Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/01955/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 September 2016
On 06 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

TAHIR MOAMMED DUDUB
(anonymity directioN NOT MADE)

Respondent

Representation:

For the Appellant: Mr S Kandola, Home Office Presenting Officer
For the Respondent: Miss N Brissett, Counsel, instructed by Aden & Co Solicitors

DECISION AND REASONS

1. This an appeal from the decision of First-tier Tribunal Judge Page promulgated on 22 March 2016. It concerns the refusal of the Entry Clearance Officer in Pretoria of the appellant's application for a spousal visa under paragraph E-ECP.3.3 of Appendix FM of the Immigration Rules.

2. There are particular personal circumstances in this case which were outlined by the Judge in the determination and were summarised by Judge Pullig when giving permission to appeal in unusually robust terms.

3. Put shortly, it is accepted that the appellant's sponsor would have sufficiently demonstrated the financial requirements under Appendix FM were the figures for independent payment allowance included by way of income. The point made by the Secretary of State is that that sum should not be included because even though it is a qualifying benefit, paragraph E-ECP.3.3 states:

"the applicant's partner must be receiving one of more of the following:
[...] (vi) personal independence payment" (emphasis added)

4. Mr Kandola who represents the Secretary of State argues with that the statutory provision is to be read strictly such that the sponsor must have actually been receiving payments at the material time. The absence of de facto receipt (irrespective of de jure entitlement as determined by a subsequent appeal) means that the sponsor fell short of the required financial minimum figure and accordingly did not qualify under paragraph FM.

5. Miss Brissett who acts for Mr Dudub argues that where, as here, an award of benefit is backdated and particularly where the reason for backdating arises from a failure of a government department to award the proper figure at the beginning, then in reality (even if strictly not within the language of the provision) the individual can properly be regarded as "receiving" the benefit.

6. The Judge dealt with this in paragraph 11 as follows where she sets out the case argued on the appellant's behalf by Miss Bissett (who also acted in the First-tier):

"Moreover, she said, the appellant had applied for personal independence payment (PIP), the benefit which has replaced disability living allowance but had been refused. At the time of the decision under appeal, 2 December 2104, she had an outstanding appeal to the First-tier Tribunal [Social Entitlement Chamber] against the respondent's decision to refuse her personal independence payment. On 10 June 2015 this appeal had been allowed. The Tribunal in allowing the appeal said

'Mrs Hussein is entitled to the daily living component at the enhanced rate from 14 October 2013 to 13 October 2018. Mrs Hussein has severely limited ability to carry out activities of daily living.'

It followed that at the time of the respondent's decision the appellant had this severe disability and was entitled to the benefit which replaced DLA. Therefore she was exempt at the date of the decision and there was adequate evidence of this before the ECO because further enquiry could have been made."

7. It is implicit from paragraphs 25 and 26 of the decision that the Judge accepted these arguments and resolved the appeal in the appellant's favour.

8. The Secretary of State needs to demonstrate an error of law. Whilst my provisional view had been the wording of the paragraph E-ECP.3.3 of Appendix FM was plain and should be read strictly however harsh the consequences, I have been persuaded by Miss Bissett that the Judge was entitled to look at the reality of the payments actually due to the sponsor. When the payment was backdated as the outcome of a successful appeal, so is the notional entitlement.

9. The Judge made findings that the backdated benefit was due to the sponsor at the material time in consequence of the later appeal. The judge further found that in the particular circumstances of this case amounted to receipt. It may be a different judge could have come to a different conclusion. However, I do not consider there to be any error of law on the part of the Judge as the conclusion reached was open to him on the unusual facts of this particular case.

Notice of Decision

There is no material error of law in the decision of the First-tier Tribunal and this appeal is dismissed.

No anonymity direction is made.

Signed Mark Hill Date 3 October 2016

Deputy Upper Tribunal Judge Hill QC