Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/02152/2015
HU/02154/2015
HU/02157/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 6 April 2017
On 28 April 2017
Prepared on 6 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between

A.L.
E. L.
D. L.
(ANONYMITY DIRECTION)
Appellants
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Rogers, Immigration Advice Centre Limited
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellants are a mother and two children who applied in 2015 for entry clearance to the United Kingdom for settlement as the spouse and step-children of the sponsor, a British citizen. Their applications were refused on 24 June 2015, and the Appellants duly appealed those decisions to the First tier Tribunal. Their appeals were heard and allowed on Article 8 grounds by a decision of First tier Tribunal Judge Doyle in a decision promulgated on 17 May 2016.
2. The Respondent’s application to the First Tier Tribunal for permission to appeal was granted by Judge Grimmett on 8 November 2016. The Appellants have filed no response to that grant pursuant to Rule 24. Thus the matter comes before me.

The Article 8 appeal
3. The Judge noted, correctly, that the Appellants appeals were limited to Article 8. He noted that it was common ground before him that the Appellants had made a genuine mistake in preparing their applications, and thus, although their application forms referred to the tax year to April 2015 and to the submission of documents relevant to that tax year, they had mistakenly provided a CT600 form for the tax year to April 2013 rather than the CT600 form for the tax year to April 2015. He noted that had that mistake not been made, the applications would have been granted, because it was accepted that the sponsor did have at the date of decision an income that exceeded the relevant minimum financial threshold figure, and otherwise the documents that were submitted in support of the application satisfied the requirements of Appendix FM-SE and were complete.
4. It is plain from his decision that the Judge approached the Article 8 appeal in that context, and that he went on to find (it was not challenged) that “family life” existed at the date of decision between the Appellants on the one hand, and the sponsor on the other, and that the decisions under appeal interfered with the ability of the Appellants to live with the sponsor in the UK, although they did not of course prevent the sponsor from choosing to live with them if he was prepared to abandon the business he had created in the UK.
5. The Judge made specific reference to the Presidential guidance to be found in Mostafa (article 8 in entry clearance) [2015] UKUT 112 and specifically noted the passage in that decision relating to the approach that should be taken in relation to applicants who omitted to satisfy the requirements of the Immigration Rules through their own error in omitting a material document from those supplied with their application.
6. In the circumstances, and in the light of the recent guidance from the Supreme Court for example in Agyarko [2017] UKSC 11, and notwithstanding the grant of permission to appeal, Mr Diwnycz concedes that there is no material error of law that requires the decision to be remade, that is disclosed in the decision of the First tier Tribunal. He accepts that it was open to the Judge to find on the facts of this case that the decision was not proportionate to the legitimate public interest in maintaining an effective system of immigration controls. He accepts that the Judge did take into account all of the competing interests and all of the relevant facts, and gave adequate reasons for his proportionality decision.
7. In the circumstances I accept that the Judge’s conclusion on the Article 8 appeal was open to him on the evidence, and was adequately reasoned. There is therefore no material error of law in the Judge’s approach to the Article 8 appeal that requires that decision to be set aside and remade.

Conclusion
8. There is no error of law that requires the decision to be set aside and remade.

DECISION
The decision of the First Tier Tribunal which was promulgated on 17 May 2016 contains no error of law in the decision to dismiss the Appellants’ appeals which requires that decision to be set aside and remade, and it is accordingly confirmed.

Direction regarding anonymity – Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until the Tribunal directs otherwise the Appellant is granted anonymity throughout these proceedings. No report of these proceedings shall directly or indirectly identify her. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.

Deputy Upper Tribunal Judge JM Holmes

Dated 6 May 2017