SA v Secretary of State for Work and Pensions (BB) [2013] UKUT 436 (AAC)

UKUT-AAC
SA v Secretary of State for Work and Pensions (BB)
[2013] UKUT 436 (AAC) · 2013-09-05
[58]“A sincere and solemn declaration is clearly more numinous than a mere declaration, but sincerity and solemnity do not by themselves change the nature of the declaration ” (at [58]). For that reason I do not go as far as Mr McClure, who argues that the statutory declaration should carry “no additional weight beyond that of a simple written statement.” 23. It is also well established, of course, that the question of whether evidence is given on oath (or affirmation) is relevant to its probative worth (see e.g. General Medical Council v Spackman [1943] A.C. 627 at 636-637 per Viscount Simon L.C.). The same consideration, in my view, applies to a statutory declaration. It does not mean, however, that the contents of the statutory declaration are presumptively true, requiring a high degree of rebuttal. On the contrary, the probative value of such a statement can only be properly assessed by having regard to all the material evidence, which this tribunal unfortunately failed to do. 24. To take just one factual illustration from the case law, in the litigation which followed the collapse of BCCI, Lightman J. found that one of the employees, a Mr Zafar, had made a false statement in a statutory declaration (at [226(i)]) and that he was not a credible witness (at [267]), having weighed all the relevant evidence ( BCCI v Khan, Ali and Others [1999] EWHC 846 (Ch) ). The fact that the statement in question had been made in a statutory declaration was doubtless a factor to be taken into account – but there is no suggestion in Lightman J’s judgment that this format required compelling evidence in rebuttal. 25. It follows that the FTT in this case erred in law. It proceeded on a generalised assumption that a statement of fact in a statutory declaration needed to be rebutted by compelling evidence to the contrary. It also failed to engage properly in the process of evaluating all the evidence. In those circumstances I do not need to address the other grounds of appeal advanced by Mrs A’s solicitors in any detail. I would just add that although the FTT’s phraseology is rather ambiguous, there is some force in the argument by Mrs A’s representative that the FTT misunderstood the thrust of her submission about the statutory declaration. Paragraph [4.5] of the FTT’s reasons might be read as suggesting that the statutory declaration was designed to perpetrate a fraud on the Revenue. In fact, of course, Mrs A’s representative was arguing that the statutory declaration was sworn to terminate the deceit, not to perpetuate it. In any event, I allow the Appellant’s appeal and set aside the tribunal’s decision (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). 26. There is no point in sending this case back for re-hearing before a fresh tribunal, as it is highly unlikely that any new evidence will emerge. Both parties are content for me to proceed to re-make the decision under appeal. I do so accordingly. The Upper Tribunal’s re-making of the decision under appeal Introduction 27. Mr McClure’s submission, in summary, is that(i) in the circumstances of this case it was for the Secretary of State to show that Mrs A was not validly married – it was not for Mrs A to prove a negative, namely that there had never been a valid marriage between Mr A and Mrs J;(ii) the evidence that there had been such a marriage between Mr A and Mrs J was at best weak; and(iii) the weight of the evidence before the tribunal should have led it to conclude that Mrs A’s marriage to Mr A was valid and that she was therefore entitled to bereavement benefit. 28. Mrs A’s solicitors, whilst making a number of further points, agree with that approach. I could accordingly have dealt with the matter either by way of a consent order (Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), r.39) or by way of a decision without reasons (r.40(3)). However, I agree with Mr McClure that it may be helpful to other First-tier Tribunals to explain the reasoning for my decision. The evidence that there had been a marriage between Mr A and Mrs J in 1948/49 29. The starting point in considering the case that Mr A and Mrs J were validly married in 1948/49 is that there is no direct evidence of the alleged marriage between Mr A and Mrs J. The only evidence that there was such a marriage is (i) by way of inference from Mr A’s 1975 statutory declaration that he had ended it by divorce; (ii) again, by way of inference from the purported acceptance of the talaq by Mrs J; and (iii) by way of Mr A’s various annotations to the DSS enquiry form, and correspondence with the DSS, at the time of his own application for benefit in 2003/04. 30. The argument put by Mrs A’s solicitors at the FTT hearing was stark, and less than attractive. As they also subsequently explained in the application for permission to appeal:
“It was put to the Tribunal that the late Mr A may have had his own reasons for inventing a wife when he was working in the UK in the 1960s, and further good reason for killing off the said “wife” by the mid 70s, namely that fraudulent claims of Child Tax Allowance were common in immigrant communities during the 1960s, and these allowances were abolished from 1975. At the Tribunal hearing evidence was presented that Mr A’s tax code reduced substantially in the 1974/5 tax year.” 31. Mrs A’s representative makes the further remarkable claim in her written submissions that “I have seen numerous benefit cases where pre-1975 dependants were invented for tax purposes, and many of these people could not remember and give consistent details of those that they invented. I have also been told by many men that in the late 1970s they had to repay the Revenue because of this type of fraud, particularly where they were then seeking to bring their genuine wives to the UK.” 32. Rather than peremptorily dismissing this argument (which I consider further in the Appendix to this decision), the FTT should have weighed this explanation in the balance. It could not simply disregard it without further ado because Mr A had apparently acknowledged a prior marriage in his 1975 statutory declaration. In my view, Mr A’s evidence in the round should have been treated with some circumspection. True, he had, by inference, accepted in the statutory declaration that there had been a valid marriage in 1948/49. However, in one of his answers to the DSS enquiry form in respect of his 2003 retirement pension claim, he denied ever having been married to anyone else, signing a declaration to the effect that the information given was correct and complete and that if not “action may be taken against me”
. He then subsequently added annotations to a copy of that enquiry form, designed to make the answers consistent with the statutory declaration. He also gave different dates as to when he understood Mrs J had died. 33. The tribunal papers included what purported to be Mrs J’s sworn acknowledgement of the talaq . However, Mrs A’s solicitors have provided a certificate from the Peshawar Treasury, the equivalent of the Land Registry, recording no trace of the address given by Mrs J in her statement. This at least raises a question mark as to the authenticity of her sworn statement. 34. That, then, is the limit of the evidence to support the case that there was a valid marriage between Mr A and Mrs J in 1948 or 1949. Mr McClure relies by analogy on the decision of Mr Commissioner Jacobs in CP/6277/1999, where he held as follows (at paragraph 9):
“… So, the burden was on the adjudication officer (now the Secretary of State). There was some evidence of another marriage, but it was very weak. The question I ask myself is this. If the evidence of the other marriage that is before me was used as the basis for a claim for a retirement pension, what would the decision be? The answer can only be that it would be rejected as insufficient to prove the existence of a marriage. On that basis, the Secretary of State has not proved that there was another marriage.” 35. This evidence must now be weighed in the scales against the evidence to the contrary. The evidence that there had not been a marriage between Mr A and Mrs J in 1948/49 36. The contemporary evidence of any such marriage in 1948 or 1949 is non-existent. There is no evidence of the precise date of the alleged marriage. There is no marriage certificate or any other contemporary documentation. There is no evidence from any third parties about the supposed marriage. However, none of this is fatal to the case for there having been a marriage. This is for the simple reason that the event in question, assuming it took place, happened a long time ago in a society with different customs and practices. As Mr Commissioner (now Judge) Jacobs observed in CP/4062/2004, commenting on the availability (or otherwise) of contemporaneous documentary evidence of births or marriages: “13. This is an inevitable feature of cases involving countries in which there is no reliable system of registration of important life events like birth, marriage and death. It is a neutral factor in the assessment of the evidence. It hampers the genuine claimant in making her case, while providing an opportunity for deceit by the dishonest claimant. The decision-maker and the tribunal have to decide whether the claimant is genuine or dishonest. It is wrong to approach that task by taking the lack of contemporaneous evidence as a factor that is against the claimant. To do so would be to assume what has to be decided.” 