Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/47666/2014
IA/47673/2014

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Decision & Reasons Promulgated
On 26TH OCTOBER 2016
On 1st November 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL
G A BLACK

Between

MUHAMMAD UMAR BUTT
shumaila gull
NO ANONYMITY ORDER MADE
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Jafar (Counsel instructed by SZ solicitors)
For the Respondent: Mr S Staunton (Home Office Presenting Officer)

DECISION AND REASONS
1. This is an error of law hearing. It comes before me for consideration as to whether or not there is a material error of law in the decision the First-tier Tribunal (Judge Walker)("FtT") promulgated on 25th August 2015 in which the FtT dismissed the appeal on immigration grounds with reference to Tier 1 Entrepreneur PBS and human rights grounds under Article 8.
Background
2. The appellants are husband and wife and are citizens of Pakistan. The appellant entered the UK initially as a student and made the current application in September 2014. The respondent refused the application on the grounds that the appellant failed to meet the requirements under Appendix A as to trading. The refusal relied on the failure to provide a contract of services which showed duration and that there was no letter from any authorised body to confirm that the appellant had a business account. There is no issue taken in respect of the Article 8 decision.
First-tier decision
3. The FtT found that the contract of services was missing specified information (a date of termination) and to which the evidential flexibility rule was applicable [30]. The FtT found that the appellant had not met the requirements to show that he had a business bank account that would have met the trading requirements of the rules [31-33].
Grounds of application for permission to appeal
4. The appellant argued that the FtT erred by failing to distinguish between the requirements for evidence of trading which fall under AND or OR (paragraph 41SD).
5. In finding that the respondent should have applied paragraph 245 AA the FtT erred in continuing to consider the matter further with reference to the business account. The appellant was required to meet one of other of the evidential requirements not both.
Permission to appeal
6. Permission was refused by the FtT and by the Upper Tribunal (UTJ Coker). Permission to appeal was granted by the Vice President of the Upper Tribunal following a successful application for judicial review.
Rule 24 response
7. The respondent opposed the appeal contending that she was under no obligation to apply paragraph 245AA and there was no reason to suppose that the appellant could have provided the specified information. Reliance was placed on Rodriguez [2014] EWCA Civ 2.
Submisssions
7. The detailed submissions are set out in the record of proceedings and have been taken in to account by me, together with a bundle from the appellant amounting to 159 pages.
Discussion and conclusion
8. The appellant made an application as a Tier 1 entrepreneur. He provided a contract of services (which failed to show its duration) in order to meet the trading requirements of the rules. In addition he provided details of his Cashplus account and stated that this was used as a business account.
9. At the hearing before me it was accepted that the FtT found that the evidential flexibility rule under paragraph 245AA was applicable to the contract which did not provide all the specified information [30]. It was accepted that under SD-41 the appellant was required to provide one or more pieces of evidence and that a contract or the letter confirming the business account were capable of meeting the trading requirements. Further it was agreed that the flexibility rule was discretionary in its application.
10. It is now argued that the FtT erred by failing to restrict its consideration of the appeal at the point at which it found that paragraph 245AA applied to the contract. The FtT should not have continued to consider the evidence of the business bank account, which was not an additional requirement.
11. I disagree as the application was refused in respect of both matters, the contract and the business account and the FtT was required to consider all aspects of the appeal as is apparent from the decision and reasons. The appellant is inaccurate in his contention that the only basis of refusal was in relation to the contract. The respondent considered the application as a whole and in considering if paragraph 245AA was applicable looked at both the contract and the bank account. It was entirely open to the FtT to reach the decision that it did in that context. The appellant failed to meet the trading requirements in respect of the two pieces of evidence produced to support his application and that must have been a factor for the respondent under paragraph 245AA(c) and (d). The respondent can consider if there is other evidence that is capable of verifying omissions in the evidence produced. The FtT did not consider the evidence of the bank account as an additional requirement. It is clear that the appellant was pursuing the appeal before the FtT on both grounds including that the evidence of the business account met the Rules. I find no error in law by the FtT.
Decision
12. There is no material error of law disclosed in the decision which shall stand.
The appeal is dismissed.

Signed Date 31.10.2016

GA Black
Deputy Judge of the Upper Tribunal

NO ANONYMITY ORDER

NO FEE AWARD

Signed Date 31.10.2016

GA Black
Deputy Judge of the Upper Tribunal