision was that the first appellant knew very little about the sponsor despite the fact that they had by then been married for a considerable time and claimed to have been in frequent and lengthy contact on the telephone. Even allowing for her own lack of education she also appeared to know very little about the sponsor’s disability, whether from him or from his mother. Her witness statement makes it clear that she sees advantages in bringing her son to the United Kingdom, but that is rather different from a wish to be with the sponsor and, moreover, to be with him as his wife. The requirements of sub-para 281 (iii) are not met simply by a wish to share a house, nor by a wish to look after the sponsor, or a wish to alleviate the care responsibilities imposed upon the sponsor’s mother by her relatives. Even if it were to be accepted that the first appellant has an intention to live with the sponsor, we do not think that it can be said that the level of interest she has shown in him so far, and the reasons she gives for wanting to be with him really establish that she wants to be with him as his wife.

[17]In addition, however, it needs to be established that the sponsor wants to live with the first appellant as her husband. In many cases there is no particular need to inquire into the matter. Here, however, we are told that the sponsor has severe physical and mental disability and learning disabilities. He may or may not have a sexual urge, but we know nothing of his approach to the status of being a husband. Nor is there any evidence of his ability to form an intention to live permanently with anybody, whether as a husband or not. The only evidence that is available simply raises a doubt about those issues.

[18]For these reasons we cannot be satisfied that, at the date of the decision or subsequently, the appellant met the requirements of para 281(iii).

[19]The final question relating to the Immigration Rules is whether the first appellant and the sponsor are in fact married; and if they are, whether the marriage is entitled to recognition in English law. That was the point which was raised by the respondent’s representative at the earlier hearing. Reference was made to the recent decision of the Court of Appeal KC and NNC v City of Westminster Social and Community Services Department

[2008] EWCA Civ 198

. As we indicated in the course of argument, the facts of that case are not the facts of the present appeal: there is no doubt that the subject of the Court’s concern in KC was more severely disabled than the sponsor appears to be. There are, however, certain similarities; and it cannot be suggested that the applicable law is anything other than that set out by the Court of Appeal in KC.

[20]The underlying question relates to the mental capacity of the sponsor. The ceremony in May 2004 took place in Pakistan, according to the law of Pakistan, and there is no reason to suppose that any provision of the lex loci celebrationis encroaches upon its validity. The first appellant must be domiciled in Pakistan, and there is in any event no doubt about her capacity. The sponsor was born in Dewsbury and must be regarded as having, and retaining, a domicile of origin in England and Wales. His capacity to marry is governed by the law of his domicile: if there were any doubt about that proposition as regards mental capacity, the decision of the Court of Appeal in KC to that effect is clearly binding on us. The level of mental capacity required was set out after a review of the authorities, by Singleton LJ (with whom Birkett LJ and Hodson LJ agreed) in In the Estate of Park

[1954] P 112

. The party in question “must be mentally capable of appreciating that [the contract] involves the responsibilities normally attaching to marriage” [at p 127]. That is not a high test of mental capacity, but once the question is raised it is clearly for the appellant to deal with. In the present case it is difficult to see how, on the evidence, anybody could be satisfied that the sponsor had or has such capacity. Lack of capacity does not render a purported marriage void, however. By s 12(c) of the Matrimonial Causes Act 1973, lack of consent by either party in consequence of unsoundness of mind renders a marriage voidable, and it remains valid until any decree of nullity is pronounced. So lack of capacity itself would not mean that the ceremony of 9 April 2004 failed to have the effect of making the sponsor and the first appellant husband and wife.

[21]But at this point some of the considerations taken into account by the Court of Appeal in KC do become relevant. Given that the ceremony was formally valid and that lack of capacity does not of itself avoid the marriage, is the marriage entitled to recognition in an English Court? As that was the question answered by the Court of Appeal in KC, it must be taken to be the question asked by the respondent’s representative in submitting KC for the attention of the Tribunal. Although the sponsor is not as severely disabled as was the subject of the court’s attention in KC, there are similarities. One of the factors which appears to have had most influence on the court in KC was that the husband was, by reason of mental incapacity, incapable of giving consent to any sexual act. It followed what would be otherwise ordinary congress between him and his wife would amount to a criminal offence. The evidence adduced on the appellant’s behalf in this appeal, following the raising of the question by the respondent, is very far from indicating that the sponsor in this appeal is capable of giving the necessary level of consent to sexual contact. He may be or he may not: insofar as we have to decide the matter, we conclude that it has not been established in the appellant’s favour. We would therefore be inclined to hold, on the basis of that evidence, that the appellants have not established that the marriage between the sponsor and the first appellant is, albeit valid, entitled to recognition in this country. It is contrary to public policy to recognise as valid a marriage which is voidable for lack of mental capacity of one of the parties, and in which the normal incidents of marriage would amount to the commission of a criminal offence by one of them.

