Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number IA/18426/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 25th July 2016
On 06th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

MD RUHUL ALAM
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr W Talukder
For the Respondent: Mr N Bramble (Home Office Presenting Officer)

DETERMINATION AND REASONS
1. The Appellant entered the UK as a student and subsequently applied to remain as the spouse of the Sponsor, a British national. The application was refused for the reasons given in the Refusal Letter of the 10th of April 2014. The Refusal Letter contained a notice under section 120 of the 2002 Act. The Appellant under Notice and Grounds of Appeal of the 17th of April 2014 and pursuant to the section 120 notice served additional grounds on the 14th of April 20145, this was after the first listed hearing had been adjourned in November 2014 and before led to an adjournment of a hearing listed on the 22nd of April 2015 for the Home Office to consider the new grounds.
2. The appeal was listed for hearing on the 6th of November 2015 before Judge Thorne at Taylor House. It is clear from decision that there was a further application for an adjournment as the Home Office had not yet considered the Appellant's additional grounds and hoped to do so within 5 weeks, although that time scale was not guaranteed. For the reasons given in paragraphs 18 and 19 the application was refused and the appeal was heard in the usual way.
3. In paragraph 31 the Judge accepted the financial documents that had been submitted and referred to Appendix FM of the Immigration Rules but not to Appendix FM-SE. There had been no cross-examination of the Appellant or Sponsor on the documents and it was not suggested that the Sponsor was not in receipt of the income.
4. The Respondent sought permission to appeal to the Upper Tribunal in grounds of application of the 2nd of January 2016. It was argued that the Judge had not considered paragraph 12 of Appendix FM-SE which listed the permitted benefits that provided exemption from the higher income threshold and required at least one personal bank statement in the preceding 12 months that showed the payment into the account. There were no bank statements prior to the application or the section 120 additional grounds. The Appellant had not met the Immigration Rules and the Judge had erred. Permission was granted by Judge Andrew on the 6th of June 2016.
5. The parties attended the hearing in the Upper Tribunal and made submissions which are set out in the Record of Proceedings. In addition to the basis point being made it was submitted by the Home Office that the allowable benefits did not include ESA and if ESA payments were excluded from the calculations then the couple did not earn sufficient to meet the income support level required. That being the case consideration of EX.1 and article 8 would be required. For the Appellant it was argued that the Judge had been in a position to assess the case as a whole and that the Home Office had not raised these issues at the hearing.
6. The Home Office grounds of application wisely did not criticise the Judge for refusing the adjournment application. There had been more than sufficient time for the further grounds to have been considered. Fairness is obtained by giving a party time to prepare and present their case and it was not unfair for the Judge to continue when the time allowed has been wasted.
7. That said the effect of the adjournment was that the Judge placed himself in the position of being the primary decision maker. The requirements of Appendix FM and FM-SE are well known to be strict and prescriptive and an Appellant has to show that all of the requirements were met.
8. The fact that the Home Office Presenting Officer did not question the Appellant or Sponsor on the financial aspect of the case is hardly surprising, the adjournment application was precisely on the basis that the evidence needed to be considered and had not been. In those circumstances the Home Office would not have been alert to the issues that arose from the further grounds and a failure to address could not safely have been taken as an acceptance that they were met. The failure to question was a reflection of the lack of appreciation of the Appellant's case and it was known that that was the Home Office's position.
9. It was incumbent on the Judge to assess the evidence against the requirements of Appendix FM and FM-SE and he failed to do so. I find that that was an error because he was aware that the Home Office had not considered the additional grounds and as the primary decision maker on this point the obligation was on him to consider the evidence and the requirements fully. Being aware of the limitations of the Home Office understanding of the case he was wrong to take their position as an acceptance of indication that the requirements were met and failed to make the required assessments.
10. From that finding, that he erred in believing that the financial requirements were met and that appropriate supporting evidence had been submitted it follows that the Judge should have proceeded to consider paragraph EX.1 of Appendix FM, article 8 and the possible application of the case of Chen. Since those issues involve further findings of fact, an assessment of the circumstances of the Sponsor and the Appellant and a balancing exercise under article 8 I am satisfied that it is appropriate in setting aside the decision to remit the case to the First-tier Tribunal for re-hearing on all matters.

CONCLUSIONS
The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
I set aside the decision.
I set aside the decision of Judge Taylor in the First-tier Tribunal and remit the case to be heard de novo by a different Judge.

Anonymity
The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and I make no order.

Fee Award
In remitting the appeal I make no fee award which remains a matter for the First-tier Tribunal on the conclusion of the re-hearing.

Signed:
Deputy Judge of the Upper Tribunal (IAC)

Dated: 5th September 2016