37. A further consideration is that Mr A was obviously a child at the time of the alleged marriage in 1948 or 1949. It is said that Mrs J was too. Again, this does not, of itself, mean that a valid marriage did not take place. The Child Marriage Restraint Act 1929, originally enacted in British India, applied also to Pakistan. It provided for minimum ages for the marriage of boys (18) and girls (14, later raised to 16 by the Muslim Family Law Ordinance 1961), backed up by criminal sanctions. Such marriages were voidable by the child bride on attaining majority. As the standard legal textbook on the subject notes, “While very early marriages are widely perceived as socially undesirable, and the average marriage ages in South Asia are in fact slowly going up, most child marriages never come to the notice of the authorities, hardly anyone gets penalised, and such marriages have consistently been recognised as legally valid” (D. Pearl and W. Menski, Muslim Family Law (3 rd edition, 1998) at p.155, [6-55]). 38. So the absence of contemporary evidence and the fact that the parties were children at the time of the alleged marriage is not decisive either way. There are, however, a number of factors which do suggest that no such marriage took place. In no particular order, they are as follows. 39. First, the FTT had before it Mr A’s old-fashioned national insurance (NI) account card (or “RF1”). This recorded his name, address, marital status, occupation NI contributions and credits etc up till the first basic computerised system in 1975. Mr A’s RF1 was opened in 1962, shortly after his entry to the UK. The entries for marital status or spouse were all left blank. This is the oldest document on file. It shows that Mr A made no declaration to the Department between 1962 and 1975 (the final entry being 5 October 1975) that he was or had been married, let alone married to Mrs J. 40. Second, the FTT also had before it a copy of the original certificate of marriage between Mr and Mrs A in 1975 and an authorised translation into English. In the English version, Mrs A was described as a “spinster”; however, the answer to the question “Does the bridegroom have another wife? If so, did he obtain permission of the Arbitration Council under Muslim Family Law Ordinance 1961?” was left blank. In the original Urdu text, however, diagonal or crossed lines had been entered, presumably indicating that no relevant information needed to be included. 41. Third, Mrs A and her son gave clear and consistent evidence to the FTT that Mr A had made no mention whilst he was alive of Mrs J or the alleged four illegitimate children that she had had. They had also made extensive enquiries of family members, none of whom could confirm the existence of Mrs J. An obvious riposte to this is that little weight should be attached to this particular evidence, as it was self-serving. However, Mrs A also gave evidence that her marriage to Mr A was an arranged marriage, that he was then aged 37 and she was 19, and that she had discussed the matter with her late father, who had said that he would have been aware of any previous wife. 42. Fourth, and finally, the validity of Mrs A’s marriage had twice previously been investigated by the UK authorities. In the first place, the Home Office had approved Mr A’s application for entry clearance for Mrs A in 1976 before she entered the UK. None of the relevant documents were before the FTT. However, it is not unreasonable to assume that that application was approved only after the usual types of enquiries were made. 43. Subsequently the Department’s specialist Validity of Marriage Unit (VMU) had conducted its own investigation into Mr A’s marital status in the course of 2003 and 2004 before the decision was taken to award the ADI for Mrs A as part of his retirement pension. That investigation included an interview, the transcript for which is no longer available as the Department has destroyed all the relevant papers under its normal protocols for retaining or disposing of historic documents. It doubtless included other relevant material, including both other evidence and opinions from VMU staff on that evidence. The Department was well aware at that time of the possibility of a previous marriage with Mrs J, yet the advice was given that the marriage to Mrs A was valid. 44. In its submission to the FTT, the Department sought to deal with this matter in the manner explained in paragraph 10 above, by reference to reported Social Security Commissioner’s decision R(IS) 11/92. However, as Mr McClure submits, “if the intention of the reference to R(IS) 11/92 was effectively to rule the Secretary of State’s favourable ADI decision out of evidence before the tribunal, then that intention was ill-founded. The Secretary of State makes correct decisions in the vast majority of cases, and the ADI decision would not have been made without reference to the relevant evidence, and a determination that on the balance of probabilities that the claimant was validly married to Mr A.”
