Tribunal decisions

The decision

IAC-AH-DN-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29045/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 February 2017 and 2 March 2017
On 17 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

MD Habibur Rahman
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Saini, Counsel
For the Respondent: Mr D Clarke, Home Office Presenting Officer. (2 February 2017)
Mr A Melvin, Home Office Presenting Officer. (2 March 2017)

DECISION AND REASONS

1. This is an appeal by the appellant, a citizen of Bangladesh, against a decision of the First-tier Tribunal (Judge Davey) dismissing his appeal against the respondent’s decision of 14 March 2015 refusing him further leave to remain on the basis of his marriage.

Background

2. In a brief outline, the appellant is a citizen of Bangladesh born on 18 December 1989. He first entered the UK on 31 January 2010 as a Tier 4 Student with leave to remain until 13 April 2013. His leave was subsequently extended to 2 March 2016. However on 13 February 2015 his leave was curtailed because it was the respondent’s view that he had submitted a TOEIC certificate from ETS which had been fraudulently obtained by the use of a proxy test taker. On 4 March 2015 the appellant applied for leave to remain on the basis of his marriage to his sponsor. They went through an Islamic ceremony on 2 September 2014 and their marriage was registered on 13 October 2014.

3. This application was refused on the basis that the appellant could not meet the suitability requirements set out in Appendix FM as his presence in the UK was not conducive to the public good in the light of his conduct in fraudulently obtaining his TOEIC certificate. The respondent also found that the appellant did not meet the eligibility requirements as he had been without leave in the UK in excess of 28 days before making his application.

4. At the hearing before the First-tier Tribunal it was accepted that the eligibility issue was not being relied on but the suitability issue was pursued. Having heard oral evidence and considered extensive documentary evidence, the judge was not satisfied that the respondent had established that the appellant had used a proxy test taker for the speaking test. It followed that in those circumstances the suitability and eligibility requirements under Appendix FM were met.

5. The judge went on to consider whether the appellant could meet the requirements of paragraphs EX.1(b) and EX.2 but found that he could not. Further, he was not satisfied that there were insurmountable obstacles in the appellant and his wife returning to Bangladesh and there were no exceptional circumstances justifying looking at the matter under article 8 outside the Rules. For these reasons the appeal was dismissed.

The Error of Law

6. In the grounds of appeal it was argued that there had been no issue about the income threshold in the respondent’s decision and that the refusal centred principally on eligibility and suitability. Having found that those requirements were met, the judge did not need to go on to consider paragraph EX.1. Further it is argued that he erred in his approach to the assessment of insurmountable obstacles.

7. At the hearing before me on 2 February 2017 it was accepted by Mr Clarke that the judge should have considered whether the appellant could meet the financial requirements of the Rules. However, as Mr Clarke had not had a proper opportunity of considering the financial documents submitted in support of the application, the hearing was adjourned.

8. At the renewed hearing Mr Melvin accepted that the documents submitted had been sufficient to meet the requirements of Appendix FM and Appendix FM-SE. In these circumstances, he was prepared to concede that the appeal should be allowed in relation to the marriage application.

9. Accordingly, I am satisfied that the judge erred in law by failing to consider whether the appellant was able to meet the financial requirements of the Rules, having found that the eligibility and suitability requirements were met.

Re-making the Decision.

10. I am satisfied that the documentary evidence submitted with the application showed that the appellant could meet the financial requirements of the Rules. There was evidence that his spouse was earning £17,200. That sum fell short of the required amount of £18,600 but there was evidence that the sponsor had savings sufficient to show that there were savings of £16,000 plus two and a half times the difference between the gross income earned and £18,600.

11. I should record that an issue was raised at the hearing on 2 February 2017 and is addressed in Mr Saini’s skeleton argument on a possible inconsistency in Appendix FM-SE between para 11 and para 11A(c) about which cash savings could be taken into account but, in the event, this was not a point which needed to be resolved for the purposes of this appeal.

Decision

12. The First-tier Tribunal erred in law and the decision is set aside. I re-make the decision by allowing the appeal against the decision to refuse leave to remain as a spouse. No anonymity direction was made by the First-tier Tribunal.

Signed H J E Latter Date: 16 March 2017

Deputy Upper Tribunal Judge Latter