Asylum and Immigration Appeals Tribunal Case Study and Report.

[ginapeterb]

My Visit to the Asylum and Immigration Appeals Tribunal Case Study.


Monday 30th March 2009 - York House, Feltham Middelsex.


As some of you may know, I had been recently invited to attend and observe a live case involving a Filipino citizen who has applied for a spouse visa to enter the United Kingdom, of which the Entry Clearance Officer at the British Embassy in Manila had refused to issue.

Therefore I propose to relate the case history, composition of the tribunal, instructing solicitor, Barrister, Home Office representative, Witnesses, and the Sponsor's role, and that of the appellate.

I will start by relating first the case history and background to this test case for your perusal.

For privacy reasons, and as judgement has not yet been made on this case, I propose to mask the identity of the sponsor, witnesses and appellate, but will simply refer to the Appellate as Mrs C.

The sponsor will be referred to as Mr C and the co-respondent witness as Mr
H.


Case History and timelines.


During August of 2006, Mrs C met by way of an Internet Chat room, Mr H, a Uk Resident, they chatted for some 3 months, and it was decided that Mr H would visit the Philippines and subsequently did so, to the latter part of 2006, during this time, Mr H proposed marriage to Mrs C and left the Philippines to return to the UK.

Mr H suggested that Mrs C apply for a tourist visa to visit the United Kingdom, but some time had elapsed between the visit of Mr H to the Philippines, and finally in August of 2007, a visa application was successful, Mrs C was granted a visa to enter the UK for 6 months, with the application showing that she would visit Mr H.

At the time the visa was granted, Mrs C was also chatting on Internet with a Mr C and on social networking sites, Mr C was listed as a casual friend, and the appellate claimed that she was not involved in a relationship with Mr C, and that they were just friends.

Having secured a tourist visa to enter the UK, Mrs C made plans to fly to London, and did so, during late August of 2007, however after much consideration, Mr H had also been involved in a relationship with a Thai Woman, Miss A and Mr H told Mrs C that he had transferred his affections to Miss A.

Mr H then informed Mrs C not to fly to London as he no longer wished to see her, and that the relationship was over, not convinced of his scant disregard for her, she nevertheless flew to London, expecting that Mr H would be there to meet her.

On arrival, she was shocked to see that Mr H was not there, in fact at the time, he had flown to Thailand to see Miss A.

Having no contact with Mr H, and not knowing what to do, Mrs C contacted a Filipino female friend living in East London, to come to her aid, she then found lodgings at the friends flat in East London.

As Mr H refused all contact with her, she made numerous attempts to contact him, and finally did so, they had a meeting in London to discuss if there was any future in the relationship, Mr H stood firm and told Mrs C he was not interested in her any more.

Rather than return to the Philippines, Mrs C decided to stay in the UK and make the best of her tourist visa, it was during this time that she renewed her friendship with Mr C, chatting with him over internet, after some weeks, they met in London, and continued their friendship.

After a brief sexual relationship, Mr C proposed to Mrs C (Formally Miss S), and they agreed to marry in the Philippines in early 2008.

At the end of her tourist visa, Mrs C complied with the rules and returned to the Philippines engaged to be married to Mr C, a wedding in the Philippines ensured forthwith, and the appellate applied for entry clearance as the spouse of Mr C.

Entry Clearance Officer - British Embassy Manila Refusal to Issue a Visa.


Entry clearance refusal letter stated as follows:

1. I am not satisfied that the marriage is genuine, and that their exists a case of deception to deceive her Majesty's government and UK Border and Immigration agency for the reasons given:

Miss S has already made an application to visit the UK to see Mr H, and returns to the Philippines requesting entry clearance to marry Mr C, I am not satisfied that the applicant's marriage is genuine, and there is no prospect that the applicant and sponsor will remain together.

2. The arrangements for housing is not genuine, applicant states that she will reside at the sponsors address, but investigation shows that the sponsor has no legal right to live as a sub tenant in the property of an existing tenant.

3. Maintenance for the applicant is inadequate, sponsor's bank account is overdrawn, and no evidence of a permanent job is shown.


I therefore am not satisfied that a visa should be issued to Miss A, and that the application to enter the United Kingdom is denied.


The Appeal and day of the Hearing.

[aposhark]

Life can be so complicated for people at times.

Does this mean that you are going to let us know about the final outcome, Pete?

Is installment No. 2 coming?

There is no more info under "The Appeal and day of the Hearing".