The Upper Tribunal’s conclusion 45. The absence of contemporary documentation and a certain haziness about the date of the alleged marriage between Mr A and Mrs J does not mean that it did not take place. The fact that they were both said to be children did not mean that it did not take place. However, the only evidence that such a marriage did happen is by way of inference from Mr A’s statutory documentation and associated documents. There are reasons to be sceptical about all this evidence; for example, Mr A changed his story more than once and there is no firm evidence that Mrs J actually ever existed. In addition, Mrs A’s solicitors have put forward a reason for Mr A’s account which, whilst deeply unattractive, had at the very least an air of plausibility about it (and indeed, for the reasons given in the Appendix, which also forms part of this decision, the ring of truth). 46. On the other hand, Mr A’s NI records and the 1975 marriage certificate give no support at all for the suggestion that he had been previously married, and if anything suggest that he was not. The family’s evidence was that they had never previously heard of Mrs J – and I take account of the fact that this was an arranged marriage, with all that entails about the two families and their previous dealings. Two Government departments have previously concluded that the marriage between Mrs A and her late husband in 1975 was a valid one, and at least one of those departments (the VMU in 2003/04) had before it at least as much evidence as is available now and probably more. 47. In those circumstances I conclude that the weight of the evidence satisfies me on the balance of probabilities that, notwithstanding Mr A’s 1975 statutory declaration, there never had been a previous marriage between Mr A and Mrs J. Mr A’s only valid marriage was with Mrs A on 11 October 1975. I would have reached this conclusion without having regard to the burden of proof. But given that it must be for the Secretary of State to show that Mrs A was not validly married, I am certainly persuaded that that burden has not been discharged on the available evidence. 48. I conclude that the decision of the First-tier Tribunal involves an error of law for the reasons set out above. I therefore allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).

(b) (ii)):

“The Appellant’s appeal is allowed. The Appellant is entitled to bereavement benefit. The marriage between her and Mr A on 11 October 1975 was a valid marriage. Mr A had not previously been married to Mrs J in 1948 or 1949. The Secretary of State’s decision issued on 1 March 2011, and revised on 13 September 2011, is further revised accordingly.”
Signed on the original Nicholas Wikeley on 5 September 2013 Judge of the Upper Tribunal APPENDIX to CG/185/2013 A1. In the main body of my decision I included the following submissions from the representatives of Mrs A: ‘30. The argument put by Mrs A’s solicitors at the FTT hearing was stark, and less than attractive. As they also subsequently explained in the application for permission to appeal: “It was put to the Tribunal that the late Mr A may have had his own reasons for inventing a wife when he was working in the UK in the 1960s, and further good reason for killing off the said ‘wife’ by the mid 70s, namely that fraudulent claims of Child Tax Allowance were common in immigrant communities during the 1960s, and these allowances were abolished from 1975. At the Tribunal hearing evidence was presented that Mr A’s tax code reduced substantially in the 1974/5 tax year.” 31. Mrs A’s representative makes the further remarkable claim in her written submissions that “I have seen numerous benefit cases where pre-1975 dependants were invented for tax purposes, and many of these people could not remember and give consistent details of those that they invented. I have also been told by many men that in the late 1970s they had to repay the Revenue because of this type of fraud, particularly where they were then seeking to bring their genuine wives to the UK.” A2. In her submissions to the Upper Tribunal, Mrs A conceded that she was unable to offer any legal precedent to support these submissions. She accepted that she had told the FTT that the only cases she was aware of involved other clients for whom she had acted. A3. Mr McClure, for the Secretary of State, stated that he was “in no position to judge” whether the explanation that had been proffered was correct. However, he very fairly noted that Mrs A’s representative had considerable experience “in dealing with the issues arising here”. A4. I have undertaken some limited research and identified a number of materials which provide support for the arguments put by Mrs A’s representative. I have not put these points to the parties as in the circumstances they do not need any further comment – they simply underpin Mrs A’s case