Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/10605/2015
HU/10573/2015
HU/10584/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 April 2017
On 19 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

MRS SHOKORIA ZARMIR
miss muslima zarmir
mr abdul REHMAN zarmir
(ANONYMITY DIRECTION not made)
Appellants
and

ENTRY CLEARANCE OFFICER, ISLAMABAD
Respondent

Representation:
For the Appellant: Mr A Decker as Non-Legally Qualified Representative
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer

DECISION AND REASONS
1. These are appeals by the Appellants against the decision of First-tier Tribunal Judge L M Shand QC (the judge), promulgated on 1 December 2016, in which she dismissed their appeals. The appeals to the First-tier Tribunal had been against the Respondent’s decisions of 6 October 2015, refusing deemed human rights claims (in the form of entry clearance applications) for the Appellants to join the Sponsor, Mr Ismail Zarmir, in the United Kingdom. The first Appellant is the Sponsor’s wife and she is the mother of the second and third Appellants. The Sponsor is the children’s father.

The judge’s decision
2. The appeals came before the judge on 17 October 2016. The Sponsor was not legally represented but he attended with a family friend, Mr A Decker. Mr Decker sought to present the Appellants’ case before the Tribunal. At paragraph 9 the judge makes reference to Mr Decker, stating that the Sponsor was an articulate and fluent English speaker, and that it was he who presented the Appellant’s case, conferring at times with Mr Decker. It is also stated that Mr Decker was permitted to make some closing submissions at the end of the hearing.
3. There were essentially three live issues in the appeals. The first was whether or not false representations had been made by the Appellants when making the applications. This issue is resolved in the Appellant’s favour at the end of paragraph 15. The second issue was that relating to whether or not the first Appellant met the English language requirements under Appendix FM to the Rules. This too was resolved in the Appellant’s favour, at paragraph 30. The third and most important issue was that of the financial requirements under Appendix FM, with reference to Appendix FM-SE. In addressing this issue the judge took the date of applications as being 1 June 2015 (see paragraph 2).
4. She then proceeded on the basis that the only bank statements submitted with the applications had been those covering the months November 2014 to April 2015. It is clearly stated at paragraph 17 that there was no bank statement covering May 2015. As a result of this the judge reached the conclusion that the evidence provided did not satisfy the particular requirements of Appendix FM-SE. It is said that the income reflected in the evidence covering November 2014 to April 2015 was insufficient to meet the agreed financial threshold in these appeals of £24,800. A further point made by the judge (in paragraph 21) is that cash wages of £216 a month could not be taken into account because the Sponsor, when depositing this money into his account, topped the figure up to £220 and as this £220 figure did not precisely match the £216 wage the judge took the view that the income could not be considered. At paragraph 22 the judge suggested even if this cash income could be taken into account it was only to the extent that the net figure was relevant, not the gross figure. On the judge’s calculations the net figure when totalled up over the course of the relevant period would result in a figure below the £24,800 threshold.
5. The final point in respect of the evidential requirements is taken at paragraph 23, in which the judge refers to an employer’s letter for Italianio Pizza and notes that the letter was undated. In the judge’s view this could not comply with the requirements of Appendix FM-SE paragraph A1.2(b).
6. As a result of his findings the judge concludes that the requirements of Appendix FM were not satisfied and therefore she dismissed the appeals purportedly on the erroneous basis that the Appellant was able to assert that the Respondent’s decisions were not in accordance with the Immigration Rules (the appeals are governed by the amended provisions of the Nationality, Immigration and Asylum Act 2002).

The grounds of appeal and grant of permission
7. The grounds of appeal, though rather lengthy, can be boiled down to the following: first that there was procedural unfairness by the judge in her refusal to allow Mr Decker to present the Appellants’ case during the course of the hearing; second, the judge materially erred in law when considering the evidence and requirements of Appendix FM-SE. It is said that relevant evidence was overlooked, in particular a bank statement covering May 2015.
8. Permission to appeal was granted by First-tier Tribunal Judge Pooler on 13 March 2017. The grant of permission makes reference to the procedural unfairness challenge and goes on to suggest that if there had been unfairness this might have materially affected the presentation of the Appellant’s case in relation to the financial requirements under Appendix FM.