[joebloggs]

miss a, = miss s = mrs c :Erm:

a visit visa to meet her fiancée and she ends up with another guy, and within a few months they are married, not the best start to try and prove your marriage is genuine, probably would have been a good idea, as she had been engaged recently to someone else, to wait a few more months, and gave lots of evidence that their marriage is genuine before they applied for a visa, but this reason to refuse maybe not enough to refuse a visa on its own, but with the other 2 reasons, I'm not surprised they were refused.

no evidence that he has suitable accommodation, no evidence of a permanent job, and bank statements over drawn :NoNo: :doh

it doesn't look good :cwm24:


You could be right Joe however we have to concede that the prospect for a visa for UK was too much of a carrot on a stick to induce then Miss S to come to UK regardless of whether she already knew Mr H was no longer interested in her, in fact Mr H had been planting his affections in other parts of the world at the time, there are those who will conclude that Miss S now Mrs C wanted to come to UK, and found another a.n. other willing British man to fill the gap, that is certainly how the Home Office will view it, although said in legal language, i.e. deception.

[ginapeterb]

Asylum and Immigration Appeals Tribunal Hearing and Composition of Court.


The following were in attendance at York House - AIAT Feltham.


The Appeals Tribunal Judge - One in Attendance a practicing Barrister.


Counsel for the Home Office - A Barrister.

Counsel for the Appellant - An Instructed Barrister paid for by the sponsor Mr C.

Instructing Solicitor - Mr Colin Harris of Harris and Company London.

Witness for the Appellant Mr H.

Mr Pete Bennett - Introduced to the court as observing on behalf of the Filipino UK Forum.


(Judge accepted that I may sit and witness the proceedings).



The Judges explanation of the procedure.


The Judge explains to the sponsor Mr C that it is her job to listen to the case for the Home Office, to hear evidence of the case from the point of the Border and UK immigration agency.

She will then hear an argument from the Sponsor through his Barrister who will present the argument.

The Home Office representative will then have an opportunity to cross examine the Sponsor through his statement, the barrister acting for the Appellant Mrs C will then have the opportunity to ask any questions, and to later cross examine the sponsor and any witness.

At the end, counsel will be invited to make final summations, and the judge will then take notes, and will reserve judgement for a written decision which is forthcoming in 2-3 weeks.


The Hearing live.


Opening statement by the counsel for Home Office, stated that he was instructed to ask the Judge to dismiss the appeal on the grounds that nothing had changed in the entry clearance officer's view that the marriage was genuine, and that the Home Office felt that based on the papers they held, that it was not subsisting.

Counsel for the appellant said that documentary evidence was available in the form of phone cards, Internet chat logs, and yahoo messenger extracts including e mails over a long period would show that the relationship was subsisting.

Counsel for the Home Office, said they were not contesting Maintenance and Housing as in they were not in receipt of documents correcting evidence they held, showing that Mr C had been the victim of unfortunate circumstances, in that his landlord had agreed at a later date that his tenant would agree to sub let part of his house in favor of the sponsor, therefore housing was not an issue to contest.

The Counsel for the Home Office then conceded that maintenance was not an issue to contest, and that due to Mr C's employer had been late in paying the sponsor, this had caused him to overdraw at the bank, Home office concedes no issue to contest.


The only issue remaining was that of subsisting marriage, Home Office then concedes that no deception had taken place.

Counsel for Appellant then stresses that his learned friend for the Home Office had been quite right to say that their was no attempt to deceive her Majesties Government, and that the only basis for upholding the Entry Clearance Officers decision was if the Madam Judge was not satisfied that the marriage was not subsisting.

Home Office counsel rather strangely starts to question sponsor Mr C about page 13 of his statement, where he says, his children by a previous marriage were not at his wedding, and this was rather strange if he asserted that his marriage was genuine.

Mr C answered that the reason his children did not attend the wedding in the Philippines, was that his son had a business to run who was 21 years old, and that his teenage daughter was taking her exams, and that his younger son was the charge of his ageing parents, his Mother having to take care of his Father who had dementia.

The Home Office then withdrew their objection to Page 13 on the explanation provided by Mr C, and conceded that there were no further questions to ask.

The Judge asked the counsel for the Appellant Mrs C if he wished to introduce his witness Mr H, however he said he did not, as the Home Office were not now contesting the statement of intent by Mr C, which clearly stated he was lawfully married to Mrs C and that their intention was to live as man and wife in the United Kingdom and requested that the Judge grant the appeal on the grounds that the refusal to issue a spouse visa infringed on the appellant's right who was left behind, and his rights to a happy family life.

The Judge having taken notes asked for final summations after cross examination.


Counsel for the Home Office said the following:

Madam, the Government seeks to prevent the entry of Mrs C into the United Kingdom if you are not satisfied that the marriage is subsisting, and if you do not believe it is so, then we recommend you dismiss the appeal forthwith.


The Counsel for the Appellant and Sponsor, then said the following:

Madam you have before you the words of the sponsor who had clearly shown his intentions, you have seen documentary evidence that the sponsor spends a good proportion of his money on phone cards, and other methods of communication to keep in touch with his wife, you have seen evidence that maintenance and housing are adequate, we would ask that on this basis, and on the concessions of my learned friend acting for the government that the appeal be granted.


The Judges final comments and dispersal of the court.

The Madam Judge responded as follows;

"I have heard both sides of the case, and I am satisfied that I have enough information now to render my decision, I will review this and will reach my decision within the next few working days, and you will receive it shortly."!


