Tribunal decisions

The decision

IAC-AH-SC/KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/07644/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 26 May 2022
On the 20 June 2022

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

A G
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Dr Y G, Sponsor
For the Respondent: Ms A Ahmed, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a national of Nepal born in 2007. She appealed to the First-tier Tribunal against the respondent’s decision of 13 October 2020 refusing her application for entry clearance to join her parents in the United Kingdom.

2. The essential issue before the judge was whether the financial requirements of the Immigration Rules could be met.

3. The appellant’s parents, Dr G and his wife and their son, A, have been in the United Kingdom for some years, having been most recently granted leave to remain until September 2021. The appellant remained in Kathmandu with her grandmother, but recently her grandmother had become very unwell and since 2018 she had been cared for by her father’s younger sister. This was only ever meant to be a temporary arrangement and her aunt had now requested that the appellant’s parents resume their care of her.

4. The gross income of the appellant’s mother was calculated by the respondent in the decision letter as £22,223.54 per annum. She had provided no evidence of savings. In E-ECC.1.2 of Appendix FM which sets out the relevant requirements, there was required to be a gross annual income of at least £18,600, an additional £3,800 for the first child and an additional £2,400 for each additional child. The respondent concluded that the application could not succeed because the eligibility financial requirements were not met, in that it was necessary to show evidence of a gross income of at least £24,800, and that had not been done.

5. The judge, in essence, accepted this view, and concluded that the financial requirements of the Rules were not met. He noted that both Dr G and Mrs G are now working full-time and currently meet the financial requirements but in light of the evidence as set above of the earnings at the time of the application the requirements of the Rules were not met.

6. The judge went on to consider the appellant’s Article 8 claim and concluded that Article 8 was not engaged outside the Rules and the appeal could not succeed.

7. The appellant sought and was granted permission to appeal on the basis that the judge had misunderstood the relevant Immigration Rule in that since the appellant’s brother obtained a visa based on his private life and not as a dependent child, which it was argued was the requirement of the Rule, that he should have been left out of the calculation as to the necessary gross annual income.

8. At the hearing Dr G confirmed that he was happy to continue to appear without representation on behalf of the appellant. He argued that it was clear from his son’s visa that unlike what was said in his wife’s visa he was not granted leave on the basis of dependency but it was on the basis of having been in the United Kingdom in his own right on the basis of private life and the visa was based on his status. Also, as regarded his wife, she was not the appellant and was not a child so she was not included and was earning herself. From an immigration perspective therefore the son was not a dependant and his wife had already got a visa and was not an appellant or child and therefore the £18,600 requirement should not have been applied.

9. With regard to Article 8, this gave a right to respect for private and family life. He had the responsibility of looking after his daughter and Article 8 protected her right to live with her family. She was not expected to live without the family. She was now unable to live with her grandparents and his sister was very angry with him that she was continuing to have to look after the appellant. The appellant really wanted to join them in the United Kingdom.

10. In her submissions Ms Ahmed relied on the Rule 24 response. It had been accepted in MM (Lebanon) [2017] UKSC 10 that the minimum income requirement was lawful as this lessened the burden on the taxpayer and promoted integration.

11. As regards the proper interpretation of the relevant provisions of the Immigration Rules, it was argued that the requirements in the definition of “child” were perhaps individual criteria and that only one had to be satisfied and not necessarily all and that there was no conjunctive “and” which would have been necessary if both were to be met and such was to be found between (c) and (d). It was clear that the son was dependent on his parents in the literal sense so he could not be considered as independent, bearing in mind the purpose of the income requirement and therefore he fell under the definition. It was accepted that the copy of the policy that had been provided was Appendix FM section 1.7 Appendix armed forces but it was argued that the relevant provisions as regards the purpose of the guidelines at page 4 were general to such cases. The son did not come under any of the criteria set out at pages 8 and 9 and as a consequence required to be considered. But in any event, on a proper calculation of the figures, even if he were left out of account, there would still be insufficient income.

12. As regards Article 8, it was not a test of sole responsibility but exceptional circumstances and the judge had engaged fully with the evidence including bearing in mind that the appellant was not represented. It appeared that the son was now a British citizen, citizenship having been granted on 6 September 2021.

13. By way of reply Dr G argued that the definition of a child was clear and they had to be a dependent child from an immigration perspective. The child had obtained his visa based on his private life so he was not a dependent child and the £3,800 requirement did not apply. He should be excluded from the financial requirement and the £18,6000 minimum threshold was reached.

14. I reserved my decision.

15. The relevant provisions of Appendix FM E-ECC.1.2 states as follows:

“E-ECC.1.2. The applicant must be under the age of 18 at the date of application.

