Tribunal decisions

The decision

IAC-AH-KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/00477/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th January 2017
On 15th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

mr Satnam Singh
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Richardson, Counsel, for Nasim & Co Solicitors, London
For the Respondent: Ms Ahmad, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of India, born on 12th January 1974. He appealed against the decision of the Respondent dated 1st December 2014 refusing him entry clearance to the United Kingdom as a spouse under Appendix FM of the Immigration Rules. His appeal was heard by a panel consisting of Designated Judge of the First-tier Tribunal Shaerf and Judge of the First-tier Tribunal Cassel on 4th March 2016. The appeal was dismissed on immigration grounds and human right grounds in a decision promulgated on 31st March 2016.
2. An application for permission to appeal was made and permission was granted by Judge of the First-tier Tribunal McCarthy on 15th December 2016. The grounds of application for permission to appeal argue that the panel failed to give adequate reasons for rejecting the Appellant's submission that the Respondent's interview record was incomplete and inaccurate. The grounds state that the panel failed to appreciate that the relevant provision of the Immigration Rules was discretionary and not mandatory and the panel therefore fell into error by saying the appeal must be dismissed. In the alternative the panel erred by relying on important additional reasons for refusal which had not been relied on by the Respondent without giving the Appellant a chance to deal with the new points. The grounds state that the errors are sufficient to set aside the panel's findings in relation to Article 8. The permission states that there may not have been proper consideration of the public interest requirements under Article 8. A person has to provide the financial evidence with the application in order to succeed under Appendix FM-SE and the panel considered evidence not supplied with the application when it made a positive finding at paragraph 31 regarding the financial requirements. Even if the Appellant were to succeed in terms of the suitability requirements, the findings on the financial requirements need to be reconsidered by the Upper Tribunal.
3. There is a Rule 24 response which states that the grounds amount to a mere disagreement and even if the panel did not take into account Counsel's submission concerning the interview transcript, this is not material to the dismissed appeal because the Appellant's immigration history and previous conduct have been accepted, (paragraphs 5,14,20,22,24 and 28). The response states that the panel was entitled, after considering the evidence, not to accept the explanation given. Paragraph 30 of the decision is referred to in which the panel considers the circumstances raised in the refusal letter; e.g. working illegally which are highlighted at paragraph 5 and not challenged in the grounds. The response states that with regard to Article 8 the panel considered the evidence and made reasoned findings.
The Hearing
4. The applicant has made an application as a spouse and has failed for two reasons. The first reason is the financial requirements and the second reason is suitability.
5. Counsel submitted that with regard to the financial requirements the Tribunal concluded in favour of the Appellant after taking into account evidence supplied after the date of application. I was referred to paragraph 31 of the decision and Counsel submitted that the documents considered were relevant to the twelve month period and the panel found them to be in order. Although the permission states that the financial findings in the decision may be incorrect, this was not pursued in the Rule 24 response and there was no cross-appeal. Counsel submitted that this is not a PBS case and because of that evidence can be produced if it is relevant to a period prior to the date of application, which is the case here. He submitted therefore that the panel was correct to accept that the financial requirements have been satisfied.
6. With regard to suitability Counsel submitted that the findings which adversely affect the Appellant have not been properly made as the panel approached the case in the wrong way.
7. I was referred to the refusal letter dated 1st December 2014. The decision is made under paragraph EC-P.1.1 of appendix FM. The Entry Clearance Officer states that the Appellant has contrived in a significant way to frustrate the intention of the Immigration Rules. This phrase does not form part of the Rules and the application is refused under paragraph EC-P.1.1 (c). He submitted that because of the way the refusal is worded, this could explain the error in the decision by the Tribunal. Four reasons are given as a means of showing how the Appellant contrived to frustrate the intentions of the Immigration Rules and these four reasons are based on misconduct on the part of the Appellant in the past. At page 2 of the refusal letter it is stated "Based on your immigration history and failure to disclose information material to your application, your use of an alias identity, I refuse your application under paragraph EC-P.1.1(c) of Appendix FM of the Immigration Rules (S-EC.2.2. (b))". Counsel submitted that this is the basis on which the refusal was issued. S-EC.2.2. (b) states that the applicant will be refused entry clearance on grounds of suitability if there has been a failure to disclose material facts in relation to the application. I was again referred to the refusal letter which hints that the Appellant's immigration history is the reason for the refusal but according to the terms of that letter that is not the case. Counsel submitted that the decision has been made based on the Appellant's past misconduct but it should have been made only on his failure to disclose material facts, (S-EC.2.2(b)). He submitted that a decision on past misconduct is a mandatory decision but a decision on the Appellant's failure to mention material matters is a discretionary decision.
8. I was referred to paragraph 28 of the decision and Counsel submitted that again the Tribunal has wrongly considered previous misconduct. The Appellant did use a different name but he gave a reason for this and when the case of ZH Bangladesh [2009] EWCA Civ 8 is considered this should not be held against him (paragraph 29 of the decision). Counsel submitted however that the panel missed the point and at paragraph 30 states that given the history of criminality which extended over many years the Appellant is not suitable for entry clearance. At this paragraph the judge states the appeal must therefore be dismissed. He submitted that this is the error. The Appellant's past misconduct is not the reason for the refusal, the reason is his failure to disclose that misconduct. He again submitted that because of this the Respondent was not relying on a mandatory provision of the Immigration Rules but was relying on a discretionary provision and so paragraph 30 of the decision must contain a material error.