[22]As we indicated, our decision does not depend on that issue. The appellants have not established either that the parties to the marriage at the date of the decision the intention to live together permanently as husband and wife, or that adequate maintenance would be available. We have given our view on the marriage itself because the issue was canvassed before us.

[23]We now turn to human rights arguments. Mr Mohammed told us that he regarded the Article 8 arguments as now being the primary arguments upon which the appellants relied. As we have said, the Entry Clearance Officer dealt with them briefly. Before us the respondent acknowledges, of course, the relationship between the appellants and the sponsor. It is argued on the respondent’s behalf that the case is exceptional. Mr Mohammed’s submissions were based largely on the needs of the sponsor’s family in the United Kingdom rather than on the appellants’ rights to be with them. He argued that no useful purpose was served by enforcing the Immigration Rules in this case: money would be saved if the sponsor and his sister were in due course looked after by the appellants, rather than by state agencies.

[24]The features of the relationship between the appellants and the sponsor have an impact on the proportionality of applying the Immigration Rules in the appellants’ case. The question is whether they have shown that proportionality requires that they be admitted to the United Kingdom despite their inability to comply with the Immigration Rules. In making that assessment it seems to us that there is very little on the side favouring admission, and a great deal on the other side. We take into account everything of which we know, but it seems to us that a number of factors are particularly important. First, as pointed out by the Entry Clearance Officer, the contact between the appellants and the sponsor has been minimal. We are not confident that there is any record of contact between the sponsor and the second appellant at the date of the decision, although it may be assumed that since the decision the sponsor has met the second appellant. So far as contact between the first appellant and the sponsor is concerned, contact has been minimal. Evidently the sponsor can travel to Pakistan and stay there, but he did not do so between his marriage visit and the date of the decision. The position at the date of the decision was also was that the first appellant knew very little about the sponsor, despite having been married to him for some years. It was not said that she had no contact with members of his family ― quite the contrary. Her lack of knowledge is a fact counting against the assertion of a Convention right to be with him on the basis of their family relationship despite the provisions of the Immigration Rules.

[25]We are entitled to take into account the submissions put by Mr Mohammed in relation to having a carer for the sponsor and his sister. There can be no real doubt that the need for carers was a motive behind the arrangement of the wedding and for the present application, made some three years later, after an interval in which there had been virtually no contact between the parties to the marriage. Although if the appellants were admitted to the United Kingdom it is clear that the first appellant would look after the sponsor, her ability to do so and the wish that she should do so does not, in our view, assist an argument based on Article 8. This is a family in which, for reasons which are in part understandable, the family relationships between the appellants and the sponsor have been exceptionally distant. Nothing had in any real sense been done to foster them in the period before the present decision was made; and we have found that the first appellant has not established that she and the sponsor intend to live together permanently as husband and wife. In the circumstances the position is that the appellants have not established that the interlocking Article 8 rights of all the members of the family entitle them to admission despite their inability to comply with the Immigration Rules.

[26]There is one other point. It is said that the second appellant is a British citizen. Whether that is right probably depends on the validity of his parents’ marriage and the question whether it is entitled to recognition. In any event, if he is a British citizen, he does not need the entry clearance for which he applied. So far as we understand the matter, if he is a British citizen he is at liberty to be in the United Kingdom or to remain with his mother in Pakistan. The mere fact that he has that liberty does not entitle his mother to be in the United Kingdom, and there is no suggestion that at the date the decision it was anticipated that he would come to the United Kingdom without her, or that she had a right to come to the United Kingdom despite her inability to support him, merely by his being a British citizen. If such arguments are to be made, it seems to us that they should be made to the Entry Clearance Officer, by way of an application by the first appellant clearly indicating that the purpose of the application is to enable her to accompany her infant son exercising a right of residence in the United Kingdom.

[27]The appellants are not entitled to admission either under the Immigration Rules or under Article 8. Their appeals are dismissed. C M G OCKELTON 28. DEPUTY PRESIDENT