United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/23409/2014

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On 6 August 2015	On 26 August 2015

 

Before

 

Deputy Upper Tribunal Judge MANUELL

 

 

Between

 

Mrs BARBARA MASENGU

(ANONYMITY DIRECTION NOT MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: In person

For the Respondent: Mr E Tufan, Home Office Presenting Officer

 

 

DETERMINATION AND REASONS

Introduction

1. The Appellant appealed to the Upper Tribunal with permission granted by First-tier Tribunal Lambert on 8 June 2015 against the decision and reasons of First-tier Tribunal Judge Shepherd who had dismissed the Appellant's appeal against the refusal on 19 May 2014 of her application for further leave to remain under paragraph DVILR.1.1(d) and paragraph 289A of the Immigration Rules. The decision and reasons was promulgated on 13 February 2015.

2. The Appellant is a national of Zambia , born on 24 February 1981. The Appellant had entered the United Kingdom on 26 October 2012 as the fiancée of Mr Damon Trott, a British Citizen. They were married on 21 January 2013 and the Appellant was granted further leave to remain as a spouse until 29 January 2015. On 1 April 2014 the Appellant applied for a variation of leave as the victim of domestic violence. The decree absolute was pronounced in her divorce on 15 May 2014.

3. Permission to appeal was granted by First-tier Tribunal Judge Lambert because she considered (in summary) that it was arguable that the judge's findings on the central issue of domestic violence were unclear and inadequate.

4. Standard directions were made by the tribunal, indicating that the appeal would be re-decided immediately if a material error of law were found. A rule 24 notice in the form of a letter dated 17 June 2015 had been filed on the Respondent's behalf opposing the onwards appeal.

Submissions

5. On the morning of the Upper Tribunal hearing, the Appellant's representative wrote by fax to the tribunal requesting an adjournment. Her representative stated that she had become unwell following the birth of her baby in recent weeks. She had been unable to arrange alternative representation at short notice. She said that it would be prejudicial to the Appellant to proceed in the absence of representation.

6. The Appellant was present in person at the hearing. The tribunal explained to her that the adjournment was refused. The assertion that alternative representation had not been possible to arrange at short notice was not accepted, however that was not a matter in the Appellant's hands and she should not be and would not be prejudiced. The issue for the tribunal to determine was whether there had been a material error of law, which was not a question to which the Appellant could contribute. Her representative's submissions were set out in the grounds of onwards appeal, which the tribunal had read. The real problem was that there was, in the tribunal's view, nothing of any substance in the grounds of appeal. The tribunal was accordingly not at all likely to be influenced or persuaded that any additional submissions on the Appellant's behalf might change the position. The Appellant's situation of uncertainty would be needlessly prolonged by an adjournment which would serve no purpose, not to mention the pointless costs which the Appellant would incur.

7. Mr Tufan for the Respondent relied on the rule 24 notice. He submitted that t here was no error of law and that the determination should stand. The judge had set out in detail the Appellant's evidence and had given entirely adequate reasons for her adverse credibility findings, which were based in part on the discrepancies the judge had noted. There was little of any independent value in the evidence, which was mainly repetition of the Appellant's claims by third parties. The grounds of appeal were simply an attempt to reargue the appeal.

8. The tribunal indicated at the conclusion of submissions that it would be finding that there was no material error of law, and reserved its determination, which now follows.

No material error of law finding

9. The determination of Judge Shepherd was extremely detailed, citing much of the evidence almost verbatim. There are some 12 paragraphs recording the submissions made on the Appellant's behalf. Sometimes judges who provide so much detail from the hearing then fail to provide sufficient reasons for their ultimate decision, perhaps, as it were, having run out of steam. No such criticism can, however, be maintained against the present determination. It seems to the tribunal that the grant of permission to appeal was very generous and failed to recognise the care with which the judge had reached her findings.

10. The grounds of appeal refer to the judge as "the IJ". The title Immigration Judge has been obsolete since 2010. The grounds sought at some length to show that the judge had erred in reaching her credibility findings. The grounds repeatedly claim that the judge should have believed the Appellant and given more weight to various items of evidence. It is also asserted that the judge gave evidence about the frequency of the contest of divorce petitions, whereas she should have found that the absence of contest was acceptance by the husband that the allegations against him were true. By necessary implication the grounds seek that the decision and reasons should be set aside and the appeal reheard by another judge.

11. All of the complaints made in the grounds of onwards appeal amount to nothing more than expressions of disagreement with the judge's decision, and fail to show any error of law. The appeal turned on the Appellant's credibility and the judge set out her findings at [66] onwards, in a logical order, starting with the documents, which included police reports. The judge had to decide whether the short lived marriage broke down because of violence/abuse, whether physical or mental, or for ordinary reasons. The judge explained why she found that the Appellant's evidence was exaggerated and unreliable, through a careful and thoughtful analysis of the evidence. The judge did not "give evidence" about divorce petitions at [78] of her decision, but rather gave simple and sustainable reasons why the failure to contest the petition could not be treated as an admission that the Appellant's allegations about her husband were true. The judge could hardly have done more to explain why the appeal failed.

12. The tribunal accordingly holds that there was no material error of law in the decision and reasons and there is no basis for interfering with the judge's decision.

DECISION

The making of the previous decision did not involve the making of an error on a point of law and stands unchanged

 

 

Signed Dated

 

Deputy Upper Tribunal Judge Manuell