With this the court dispersed for the next case, the whole hearing from start to finish took approximately 30 minutes, but the waiting time to be heard was around 2 hours, the hearings start at 10.00 am, and can last all day.

I will publish the decision as and when the instructing solicitor receives it by post and informs me of the outcome.


My Own personal Opinions on this case.


A) The issues were narrowed down to 3, as follows:

1. Deception.

2. Lack of adequate Housing for the Appellant to live in.

3. Lack of adequate maintenance for the Appellant to live on.



I noted that the 2 barristers met in chambers prior to the hearing, the barrister acting for the sponsor and his appellant wife told me that the Home Office barrister had asked if the main witness had turned up.

He was informed that he had, He that is the Barrister acting for the Appellant said, that the Home Officer were unwilling to get into a long and protracted cross examination of the witness, since they did not contest that part of the case, so the witness did not actually give evidence, nor was his statement used in any part of the case.

Therefore Mr H's involvement, in that he dumped Mrs C and left her for another woman from Thailand had little effect on the case.

It was unfortunate for Mr C that when he submitted his bank statements he was overdrawn something of which we at this forum repeatedly tell applicants not to submit, again this is the outcome of bad preparation, and should lie with the fault of the sponsor.

As for housing, again the sponsor had badly handled this matter, he had not got permission to sub let a room from the existing tenant, thinking this would not be an issue, (clearly he was wrong) acted in a blase fashion, again bad preparation.

With regard to the deception, I noted from the barrister that he was lucky in one sense, since he had said in his sponsor's letter that he had been chatting with the appellant for 12 months, the Home Office had obviously missed this, and it did not seem to come up.

The message here is, don't tell lies, even if the bad news does not look good, tell the truth ad liars need a long memory, and good barristers can catch you out with cross examination.

However, as the only issue was if the marriage was subsisting, and really that was a matter for the judge to decide if she was satisfied.

So in conclusion, although the decision is not a foregone conclusion, I think the judge seemed to be pretty satisfied that everything is in order.

The thing I also learned from all of this, is that you should not try to represent yourself at these hearings, the Barrister also told me, and by the way we all went for coffee at the local Tesco, that Judges tend to believe that if you instruct a barrister to speak at your hearing, the fact that you have paid fees for this anywhere from £350.00 to £600.00 the chances are, this is a genuine appeal, those who represent themselves have not invested hard earned money.

That in itself does not seem fair, but maybe its the reality of the perception they Judges have.

Anyway, I learned quite a lot, and the experience will help me I am sure in the future.

I will post the decision when its forthcoming, I feel sorry for the British guy who now has to wait and sweat it out, but he was in high spirits when we left Feltham, he is such a nice guy, and I hope it goes his way.

[ginapeterb]

Life can be so complicated for people at times.

Does this mean that you are going to let us know about the final outcome, Pete?

Is installment No. 2 coming?

There is no more info under "The Appeal and day of the Hearing".

hahahahahha give me chance to write it mate.

[aposhark]

hahahahahha give me chance to write it mate.

Sorry, when you were feverishly pounding the keyboard :xxgrinning--00xx3: :doh:ARsurrender:

[ginapeterb]

update on this case.

The Immigration appeals tribunal has held in favor of the appelant and she has been granted a UK Visa to come to the UK.

So there endeth the case, another satisfied customer, the attending immigration solicitor was Mr Colin Harris of Harris and Co.

[somebody]

Very Intresting and well done to the Couple. Thanks for the Time you took also Pete.

Have to say the part below about the not representing yourself is either worrying if the truth (Im sure many would have not found it easier to pay hundreds in fees.
But like you say you do wonder if either the Barrister or Judges (it is a closed shop after all) will always say and think that. Very rare you will here a trade professional say that you could do it yourself. But if your being presided over by someone who is from the same background:NoNo:

The thing I also learned from all of this, is that you should not try to represent yourself at these hearings, the Barrister also told me, and by the way we all went for coffee at the local Tesco, that Judges tend to believe that if you instruct a barrister to speak at your hearing, the fact that you have paid fees for this anywhere from £350.00 to £600.00 the chances are, this is a genuine appeal, those who represent themselves have not invested hard earned money.

That in itself does not seem fair, but maybe its the reality of the perception they Judges have.

[joebloggs]

Andy i would have thought it depends on how straight forward your case is and if you have the confidence to to be able to represent yourself at a hearing.

and about paying for a barrister and the judge will think you case is genuine, i'm sure a judge would be equally impressed by someone who has got off their :butthead: to represent themselves at the hearing and to hear their plea in their own words of the injustice that has been done :cwm24:

it all depends on the reason for refusal, if you can see why you was refused, then it might be wise to just re-apply. but if you think you've been wronged then it still could be wise just to write to the ECM at the embassy and ask them to reconsider, if then refused,it still might be wise just to re-apply, but that depends why you was refused.