E-ECC.1.3. The applicant must not be married or in a civil partnership.

E-ECC.1.4. The applicant must not have formed an independent family unit.

E-ECC.1.5. The applicant must not be leading an independent life.

E-ECC.1.6. One of the applicant’s parents must be in the UK with limited leave to enter or remain, or being granted, or have been granted, entry clearance, as a partner or a parent under this Appendix.

E-ECC.2.1. Where a parent of the applicant has, or is applying or has applied for, entry clearance or limited leave to enter or remain as a partner under the Appendix, the applicant must provide specified evidence, from the sources listed in paragraph E-ECC.2.2., of-

1. (a) a specified gross annual income of at least:-

1. (i) £18,600;

2. (ii) an additional £3,800 for the first child; and

3. (iii) an additional £2,800 for each additional child; alone or in combination with

2. (b) specified savings of

1. (i) £16,000; and

2. (ii) additional savings of an amount equivalent to 2.5 times the amount which is the difference between the gross annual income from the sources listed in paragraph E-ECC.2.2.(a)-(f) and the total amount required under paragraph E-ECC.1.1.(a); or

3. (c) the requirement in paragraph E-ECC.2.3. being met.

4. In this paragraph ‘child’ means the applicant and any other dependent child of the applicant’s parent or the applicant’s parent’s partner who is-

1. (a) under the age of 18 years, or who was under the age of 18 years when they were first granted entry under this route;

2. (b) applying for entry clearance as a dependant of the applicant’s parent or of the applicant’s parent’s partner, or is in the UK with leave as their dependant;

3. (c) not a British Citizen, settled in the UK, or in the UK with valid limited leave to enter or remain granted under paragraph EU3 or EU3A of Appendix EU to these Rules; and

4. (d) not an EEA national with a right to be admitted to or reside in the UK under the Immigration (European Economic Area) Regulations 2016.

16. It is clear that as a minimum in an entry clearance case of this kind there must be a gross annual income of at least £18,600. It is also clear that there must be an additional £3,800 of part of the gross annual income for the appellant who is the first child since it is clear from paragraph 4 that “child” means the applicant and any other dependent child who meets the criteria set out below. I bear in mind Ms Ahmed’s argument about the proper interpretation of the various definitions of child, other than the appellant, i.e. a dependent child of the applicant’s parent or the applicant’s parent’s partner, and though the word “dependant” is used in the first line of this definition which would appear to suggest it is a child who is dependent upon a parent, it is sufficiently clear from paragraph 4(2)(b) that they have to be in the UK with leave as the dependant of the parent or the parent’s partner. Although the appellant’s brother meets the criteria of (a), (c) and (d) that he is under 18 years, not a British citizen (or rather was not a British citizen at the relevant time), not an EEA national, on my reading a proper interpretation of this is, bearing in mind that it is clear from his visa that he was not granted leave as a dependant, that despite Ms Ahmed’s argument about a conjunctive reading of the various paragraphs, that though he is dependent in the normal sense that a child is dependent on a parent in the particular sense in which he is required to be under paragraph 4(2)(b), he is not in the United Kingdom with leave as a dependant and therefore is not a child for the purposes of paragraph 1(a)(3)(iii). As a consequence the proper calculation is to add the £18,600 to the £3,800 and that makes a total of £22,400.

17. Unfortunately for the appellant, the unchallenged calculation of the gross income made by the respondent is that it comes to a sum of £22,223.54, and hence there is a shortfall in this case and as Ms Ahmed reminded me, there is no near miss principle that could enable the appellant to succeed as a consequence.

18. As regards the Article 8 evaluation I agree with Ms Ahmed that the matter was considered entirely properly by the judge who bore in mind the relevant evidence and considered it in the context of the appropriate legal tests.

19. As a consequence the appeal cannot succeed. Although the judge erred in adding into the equation the £2,400 for the son A, it is nevertheless the case that the total gross income is, albeit by a small margin, short of the necessary £22,400. I note from paragraph 42 of the judge’s decision that by the time of the hearing both Dr G and his wife were working full-time and could meet the financial requirements and as a consequence it may be that the best option for them provided the other requirements of the Rules can be met would be to make a fresh application. It is unfortunate as I have noted above, that the shortfall is such a small one but nevertheless there is a shortfall and the law is clear that in the circumstances the requirements of the Rules are not met. Bearing that in mind and the proper consideration of Article 8 in this case, it follows that this appeal against the judge’s decision is dismissed.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 9 June 2022

Upper Tribunal Judge Allen