The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/01844/2011


Heard at Manchester Piccadilly
Determination Promulgated
On 16th January 2013
On 7th June 2013



(No Anonymity directION MADE)


For the Appellant: Mr Stone - Counsel
For the Respondent: Mr G. Harrison – Senior Home Office Presenting Officer


1. These are appeals by Rabia Banu Ilyas Patel and her four children, Masira Ilyas Musa Patel, Munira Ilyas Patel, Mahmedhuzaifa Ilyas Patel and Hanzlah Ilyas Patel, all citizens of India. The dates of birth of the Appellants are, 27th October 1972, 17th October 1992, 4th May 1994, 21st July 1996 and 26th July 2000 respectively. They appeal against the determination of First-tier Tribunal Judge Davies issued on 18th October 2011 dismissing their appeals against the decision of the Respondent made on 30th November 2010 to refuse to grant entry clearance to the appellants as the spouse and children of a person present and settled in the UK.
2. No request was made for anonymity and since none of the children are in the UK we do not consider an Anonymity Direction to be necessary.
3. On 15th December 2011 a Judge of the First-tier Tribunal granted permission to appeal against the determination of Judge Davies. He said,
“The appeals were dismissed because the IJ was not satisfied that the first Appellant and her husband intended to live together and he was not satisfied that the maintenance requirements of the Immigration Rules were met.
Permission to appeal was sought on the basis that the IJ had made a mistake of fact in that he mixed up two visitor’s visa determinations in finding that there was an inconsistency in the First Appellant’s case about whether she and her husband were in a relationship or not. Paragraphs 4 to 6 of the grounds seeking permission refer to this and they are arguable.
It is also arguable that the IJ fell into error of law in that he made no findings on certain aspects of the evidence that were before him. There appears to have been evidence of contact and the Appellant’s husband was himself in work. The IJ does not appear to have taken into account the husband’s income in calculating whether adequate maintenance would be available and he does not appear to have made any findings on the evidence of telephone contact that was before him. It is also arguable that the IJ’s findings concerning the ability of the third party sponsor family to provide some support are irrational. ”
4. Judge Davies found that the first appellant’s marriage to the sponsor was not subsisting. He dismissed the claim that third party support is available. He rejected the claim that the First Appellant had arranged employment in the UK that would give her an income sufficient to cover the deficit, estimated at that time to be around £57 per week, required to make up the difference between the funds available and the relevant Income Support Level.
5. At the start of the hearing before us Mr Harrison conceded that the marriage is subsisting and that there is no issue of accommodation. We do not therefore propose to deal with the grounds relative to the confusion over the two visit visa determinations which relate to the subsistence of the marriage.
The issue of maintenance
6. The Entry Clearance Officer dealt with the applications under Paragraphs 281 and 297 of the Immigration Rules (HC395 (as amended)). The maintenance requirements insofar as relevant to this appeal are set out at Paragraphs 281 (iv) and (v) and are,
281 (v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds;
297(v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and
7. The Entry Clearance Officer did not give any detailed reasons for his refusal of the application on maintenance grounds but relied on the fact that the appellants had not established a relationship with the sponsor so had not established that they could be maintained without recourse to public funds.
8. In KA  and Others (Adequacy of maintenance) Pakistan [2006] UKAIT 00065 the Asylum and Immigration Tribunal said,
‘The requirement of adequacy is objective. The level of income and other benefits that would be available if the family were drawing income support remains the yardstick.’
9. It was agreed before us that the appellants were required to show a total weekly income of £473.18, (income support level of £102.75 for the sponsor and his wife and £57.57 for each of four children plus a Family Premium of £17.40 and Council Tax of £20 per week).It was also accepted that the sponsor had a weekly income of £279.15 resulting in a shortfall of £91.28 per week.
10. The sponsor had savings in his account with Santander Bank at the date of decision and these can be taken into account. The bank statements before the Entry Clearance Officer were up to 16th November 2010 and at that date the savings amounted to £3268.97. Additional statements provided subsequent to the decision, show that the balance as at the date of decision, 30th November, was only £2328.69. Mr Stone adopted the higher figure and we accept that the calculation should be based on that higher level of savings. There was no objection to this from Mr Harrison.
11. In Jahangara Begum and others (maintenance - savings) Bangladesh [2011] UKUT 00246 (IAC) the Tribunal said,

