Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05151/2016

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 9 March 2017
On 14 March 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

ENTRY CLEARANCE OFFICER – PRETORIA
Appellant
and

MADINA SAID SULEIMAN
Respondent

Representation:
For the Appellant: Mrs H Aboni, Home Office Presenting Officer
For the Respondent: No representative

DECISION AND REASONS
1. This is an appeal by the Entry Clearance Officer against a decision of the First-tier Tribunal (Judge Freer) allowing the appeal of the respondent (hereafter the “claimant”) against a refusal to grant her entry clearance as a spouse under Section EC-P of Appendix FM.
2. The claimant’s application was refused by the ECO on 25 January 2016 because he was not satisfied that the appellant met the financial requirements of Appendix FM, namely that her spouse in the UK earned a gross salary of at least £18,600 (E-ECP.3.1.) and further that the evidence did not establish that their marriage, contracted on 22 October 2015, was “genuine and subsisting” (E-ECP.2.6.) and that they intended to live together permanently in the UK (E-ECP.2.10.).
3. That decision was upheld by the Entry Clearance Manager in a decision dated 20 May 2016.
4. The claimant appealed to the First-tier Tribunal. She did not request an oral hearing and the appeal was determined “on the papers” by Judge Freer. First, he accepted on the basis of the evidence before him that the claimant met the financial requirements of Appendix FM. Further, he found that the relationship between the appellant and her sponsor was a genuine and subsisting one and that they intended to live together permanently. He was satisfied that the claimant met all the requirements of the Rules and he allowed the appeal under the Immigration Rules.
5. The ECO sought permission to appeal to the Upper Tribunal on the ground that the evidence before the judge was not sufficient to establish that the relationship was “genuine and subsisting” and that they intended to live together.
6. On 11 January 2017, the First-tier Tribunal (Judge Parkes) granted the ECO permission to appeal.
7. At the hearing before me, the claimant was unrepresented but the sponsor Mr Hamisi Hassan attended. The ECO was represented by Mrs Aboni, a Home Office Presenting Officer.
8. Mrs Aboni submitted that the judge’s finding, in respect of the genuineness of the relationship in para 18 of his decision was inadequately reasoned. She submitted that the judge had no witness statement from either the claimant or sponsor. There were some emails between the sponsor and appellant for the years 2012 and 2013 but none thereafter prior to the ECO’s decision on 25 January 2016. The printout of telephone calls was, she submitted, unhelpful because the final digit in the year relating to each call was not photocopied. Mrs Aboni submitted that on the basis of this evidence the judge’s finding in the claimant’s favour was unsustainable.
9. The judge’s reasons for finding in favour of the claimant are set out in para 18 as follows.
“18. The couple have been engaged in a truly affectionate and sustained loving relationship. There is ample evidence to this effect such as printed messages (although the last digit of the year is consistently cut off in my copies) and emails from the years 2012/13. The pursuit of this appeal with much supporting evidence provided by the sponsor tends to show that the relationship is continuing, that it will continue permanently in the UK and also that both individuals support the appeal. The total gross income of the sponsor is shown to be £20,820.00. The pay of the sponsor from the main source of income exceeds the threshold figure. The current evidence is sufficient in respect of these matters.”
10. As I have already indicated, the judge dealt with the appeal “on the papers”. He was not assisted in that by the fact that the claimant’s application, contained within the ECO’s bundle, was only partially photocopied. The full application was not made available to me. There was no oral or written evidence from the claimant or sponsor. Apart from the evidence relating to the sponsor’s financial circumstances, there was only the evidence in the emails for the years 2012 and 2013, a printout of telephone calls made but at unascertainable dates given the state of photocopying, and a number of photographs which, it would appear, show the claimant and sponsor at their wedding ceremony. There was no direct evidence from either the claimant or the sponsor. The judge also only had a partial copy of the claimant’s application and, as a result no doubt, some relevant information contained therein was also not available to him.
11. I accept Mrs Aboni’s submission that the evidence before the judge did not entitle him to reach the positive finding that the marriage was a “genuine and subsisting” one and that the claimant and sponsor intended to live together permanently. At the date of decision, there was little, if any, relevant evidence as to the nature of the marriage or the intentions of the claimant and sponsor.
Decision and Disposal
12. As a consequence, I am satisfied that the judge erred in law in making that finding in the claimant’s favour and consequently allowing her appeal. His decision cannot stand and is set aside.
13. At the hearing, the sponsor indicated that he would wish to give evidence if the decision was to be remade. Mrs Aboni invited me to remit the appeal to the First-tier Tribunal. That, in my judgment, is the appropriate disposal of this appeal. I, therefore, remit the appeal to the First-tier Tribunal to be heard by a judge other than Judge Freer.
14. Mrs Aboni indicated that the ECO might wish to revisit the positive finding made by Judge Freer in relation to the financial requirements. However, the ECO’s grounds of appeal do not seek to challenge that finding or, indeed, any other aspect of the judge’s decision. Consequently, the judge’s finding in the claimant’s favour that the claimant met the financial requirements of Appendix FM shall stand.
15. As I pointed out to Mrs Aboni, since the application was made, as I understand it, in December 2015 and the decision to refuse entry clearance was made on 25 January 2016, the appeal provisions in s.82 of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014 apply. Consequently, the only relevant ground of appeal is that the ECO’s decision breaches Art 8 of the ECHR. She has no appeal, as Judge Freer assumed, on the basis of the Immigration Rules alone.
16. Consequently, on remittal, subject to the preserved findings I have indicated, the issue will be whether the ECO’s decision breaches Art 8 of the ECHR including whether her relationship with the sponsor is a genuine and subsisting one and that they intend to live together permanently.

Signed

A Grubb
Judge of the Upper Tribunal

Date