and Mr McClure supports the appeal on other grounds, without needing to delve into this murky matter. A5. The fruits of my limited research are as follows. A6. First, child tax allowances (CTAs), which were first introduced in 1909, were available for children living overseas (Finance Act 1977, section 25). They were finally abolished, following a transitional period, with the introduction of child benefit (see Finance Act 1980, section 25(3)). According to one socio-legal study, the abolition of CTAs: “was prompted by the introduction of child benefit and also by the British High Commission in Bangladesh which issued a document, The Sylhet Tax Pattern , claiming tax fraud within the UK by Bangladeshis from Sylhet” S. Cohen, Immigration Controls, the Family and the Welfare State (2001), p.184. A7. Second, an article in the Law Society Gazette (“The South Asian family and British Immigration Law: part I” on 10 February 1988 analysed in some detail the difficulties faced by migrants from India, Pakistan and Bangladesh. The author gave the following scenario: “Let us take a fictitious person, one Syed Ullah. He comes from a poor village near Sylhet in East Bengal. The family are traditional farmers. There is little money to spare. The year is sometime in the mid-1960s. The family decide that Syed should go to England to earn money. He has no problems with the immigration authorities at this time. When he arrives in the UK he finds lodgings and a job. He is perhaps now the only real wage earner in the family. The intention is that he should stay in the UK for a short period and then return home to East Bengal. He remits most of his earnings back to his family in Bengal. He is told by his fellow countrymen that in order to add a little, perhaps a very little, to his meagre resources that he should declare to the tax authorities the existence of a wife and children back home. He is of course a bachelor. The wife and children either don't exist at all, or they are real people but possibly from his brother's family. As, in any event, he is primarily responsible for supporting them from remittances, he may feel a moral justification for doing what he has done. It is known as the Sylhet tax pattern ('STP'). In one case, a sponsor stated why he had submitted incorrect tax claims. This is fairly representative. 'When I came here, I did not know anything about how to apply for a code number. People gave me advice, if you make more children, you get bigger code number. They told me, if you alter date of birth, then we can adjust another two children.' The wife and children In the early 1970s, he returns to Bangladesh for a visit. A marriage has been arranged for him. It is then that he finds himself in difficulties. He gets married and then within a few months returns to the UK. Perhaps some eight months after his return a child is born. The tax claims have to be adjusted. He may therefore declare that he has 'divorced' his first wife, or that she has died. Just possibly the real wife assumes the identity of the fictitious wife. On subsequent visits to Bangladesh, more children are born and the time finally comes when the wife and children persuade him to bring them over to the UK. He applied for entry certificates on their behalf at the British High Commission in Dhaka. Anyone wishing to settle in the UK as the wife or dependent relative of a person settled here requires an entry clearance certificate, which consists in effect of an endorsement of the passport.” A8. The author, plainly writing with the benefit of considerable experience, goes on to deal with the inevitable problems that then result in the application process, where it “is tinged with the deceit of the tax fraud and the evidence of the sponsor and the principal applicant to that extent will lack some credibility”. A9. Third, there was a lengthy debate in the House of Commons, in the course of the passage of the Finance Act 1980, on the subject of “Child Tax Allowances for Children living abroad” ( Hansard , HC Debs vol 988 col 1646-70, 16 July 1980). The Minister’s justification for the change did not place any reliance on the risk of fraud. However, the issue of “false claims in respect of nonexistent children” by the “new Commonwealth and Pakistani ethnic group” was raised by backbench MPs. A10. All these sources (which, of course, were not before the FTT) support the explanation which was put forward by Mrs A’s representative at the FTT hearing for why the statutory declaration had been made. It was, as she argued, designed to terminate the deceit, not to perpetuate it. Mr A was about to enter an arranged marriage and needed to ensure that everything was in order so that his new wife would be allowed to enter the UK. This gives the explanation that has been proffered not simply the air of plausibility, but the ring of truth.

Cited in 1 later judgment