The hearing before me
9. The Sponsor did not attend the hearing. I was satisfied that notice of hearing had been sent out to the correct address, that the Sponsor was aware of the hearing and that I could proceed in his absence. In any event Mr Decker who had appeared below, also attended this hearing. He informed me that the Sponsor had not wanted to attend.
10. The preliminary issue to be decided was whether Mr Decker could indeed represent the Appellants (and, in effect, the Sponsor) in the Upper Tribunal. Mr Decker provided me with a short document entitled “letter of authority”, dated 2 April 2017, which purported to confirm on the Appellants’ behalf that Mr Decker was able to represent them at this hearing. I made certain enquiries of Mr Decker at the outset about the nature of his representation. He confirmed to me that he was a friend of the family, that he was a flatmate of the Sponsor, and had met him through their local mosque. He also confirmed that he had no financial relationship with the Sponsor or the Appellants, that no money had exchanged hands at any stage, that he himself is a student, and that he is not engaged in any business whatsoever relating to the provision of immigration advice or representation. Mr Singh did not seek to challenge any of this information.
11. I concluded that Mr Decker was indeed a family friend and not a person engaging in any relevant business. Therefore he was not a person whose representation at the hearing was prohibited by virtue of section 84 of the Immigration and Asylum Act 1999. Instead, he was a family friend whose ability to represent at a hearing has long been recognised by the Tribunal (see for example RK [2011] UKUT 409 (IAC)). In consequence of the foregoing, I decided that Mr Decker was able to represent the Appellants before me.
12. There followed a discussion about the correct date of the applications made by the Appellants to the Respondent. As I have mentioned already, the judge proceeded on the basis that these were made on 1 June 2015. Both representatives agreed that this was in fact incorrect and that the applications had in fact been made on 26 June 2015.
13. I then heard from Mr Decker. He relied on the grounds of appeal. In respect of the representation issue he submitted that the judge had refused to allow him to present the case as the hearing unfolded. The judge had permitted him to confer with the Sponsor and indeed to make some closing submissions at the end of the hearing but that was not, submitted Mr Decker, the same as being able to present evidence and potentially ask questions and seek clarification during the course of the hearing. Mr Decker added that the hearing had ended very late in the day and that if he felt that submissions were rather rushed, and he came away believing that he had not been able to set out all that he had wanted to in those closing submissions.
14. On the representation issue Mr Singh very candidly referred to the note of the Presenting Officer which as far as Mr Singh could see was consistent with Mr Decker’s account, as set out above. He acknowledged that there was a difference between a Sponsor or family friend being a representative and a McKenzie Friend. Mr Singh suggested that if Mr Decker or people in a similar position were not confined to being McKenzie Friends, allowing them to appear before the Tribunal and present cases would amount to the creation of a “new category” of representative, and this should be avoided. Mr Singh did however acknowledge that judge’s have case management powers which enable them to deal with proceedings before them in a manner they deem fit, subject to the requirements of procedural fairness to both parties.
15. I then asked both representatives about the issue of whether any procedural unfairness relating to representation was material to the outcome of the appeals. This involved a somewhat in-depth consideration of the requirements of Appendix FM-SE, and the evidence submitted with the applications and considered by the judge. I will deal with these matters in more detail below when setting out my decision on error of law.
16. For present purposes Mr Decker submitted that the judge had got the date of the applications wrong, had overlooked material evidence, in particular a bank statement covering May 2015 and had as a result arrived at incorrect conclusions as to the satisfaction of the financial requirements under Appendix FM. I then gave Mr Singh some time to consider what had been said during the discussion on Appendix FM-SE and whether he had any views, upon reflection, as to the existence of material errors or otherwise.
17. On resuming the hearing Mr Singh agreed that there were material errors in the judge’s decision. These flowed from the judge misapprehending the date of applications. It followed from this erroneous premise that he appears then to have overlooked relevant evidence. Mr Singh accepted that the issue of false representations had indeed been resolved in favour of the Appellant, as had that relating to the English language requirement. The only additional point Mr Singh wished to make was in respect of whether the pizza employer’s letter, being undated, could comply with the requirements of Appendix FM-SE. Upon checking these provisions, in particular paragraph 2b of that Appendix, he accepted that such letters did not have to be dated (or at least the omission was immaterial here). He also accepted that all other specified information was contained within the relevant letter.