9. Counsel submitted that this claim was dismissed on a basis not open to the Tribunal. The Tribunal states that the refusal is because, to grant entry to this Appellant would not be conducive to the public good but he submitted that it was not for the Tribunal to make this finding as it was not for his past misconduct that the application was refused.
10. The Presenting Officer first of all dealt with the financial situation and submitted that the financial requirements have to be met. The documents provided after the application was made consist of pay slips which have not been fully copied so it is not clear what the Sponsor's salary is. She submitted that this has to be resolved in the decision and as it is mentioned in the permission it is a live issue.
11. The Presenting Officer then referred to suitability and submitted that the Entry Clearance Officer refused the application on suitability grounds. She submitted that the Entry Clearance Officer only referred to S-EC.2.2. (b), which is failure to disclose material facts but he should have referred to S-EC.1.5. Under this paragraph exclusion of the Appellant can be found to be conducive to the public good because of the Appellant's conduct. She submitted that although this paragraph is not referred to in the refusal letter it is clear that it should have been and that the application must fail on suitability as this is a mandatory ground.
12. The Presenting Officer referred me to the Grounds of Appeal at paragraphs 9 to 11 which refer to S-EC.1.5. Although this is not mentioned in the refusal letter and this is not raised in the decision suitability was refused on two issues. The first one being the Appellant's conduct and immigration history and the second one his failure to disclose material facts in relation to the application. She submitted that this is properly dealt with in the decision at paragraph 5.
13. At paragraph 14 of the decision it is stated that Counsel for the Appellant at the First-tier hearing found that three of the suitability points can be accepted. The Presenting Officer submitted that at paragraphs 22 and 29 of the decision this is referred to. She submitted that these points were pursued by the Appellant's representative in court. She submitted that the panel accepted these points and the issue in the said case of ZH. She submitted that there are sufficient grounds, based on the Appellant's history, to find he is not suitable to be granted entry clearance to the United Kingdom under the Immigration Rules. That is what was found by the panel.
14. The Presenting Officer referred to the word "must" at paragraph 30 of the decision and she submitted that as the Appellant's conduct has been found not to be suitable the appeal must be dismissed and this is a mandatory ground.
15. Counsel made further submissions, again stating that the reason the application was refused was not because of the Appellant's history and previous conduct but was because of his failure to disclose material facts under paragraph S-EC.2.2 (b). He submitted that this is a core matter and I was referred not only to the refusal letter but also the Entry Clearance Manager's review letter. He submitted that it is stated that the refusal is based on paragraph S-EC.2.2 (b) of Appendix FM and the financial requirements. There is no mention of S-EC.1.5. He submitted that because of this the refusal is based on nondisclosure of material facts and that S-EC.2.2(b) is discretionary and not mandatory.
16. Counsel submitted that even if S-EC.1.5 had been mentioned a decision maker cannot state that an applicant is not suitable because of his criminality. He submitted that no explanation has been given of why exclusion of this Appellant would be conducive to the public good because of his past misconduct. Neither the Entry Clearance Officer nor the Entry Clearance Manager nor the Tribunal have given proper reasons for this. The test has not been applied under this paragraph. He submitted therefore that an incorrect test has been used by the Respondent and by the Tribunal and based on the decision made there has been no consideration of the fact that the result of this decision is the separation of husband and wife.
17. He submitted that if the Tribunal was going to make a decision based on S-EC.1.5 Counsel should have been alerted to this but was not.
Decision and Reasons
18. I have considered the financial aspects of this claim. I find that the panel has not dealt properly with the financial requirements. For Appendix FM-SE to be satisfied the financial evidence has to be submitted with the application (SS (Congo) and others 2015 EWCA 387). It is true that documents have now been provided which may satisfy the financial requirements but this does not lead to an acceptance under the Rules. This is an error by the First-tier Tribunal. The panel does not seem to have considered adequately the copy payslips which may not be satisfactory in themselves. The financial situation is a live issue. It is referred to in the permission.
19. The refusal letter states that the application is refused "based on your immigration history and failure to disclose information material to your application, your use of an Alias Identity. I refuse your application under paragraph EC-P.1(c) of Appendix FM of the Immigration Rules S-EC.2.2 (b)". This should of course have included S-EC.1.5 because of the wording in the refusal letter but it was not specifically referred to, in spite of the refusal partly being based on the appellant's immigration history, so arguably the appellant was not given a chance to deal with this.
20. The panel stated that the appeal must be dismissed. Counsel's argument is that this is an error as if only S-EC-P.1.1 is considered; the refusal would be discretionary, not mandatory. I find that the panel may have used "must" out of context but in any event I find that the claim cannot succeed under the Rules based on the financial requirements.
21. With regard to Article 8 I find that the errors referred to above have led to the panel's findings on Article 8 falling short. Public interest may not have been adequately considered as a result of these errors.

NOTICE OF DECISION
22. There are material errors of law in the First-tier Tribunal's decision promulgated on 31st March 2016 and it must be set aside.
23. All issues in this appeal have to be considered at any further hearing.
24. No findings of the First-tier Tribunal can stand. Under Section 12(2)(b)(i) of the 2007 Act and practice statement 7.2 the nature and extent of judicial fact-finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal. The members of the First-tier Tribunal chosen to reconsider the case are not to include Designated Judge of the First-tier Tribunal Shaerf and Judge of the First-tier Tribunal Cassel.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge I A M Murray