“Where the likely income of a family falls below the level of adequacy as established in the case of KA and others (Adequacy of Maintenance) Pakistan [2006] UKAIT 00065 the shortfall can be met where there are sufficient savings . The assessment of the appropriate level of savings  is not an arbitrary calculation and the proper reference is to the length of the initial visa. If an appellant is able to meet the requirements of adequacy for the period of the initial visa, and there is no reason to believe that he will not be able to meet the maintenance requirements in the longer term, then he is entitled to entry clearance.”
12. In this case the period of the initial visa would be 2 years or 104 weeks so dividing £3268.97 by 104 would add £31.43 to the weekly income of the sponsor and reduce the shortfall to £59.85 per week.
13. Judge Davies heard and rejected evidence that a job would be available to the first appellant on entry to the UK. Although that finding was challenged by Mr Stone Judge Davies gave sound reasons for reaching his finding and the challenge by Mr Stone was no more than a disagreement with that finding. We do not disturb that finding.
14. Judge Davies heard evidence from Mr Dalal who had offered third-part support. In accordance with Mahad [2009] UKSC 16 the provision of third party support has to be considered very carefully in terms of the credibility of the offer, the availability of the funds and the likely duration that such support is available. Mr Dalal has a wife and three children to support. He is in receipt of tax credits. Judge Davies rejected his evidence that he was willing and able to provide third party support, taking the view that although he could supply free accommodation to the appellants he was not in a position to provide funds for their maintenance. Judge Davies did not take account, in reaching his findings, that Mr Dalal had produced a bank statement showing funds of over £107,000 on 14th September 2010, albeit dropping to £692.90 by 15th November 2010 (the date of decision the subject of the appeal is 30th November 2011). There was no explanation what those funds were, why they appeared in the account or why they fell by such a degree in such a relatively short period of time. It was not clear whether and to what extent the sum of money shown in the account had been taken into account in calculating the tax credit paid to Mr Dalal. Even though we have not been provided with an explanation of the provenance of the funds we are not satisfied that the funds that were available on the date of decision were available for the appellants; whatever the funds were, Mr Dalal clearly required them for his own purposes, hence the substantial and significant drop over a period of 2 months. We have paid no regard to the existence of those sums of money because we do not accept that they are available to Mr Dalal to distribute to the appellants.
15. Bearing in mind the careful scrutiny to be given where third party support is proposed, we cannot be satisfied that Mr Dalal is in a position in any event to provide such support. His savings do not amount to a sum of great significance on the date of the decision; his own personal income is clearly insufficient to enable him to support his own family, never mind contribute to the support of another, even for a short period of time. If he were to provide funds for these appellants his own finances would be reduced and his own family would fall below what is deemed by the government to be an acceptable level of income (otherwise he would not have been in receipt of tax credits). We therefore do not accept that Mr Dalal is able to provide the proposed third party support.
16. Mr Stone sought to persuade us that the shortfall in the sponsor’s income could be made up by the first appellant finding work before the sponsor’s savings ran out and that any deficit could be made up by third party support. There was no evidence before Judge Davies and no evidence before us that supported the submission that the first appellant would be able to find work; the job offer was rejected by Judge Davies. For the reasons ([15]-[16]) above we do not accept that there is possible third party support. We reject these submissions.
17. Although there was an error of law by the First-tier Tribunal judge such that the decision is set aside, we are satisfied that the appellants will not be supported adequately without recourse to public funds; we therefore dismiss the appeal.
Application to withdraw two appeals by Mr Stone
18. At the commencement of the hearing Mr Stone stated that he had instructions to seek our consent to the withdrawal of the appeals of the fourth and fifth Appellants, the two youngest children. He submitted that if these appeals were withdrawn, it would be possible for the maintenance requirements to be recalculated on the basis that there were only two children to support and it would then be open to us to find that the maintenance requirements were met because the available funds would have to maintain only two children and not four. We were of the view that at that time Mr Stone did not have such instructions, the sponsor being then on the phone to his wife seeking her agreement to this course of action. We reminded him that he was acting for the appellants and that his instructions had to come from them. After a brief adjournment he was able to tell us that he had the direct instructions of the first appellant together with instructions from his instructing solicitors to withdraw the appeals of the two youngest children and arrangements had been made for their care. He was hopeful that successful applications for entry clearance could be made for these two children at a later date. It was apparent that Mr Stone sought withdrawal of these two appeals on the basis that with two fewer appeals the money available could be redistributed between the remaining three appellants and the appeals would thus succeed.
19. We informed Mr Stone that it was our view, for the reasons set out below, that if the appeals of the two youngest children were withdrawn it would not make any difference to the calculation of monies available for maintenance. We asked if in those circumstances he still had instructions to request withdrawal of those two appeals and he confirmed he did. We agreed to their withdrawal. We have prepared and shall issue with this determination Notices in the prescribed form in accordance with paragraph 17 of The Tribunal Procedure (Upper Tribunal) Rules 2008 confirming the withdrawal of the appeals of:
Appeal no. OA/01869/2011 – Mahmedhuzaifa Ilyas Patel
Appeal no. OA/01876/2011 – Hanzlah Ilyas Patel
Applicable law
20. Section 82 of the Nationality Immigration and Asylum Act 2002 in so far as relevant to these appeals states:

