Tribunal decisions

The decision

St

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05623/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 3rd April 2017
On 6th April 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

Mr. MUHAMMAD TANVEER.
(NO ANONYMITY DIRECTION MADE)
Appellant
And

THE ENTRY CLEARANCE OFFICER FOR PAKISTAN AT ISLAMABAD
Respondent

Representation:
For the Appellant: No appearance.
For the Respondent: Mrs. Aboni, Home Office Presenting Officer.

DECISION AND REASONS
Introduction
1. Although this is the Secretary of State who is appealing in these proceedings, for convenience I will continue to refer to the parties as they were in the First-tier Tribunal.
2. The appellant is a national of Pakistan. On the 27 April 2015 he applied for entry clearance on the basis of his marriage on the 12th October 2014 to a British national. She is Mrs Aneesa Hussain, hereinafter referred to as his sponsor.
3. His sponsor was required to demonstrate by the required proofs in Appendix FM SE that she had a gross income of at least £18,600. The application stated she had two jobs. The first was with Central Manchester Foundation Trust. She had been in this employment since April 2013 and earned a gross annual salary of £16,328.16. She said she was also employed by Azeem Halal Meats Ltd since September 2014 and earned a gross salary of £9600 per annum.
4. The application was refused on 5 August 2015. There were no issues with the employment with Central Manchester Foundation Trust. The refusal related to the proofs in relation to Azeem Halal Meats Ltd. Appendix FM-SE required the production of a letter from the employer setting out details of the employment. However, the sponsor had submitted a letter from the firm’s accountant rather than the employer. Subsequent to the refusal she submitted a letter from the employer. Furthermore, she stated she was paid £623.56 per month in cash. However, the bank statements provided did not show lodgements corresponding to the pay slips.
The First tier Appeal
5. The appeal was heard by First tier Judge Turnock and allowed on article 8 human rights grounds. The judge recorded at paragraph 31 that the sponsor was paid in cash monthly for her work at Azeem Halal Meats Ltd. The sponsor stated that she saved up the cash and on the 6 March 2015 deposited five months wages, amounting to £3741.36. On 8 April 2015 she deposited her monthly earnings. Then, on 7 September 2015 she deposited £3123.20 followed by a deposit of a month’s wages on the 6 November 2015. The judge referred to the P 60 submitted which showed for the year ended 1st April 2015 her total income was £21,666 and the following year was £31,886.1.
6. At paragraph 36 the judge described the banking of her wages as somewhat unorthodox but concluded that the evidence produced confirmed her evidence and that the rules only required the bank statements to show the salary had been paid into the account but not necessarily on a monthly basis. The judge concluded at paragraph 37 that the documentation sent with the application met the immigration rules. The conclusion was that the refusal was a disproportionate interference with the appellant's article 8 rights.
The Upper Tribunal
7. The respondent sought permission to appeal contending that the judge had failed to have regard to the requirements of appendix FM SE in respect of the employment letter submitted and the deposit of wages into the sponsor’s account. It was submitted that the judge erred in considering post-application bank statements. Consequently, the judge was wrong to conclude the requirements of the rules were met and allow the appeal on article 8 grounds on this premise. The judge failed to demonstrate compelling circumstances warranting consideration outside the rules.
8. Permission to appeal was granted on the basis grounds advanced were arguable. In particular, it was arguable the judge failed to explain adequately why the appeal could be allowed in the absence of the missing documentation.
9. There is a letter on file dated the 15 March 2017 from the appellant's representatives indicating their instructions are to withdraw the appeal. However, it is the respondent who is appealing. Mrs. Aboni suggested that I hear the appeal and if an error of law was found, remake it.
Conclusions.
10. It is not apparent how the judge concluded the requirements of appendix FM SE were met. The required proofs are to be supplied with the application. The documentation must be historical linked to the date of application. The appellant did not submit a letter from the employer as required. Furthermore, the bank statements did not show corresponding lodgements with the wage slips. The judge was wrong in stating that the deposits do not have to correspond in this way. The judge also took into account the bank statements which post dated the application. The production of a P.60 is not a substitute for the proofs in Appendix FM SE.
11. Consideration of article 8 in this situation involves looking at matters through the prism of the rules. Article 8 is not a general dispensing power. The rules not having been met the judge offers no explanation as to why the appeal should be allowed on a freestanding article 8 basis.
12. I find the decision materially errs in law. I remake the decision and dismiss the appeal. The provisions of appendix FM are meant to be article 8 compliant and represent the respondent's attempt at immigration control in relation to entry clearance by spouses. The appellant did not meet the requirements of the rules in his application. It is open to him to make a properly documented application. I find nothing disproportionate in the outcome.

Decision
The decision of First-tier Judge Turnock allowing the appeal on human rights grounds materially errs in law. I set that decision aside and remake the decision, dismissing the appeal of Mr Tanveer.

Deputy Judge Farrelly

3rd April 2017