Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/16284/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 September 2019
On 9 October 2019

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

emal Shahsawar
(ANONYMITY DIRECTION not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
(by an Entry Clearance Officer)
Respondent

Representation:
For the Appellant: Mr T Nawaz, Legal Representative from Crown Gate Law, Solicitors
For the Respondent: Mr A Everett, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against a decision of the First-tier Tribunal dismissing the appeal of the appellant against the decision of the Secretary of State refusing him entry clearance to the United Kingdom as a husband. The First-tier Tribunal Judge recognised that the main issue on the facts of this case was whether the Appellant did satisfy the immigration rules as that would illuminate the balancing exercise under article 8 of the European Convention on Human Rights. I am able to give an extempore judgment now because I have had the opportunity of considering the papers rather carefully before I came into the hearing room, and, although it is not a decision which gives me any satisfaction, it is at least a decision I can make quickly so that appropriate advice could be given.
2. The appellant's case is entirely straightforward. He is married to a British citizen; he wants to travel to the United Kingdom to join her and he says that he satisfies the requirements of the Rules. The Entry Clearance Officer did not agree. The Entry Clearance Officer did not agree because he was not satisfied with the evidence about the income earned by the appellant's wife. In order to satisfy the requirements of the Rules she depended on two jobs. Her main employment is not being doubted at all. She worked as a care home assistant of some kind and said she supplemented that income with a part-time job.
3. The evidence that she had a part-time job was not believed by the Entry Clearance Officer. I say immediately that I have concerns about aspects of that decision. The decision was based on an interview with the appellant and her sponsor and the alleged employer but the sponsor says that she was working as a care home assistant and it was not convenient to discuss things with the Entry Clearance Officer when she was telephoned and that her employer was driving when he was contacted and was not in a position to attend to detailed questions. I do not know if these claims are well founded but they certainly might be, and, if they are, then it seems to me very undesirable that the Entry Clearance Officer continued with the interview. What the Entry Clearance Officer should have done is to have arranged a time that was convenient to be interviewed. If the Entry Clearance Officer telephoned at a time that was said to have been convenient but was told it was not convenient when contact was made at the arranged time then it might have been appropriate to draw adverse inferences. However, just to telephone someone at a time convenient to the Entry Clearance Officer and to assume it was convenient to the person being interviewed, seems to me less than satisfactory.
4. Mr Nawaz for the appellant was very critical of this approach by the Entry Clearance Officer and I see much merit in the criticism but it does not help him today because it is not something that particularly bothered the First-tier Tribunal Judge. The Judge was dealing with an appeal and the judge noted, entirely correctly, that a main reason for refusal was that the Entry Clearance Officer was not satisfied that the employment was genuine. It was therefore incumbent upon the appellant to get the case in order and prove that the employment was genuine and that is what he failed to do. The interview records were not given much weight.
5. This is a slightly unusual case in that the minimal requirements set out in the guidance about what has to be proved is all present. There is documentary evidence that there is a regular income paid into a bank account, precisely as the Rules require. However I strongly disagree with Mr Nawaz's submission that that was sufficient, it is not. It is an irreducible minimum and if it is not done rule are not satisfied. In order to succeed it is still necessary to prove that the employment is genuine and the Judge was not satisfied that it was genuine. The judge gives reasons. They are particularly set out in paragraphs 16 and 17 of the Decision and Reasons. A main problem is that the written terms of employment were vague. Of course it could be that that reflects the fact that the employer is not very sophisticated but the employer is a director of a limited company and it would be wrong to regard these things as being of no consequence whatsoever.
6. There are aspects of the employment which do not sound right. The sponsor was said to work occasionally from her own home, sometimes from her employer's home, which was the administrative centre for a transport company that made use of yard in West Bromwich. It is possible that the business office is well away from the lorry yard. That claim is capable of being right but might not be entirely usual in the transport industry. There was nothing in the written terms of employment that indicated when the Sponsor was required to work, what her holidays were or how much she was paid. These are all striking omissions. Neither is there anything that I can see that explains how her duties were discharged when the Sponsor was not present. Her employment was part-time, her hours, on her own account, varied considerably and it is hard to see precisely what she did. She has given an explanation but it was not accepted by the judge.
7. The judge also looked at the evidence from the employer. Of course, nobody has to give evidence before the Tribunal and cases have to be decided on the evidence that is there, not the evidence that is not, but the judge did comment adversely on the absence of the employer who, instead of attending, had written something described as an undated letter that I have read carefully with the assistance of the advocates. It is in the nature of a testimonial. It does not deal in any detail at all about precisely what the sponsor did, how she fitted in with the company and the nature of her work.
8. The judge said at paragraph 18 of his decision:-
"Given the observations above I find that the evidence is inadequate to discharge the burden of proof and I find that it has not been shown that the claimed employment with Maks Services (UK) Ltd is genuine".
9. That is a decision that was open to the judge. I have reflected again on this because I do realise the importance of this decision to the appellant and his wife, who I assume is the woman sitting in front of me, and I do realise how horrible this decision is if in fact it is wrong. It may be that the appeal to the First-tier Tribunal could have been decided differently on the evidence that was given but the judge heard the evidence, considered the evidence and has reached a view which I find to be wholly without legal error. It follows therefore that I dismiss this appeal.
10. The appellant no doubt will be given appropriate advice about further appeals. It does also seem to me that a fresh application might be possible. The Entry Clearance Officer in that event would have to reflect carefully on the criticisms I have made of the reasons the Entry Clearance Officer's decision about the employment evidence being unsatisfactory, but that is not a matter before me now.

Notice of Decision
11. I dismiss the appeal against the First-tier Tribunal's decision.

Signed

Jonathan Perkins

Judge of the Upper Tribunal
Dated 7 October 2019