Decision on Error of Law
18. I conclude that there are material errors of law in the judge’s decision.
19. The first error relates to that of representation. Provided that a person is not prohibited from representing before the Tribunal by virtue of section 84 of the Immigration and Asylum Act 1999, with reference to section 82 of the same Act, and provided there is nothing else untoward about the nature of the representation (for example any coercion or a potential conflict of interest), a person such as Mr Decker is entitled to represent an appellant. This form of representation has been recognised and accepted by both the First-tier and Upper Tribunal for a number of years (see, for example, RK, above): there is no question of some form of impermissible “new category” of representative being created. The nature of the prohibition of certain representation is set out in the Procedure Rules for both Chambers, and is quite apparent that judges have the relevant powers under these Rules to manage hearings and representation in a fair manner: that is simply a matter of judge-craft.
20. Having examined the Record of Proceedings on file, having heard what Mr Decker said before me, and with reference to the Presenting Officer’s note on Mr Singh’s file, I am satisfied that the judge wrongly sought to restrict the nature of Mr Decker’s representation at the hearing before him. It is one thing to be permitted to confer with an appellant or a sponsor and then to make closing submissions at the end of a hearing; but it is another to be able to undertake effective presentation of evidence during the course of the hearing. This may include questions to an appellant or sponsor and/or clarification of evidence at the outset, during the hearing, or indeed at the end of a hearing. A judge can, and should, use their case management powers to ensure fair, efficient, and orderly conduct of hearings, whoever the representatives may be.
21. In light of the above I conclude that judge’s restrictive approach to the nature of Mr Decker’s representation constituted procedural unfairness.
22. The second error committed by the judge may have flowed from her first error. However it may not, and thus what follows is either further or in the alternative to that first error identified in the preceding paragraphs. Either the first error is rendered material by the second, or the second stands alone.
23. It is clear that the judge was factually wrong to have taken the dates of applications as being 1 June 2015: they were made on 26 June 2015. Thus, in considering compliance with the relevant Rules the judge has effectively missed out an entire month. That in and of itself would not necessarily have led to material errors. However, weighing up everything that I have seen and heard I conclude that the judge has failed to have regard to material evidence before her. It is easiest if I set out the relevant steps that have led me to this conclusion.
24. First, the Appellants have always relied on two employments of the Sponsor as the basis of their applications: that with Shuropody and that with Italiano Pizza. There has never been any dispute about the former employment.
25. Second, it had always been agreed the relevant financial threshold in these cases was £24,800 gross income per annum.
26. Third, the applications had been made on the basis that the relevant period of income relied on to which specified evidence had to relate was December 2014 to May 2015. It is at this stage that the judge’s erroneous view of the date of application has probably had important consequential effects.
27. Fourth, the wages from Italiano Pizza were paid to the Sponsor in cash. The wages from Shuropody were paid to the Sponsor directly into his bank account.
28. Fifth, I am satisfied that a bank statement covering the month of May 2015 (the statement itself is dated 7 June 2015) was submitted together with the application, but was not included in the Respondent’s appeal bundle. I accept what Mr Decker has told me about this. In addition, upon review the Entry Clearance Manager acknowledged that retained documents (i.e. documents sent with the application and kept by the Respondent) could not be located. Further the Appellants had been consistent in asserting that this document had been sent in with the application: it is not a question of a last minute assertion that a missing document had in fact been provided. Finally Mr Singh has not sought to challenge any of this evidence. I conclude that the bank statement dated 7 June 2015 was provided at the hearing before the judge and was brought to her attention and that of the Presenting Officer (although it is accepted that the statement was not contained in the Appellant’s bundle).
29. Sixth, I have admitted the relevant bank statement into evidence before me under Rule 15(2A) of the Upper Tribunal Procedure Rules and without any objection to Mr Singh. Having regard to that statement, at page 2 one can clearly see that wages from Shuropody being paid into the account on 29 May 2015, and that £216 cash deposit was made on the same day. That figure of £216 corresponds with the net cash income obtained from the Sponsor’s employment with Italiano Pizza.
30. Seventh, wage slips for the period of December 2014 to May 2015 were before the judge. Thus there was a correlation between the bank statements and the wage slips covering the relevant six month period.
31. Eighth, the judge was wrong to have precluded reliance upon the cash income simply on the basis that when depositing the money into his account the Sponsor had topped up the figure of £216 to £220. Simply as a matter of common sense and reality, a person may well round up a figure in order that rather than depositing coins as one would have to do if the figure was £216, a few pounds are added in order that only notes need to be put into the account. Beyond that Mr Singh has very fairly (and correctly, in my view) accepted that there is really no rational basis for precluding any reliance upon wages where an amount goes into an account that clearly has an evidential link to the claimed wages and that is only a few pounds above that of the stated wages (stated that is in the relevant wage slips).
32. Ninth, as a result of the foregoing the judge was wrong in paragraph 22 of her decision to have taken into account only the net figure of the cash income. In light of Appendix FM-SE 1(n) she should have taken the gross figure into account. The gross monthly cash figure was £270, not £216.
33. Tenth, thus the gross income from the two employments over the course of the six month period covered by the wage slips and bank statements amounted to £12,451, as helpfully set out in a skeleton argument provided to me by Mr Decker. That would amount to an annual gross income of £24,902. That of course is in excess, albeit only just, of the relevant financial threshold applicable in these appeals.
34. Eleventh, in relation to the employer’s letter from Italiano Pizza it is correct that no date appears on it. However, the requirement for such letters to in fact being dated does not appear in Appendix FM-SE. All of the specified information required by the Appendix is contained in the letter. It is clear enough to me the letter covers the relevant period, and the omission of a date made no difference in respect of the Appellants’ ability to rely upon it.
35. In light of the above the judge’s approach to the evidence and Appendix FM-SE was wrong, and I set aside her decision.