(1)Where an immigration decision is made in respect of a person he may appeal to the Tribunal .
(2)In this Part “immigration decision” means—
(a)refusal of leave to enter the United Kingdom,
(b)refusal of entry clearance,
(4)The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.
E+W+S+N.I.This section has no associated Explanatory Notes
E+W+S+N.I.This section has no associated Explanatory Notes
21. Section 84(1) sets out the grounds of appeal insofar as they are applicable to these appeals.

(1)An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—

(a)that the decision is not in accordance with immigration rules;

(c)that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights;

(e)that the decision is otherwise not in accordance with the law;

22. Section 85 sets out the matters that can be considered.

(1)An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).
(2)If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.
(3)Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.
(4)On an appeal under section 82(1) , 83(2) or 83A(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(5)But in relation to an appeal under section 82(1) against refusal of entry clearance or refusal of a certificate of entitlement under section 10—
(a)subsection (4) shall not apply, and
(b) the Tribunal may consider only the circumstances appertaining at the time of the decision to refuse.
23. All five applications were decided by the ECO, refused and appeals submitted. The decisions the subject of this appeal were taken together on the basis of evidence put forward by the applicants at that time to the Entry Clearance Officer, such evidence to be considered to apply to all of the applicants. The appealable decisions are the refusal to issue entry clearance. The grounds upon which the appellants relied were that the decisions were not in accordance with the Immigration Rules. The evidence to be considered at the appeal is the evidence that was before the ECO together with evidence submitted later provided that the subsequent evidence appertains to circumstances at the time of the decision to refuse. Of particular relevance here is s85(5)(b).
24. The withdrawal of two appeals does not alter the fact that a decision was taken by the ECO on the basis of the applications and the evidence before him/her ie that the five applicants failed to meet all the criteria set out in the Immigration Rules. It is those decisions that were the subject of the appeal before Judge Davies and it is those decisions that are the subject of the appeal before us. That two of the appellants are no longer appellants does not alter the decision to be taken by us (or Judge Davies had they withdrawn before him) namely were the decisions taken by the ECO that the appellants did not meet the requirements of the Immigration Rules correct. The withdrawal of an appeal does not withdraw the decision of the ECO or the application.
25. At the time of the decision the funds were available for all applicants. To redistribute those existing funds to the remaining three appellants requires a post decision change in evidence because the need to do so was not apparent until the decision had been made, a circumstance not appertaining to the date of decision as required by s85(5)(b). In the appeal before the Tribunal, the funds in existence at the date of decision are allocated to all applicants. If there is insufficient money to finance all applicants at the date of decision, that remains the case post decision because there can be no reallocation.
26. It was not submitted to us that had the ECO taken his decisions sequentially then three of the appellants would have succeeded because there would have been adequate funds available. However that submission, if it had been made, is in any event flawed: it is not possible to state in what order the ECO would have approached the applications and decision making and thus it cannot be said that the two appellants who have withdrawn their appeals would have been the two appellants whom the ECO would have found there were inadequate funds available; they could have been the subject of decisions 2 & 3 and not decisions 4 & 5. Furthermore on reaching decision 3, the ECO would have been aware that there was only adequate finance available for one more applicant. At that stage, unless the applicants had themselves indicated that they wished the applications considered in a particular order there would be no rational basis on which to choose to allow one of the remaining three over the other two. To choose one outwith any rational basis would render the ECO open to sustainable accusations of irrationality. This would particularly be the case where there are minor children given that the specific application was for the family to travel together to join the sponsor in the UK. If the order is not indicated then each applicant would have to be treated as the last one given the finite funds available and the knowledge that there were a number of applications for the same group of dependants.
27. The ECO was not asked to make a decision on the money available for five in fact being available for three. There has been no decision made on the basis upon which the appellant sought to argue and there is no appeal before us on that.
28. Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms was not raised either before the First-tier Tribunal or before us.
The decision of the First-tier Tribunal does contain an error of law such that the decision is set aside to be remade.
The appeals are dismissed under the Immigration Rules save for Appeal no. OA/01869/2011 – Mahmedhuzaifa Ilyas Patel and Appeal no. OA/01876/2011 – Hanzlah Ilyas Patel which were withdrawn..
No Anonymity Direction is made.

Signed Date: 5th June 2013
N A Baird
Deputy Judge of the Upper Tribunal