Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/12069/2015
ia/12070/2015, ia/12071/2015
ia/12072/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decisions & Reasons Promulgated
on 15 December 2016
on 17 January 2017

Before

Mr C M G OCKELTON, VICE PRESIDENT
& UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellants
and

MACHADO MOREIRA HENRIQUE SANTOS + 3
Respondents

For the Appellant: Mr M Matthews, Senior Home Office Presenting Officer
For the Respondent: Mr D Duheric, of Duheric & Co, Solicitors

DETERMINATION AND REASONS
1. Parties are as described above, but the rest of this determination refers to them as they were in the FtT.
2. On 19 January 2015 the first appellant ("the appellant") applied for further leave to remain in the UK as a Tier 1 (entrepreneur) migrant under the points-based system. The other appeals depend on his.
3. The SSHD refused the application on 13th of March 2015. 20 points had been claimed under the heading, "Applicant registered as self-employed or director within 6 months of grant". At pages 2-3 of the decision documents were found not be acceptable "because they are not dated within the 8 months after your initial grant of leave". No points were awarded. 20 points were claimed under the heading, "Creation of jobs in the UK". At pages 3-4 the decision states that payments to one employee were discounted because he had been paid less than the national minimum wage. No points were awarded under this heading either.
4. If the points claimed under those two headings had been awarded, the application would have succeeded.
5. Designated FtT Judge Murray allowed the appellant's appeal by decision promulgated on 15 April 2016. She found the appellant and his two witnesses credible; that he had coped without legal assistance with the stringent rules in his first entrepreneurial application; that the respondent misled him into believing that in his further application he would not be required to provide the exact documents requested; and that the respondent "must have known that he was self-employed and running his business as he should have been" (paragraphs 58 to 63).
6. At paragraph 64 the judge went on, "It is true that the exact specifications of the rules have not been satisfied, but I find that in a case like this the rules should be interpreted on a common sense basis. The SSHD should have exercised her discretion differently and considered all the evidence provided in the round."
7. Turning to the second point of refusal, the judge found this to be explained by an error admitted by the appellant's accountants, a multinational firm, and said at paragraph 66, "The Home Office states they had no choice but to refuse the application on this basis but this is where I find that evidential flexibility should have come in".
8. At paragraph 68 the judge said that the appeal fell also to be allowed on the basis of article 8 of the ECHR, outside the immigration rules.
9. The SSHD appeals to the UT on 3 grounds: (1) whether the judge took into account evidence prohibited by section 85A of the 2002 Act; (2) error in allowing the appeal under the rules, having acknowledged that the rules had not been met; and (3) inadequacy of reasoning for the outcome under article 8.
10. In view of the way the case developed in course of submissions before us, and in light of concessions on both sides, we need not delve into the extent of error disclosed by ground (1).
11. On the best possible view for the appellant, there was nothing before the FtT by which it could properly have been held that his application met the terms of the immigration rules.
12. The points-based system does not include any provisions by which the judge could apply "common sense" or "discretion" and find that points "ought" to have been awarded.
13. The reference to "evidential flexibility" is vague. There are no provisions under that heading in the rules, case law or elsewhere to permit the conclusion reached by the judge.
14. The respondent accepts the judge's factual findings on error coming about through the fault of the appellant's accountants and through no fault of his, and on the matter being corrected since; but no matter how convincing the explanation, it was legally irrelevant to the outcome.
15. Mr Matthews helpfully confirmed for us that (a) if the outcome of these proceedings was adverse to the appellant he would have until 14 days after proceedings were exhausted to submit an application of a similar nature, and if it complied with the rules, there was no reason to think that it would not succeed; (b) the document at page D1 of the respondent's bundle, a "small earnings exemption certificate" from HMRC dated 1 March 2014, would be accepted in any future application as satisfactory under paragraph 46SD of appendix A; and (c) Judge Murray's findings on the facts, so far as relevant, would be taken into account.
16. Our decision was formally reserved, but we indicated that it would be along the following lines.
17. The judge erred in law by allowing the appeal under the immigration rules, there having been no evidence by which it could be shown that the application met the terms of the rules.
18. It is irrelevant whether there is evidence, provided at a later date, by which the application (or a further similar application) might have succeeded.
19. The appeal could not properly be allowed under article 8 when the appellants have the recourse of an application under the points-based system which is likely to succeed. It is never disproportionate to expect that someone in a position to make such an application should do so.
20. The decision of the FtT is set aside. We remake it thus: the appellant's appeal, as brought to the FtT, is dismissed on all available grounds.
21. No anonymity direction has been requested or made.

16 December 2016
Upper Tribunal Judge Macleman