Re-making the decisions
36. Both representatives were agreed that I should re-make the decisions in these appeals based upon the evidence before me. Mr Decker provided me with references to the relevant bank statements and wage slips contained in the Appellant’s bundle that was before the First-tier Tribunal (in particular at D1 to D11 and D13 to D24). He asked me to allow the appeal on the basis of the matters discussed previously in my decision. Mr Singh had nothing further to add. He took no issue with any of the conclusions and calculations that I have set out previously.
37. Having considered all the evidence before me, and the submissions made by the representatives, I have decided to allow the Appellants’ appeals against the Respondent’s decisions of 6 October 2015. Rather than repeat myself, I would refer back to all the matters I have set out when providing my reasons for concluding that the judge materially erred in law, at paragraphs 24-35, above. In short terms, by way of admissible evidence provided with the applications the Appellants satisfied all the relevant requirements of Appendix FM. The income from the two employments of the Sponsor was properly evidenced by way of specified information required under Appendix FM-SE. Wage slips and bank statements covering the relevant six month period of December 2014 to May 2015 had been provided. They showed the income from both employments being paid into the relevant bank account. I am entitled to take into account the gross cash income in respect of the Italiano Pizza employment in light of Appendix FM-SE 1(n). The employers’ letters are satisfactory and have not been challenged before me (indeed nor has any other aspect of the evidence). I find that the gross annual income for the Sponsor was £24,902 and that is in excess of the relevant threshold. The issues of alleged false representations and a failure to meet the language requirements are resolved in the Appellants’ favour by the judge and there has been no attempt to re-argue those issues before me.
38. Nothing above and beyond satisfaction of Appendix FM need be shown in order for these Appellants to succeed in their appeals. These appeals of course have been brought solely on human rights grounds, the amended provisions of the Nationality, Immigration and Asylum Act 2002 Act having application here. Therefore all the Appellants do indeed succeed on Article 8 grounds.

Notice of Decision
The First-tier Tribunal’s decision involved material errors of law. I therefore set it aside.
I re-make the decisions in these appeals.
I determine that the Respondent’s refusals of entry clearance breached the Appellants’ protected rights under Article 8 ECHR. It follows that these appeals are allowed.
No anonymity direction is made.

Signed Date: 12 April 2017
Deputy Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make full fee awards of £140.00 in each appeal (a total of 420.00). The Appellants submitted the correct evidence with the applications. The Respondent’s objections to the applications have been shown to be misconceived.

Signed Date: 12 April 2017
Deputy Upper Tribunal Judge Norton-Taylor