Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
HU/06850/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision Promulgated
On: 20th March 2017
On: 24th March 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Entry Clearance Officer
(Sheffield HUB)
Appellant

And

Marina Emelia Ababio
(Anonymity direction not made)
Respondent

For the Appellant: Mr D. Clarke, Senior Home Office Presenting Officer
For the Respondent: Ms D. Ofei-Kwatia

DETERMINATION AND REASONS

1. The Appellant is a national of Ghana, date of birth 2nd March 1957.

2. In 2015 she sought clearance to enter the UK as the spouse of a person present and settled in this country. The ECO refused, on the sole ground that the maintenance requirements had not been met, because Mrs Ababio’s husband had not provided both bank statements and invoices as evidence that his earnings from self-employment were as claimed.

3. The matter proceeded to appeal and on the 23rd December 2016 First-tier Tribunal Judge Devittie allowed the appeal. Judge Devittie accepted and found as fact that “without question” Mrs Ababio’s husband earned over £19,000 per year. The gentlemen in question, a Mr Victor Kwasi Ababio, had provided inter alia HMRC tax calculations, bank statements and self-assessment forms demonstrating that income. He provided a spreadsheet which showed the correlation between the cash deposits in his bank account and the self-employed income claimed for tax purposes. At paragraph 7 of the determination the Judge said this:

“The slight concern I have is that the appellant (sic) claims to be in self-employment as a consultant, but has not produced any invoices to show his earnings. The bank statements that he produced do show several deposits in varying sums, but there is no indication in these transactions as to who has made the payment into the appellant’s account. There is no evidence before me at all to demonstrate that the deposits in his account represent payment for invoices rendered by the Sponsor”

Then at 8:

“The appellant has in my view produced satisfactory and credible evidence, in accordance with appendix FM-SE, to show that she meets the financial requirements. The sponsor has produced his annual self-assessment tax returns and a statement of the calculation of the amount due by him. The sponsor has produced a Unique Tax Reference number indicating his registration with the HMRC. He has produced 12 months’ bank statements for the same period as the tax returns showing the income which he states from self-employment being paid into an account in his name. He has produced evidence of Class 2 National Insurance contributions. The sponsor has produced unaudited accounts, which in terms of the immigration rules, must be from an accountant who was a member of a UK recognized supervisory body” .

The Appeal

4. The ECO now complains that the Tribunal erred in law. It is submitted that the appeal should not have been allowed with reference to Appendix FM because:

i) There was not the evidence under FM-SE to demonstrate that the money paid into the bank account was from self-employed earnings;

ii) There was no evidence that the firm of accountants who had compiled the accounts were registered with a UK recognised supervisory body, as required by the Rules.

My Findings

5. I need say very little about ground (ii) since before me Mr Clarke did not seek to pursue it. He fairly recognised that it was not a matter raised by the ECO, nor the ECM who conducted the pre-hearing review. It was not a matter that had been placed in issue, and now that it had, Mrs Ababio had produced confirmation that the firm in question are regulated by the ACCA.

6. In respect of ground (i) the parties agreed that the relevant part of Appendix FM-SE is that set out in full in the refusal notice, the relevant part of which is at sub-paragraph (f). This states that applicants are required to produce:

“personal bank statements for the same 12 month period as the tax returns showing that the income from self-employment has been paid into an account in the name of the person or in the name of the person and their partner jointly”.

7. Mr Clarke pointed to the absence of invoices and paragraph 7 of the decision to submit that the sponsor had failed to establish a correlation between the money he claimed to have earned in self-employment, and the cash deposits made in his bank statements. I note that Mr Ababio has now produced a fresh bundle and made an application under the procedural rules to admit it, and that this bundle contains the ‘missing’ invoices. I do not think I need to look to those invoices to determine this appeal. That is because the rule itself does not require the production of invoices. It simply requires that there is a correlation between the money paid into the bank account, over a 12 month period, and the income declared to HMRC. There is no requirement, express or implied, for the production of invoices. The rule, framed in this way, meets the twin public policy objectives of ensuring that the couple are financially self-sufficient, and that ‘cash in hand’ payments are declared to the tax authorities. The applicant in this case and her sponsor have manifestly complied with the requirement. They have produced numerous tax documents, plus the bank statements and a detailed schedule demonstrating the correlation. It follows that Judge Devittie was quite right to have allowed the appeal.

Decision

8. The decision of the First-tier Tribunal contains no error of law and it has been upheld.

9. There is no order for anonymity.

Upper Tribunal Judge Bruce
17th March 2017