Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: oA/02649/2015
oa/02650/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 June 2016
On 10 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

SIDRA ZUBAIR
NASEEM SAIQA
(NO ANONYMITY ORDER MADE)
Appellants
and

ENTRY CLEARANCE OFFICER - ISLAMABAD
Respondent

Representation:
For the Appellants: Mr Raw of Counsel
For the Respondent: Mr Walker a Home Office Presenting Officer

DECISION AND REASONS
Background
1. The Respondent refused the Appellants' applications for leave to enter as the child under the age of 18 and dependent spouse respectively of a British citizen. The applications were found to have been made on 3 September 2014 and were refused on 31 December 2014. Their appeals were dismissed by First-tier Tribunal Judge Ford ("the Judge") following a hearing on 16 October 2015.
The grant of permission
2. First-tier Tribunal Judge Shimmin granted permission to appeal (25 April 2016) to both parties stating that it is arguable that the Judge;
(a) erroneously found that the Appellants were required to provide 7 months payslips from the Sponsor,
(b) wrongly concluded that the relevant date was the date of application, and
(c) erred in allowing the first Appellant's appeal as that was contingent on the second Appellant's appeal as the first Appellant's father does not have limited leave to remain.
The Judge's determination
3. The Judge stated;
"6. I am considering the circumstances appertaining as at the date of application save where a date is specified under the Immigration Rules or under legislation.
12. I am ? satisfied that the first Appellant was still under the age of 18 at the date of application and consequently the decision to refuse her application was not made in accordance with the Immigration Rules.
18. ... The second Appellant should have provided six months' wage slips for the period prior to date of application, in other words wage slips from and including March 2014 to September 2014. A March wage slip was never provided. I am not satisfied that this case falls within the Flexibility Rules such that the Respondent was obliged to call for the missing wage slip and even if the Respondent had done so, I am not satisfied that that wage slip was omitted by mistake or oversight. The Sponsor told me in evidence that he had not included the March wage because he had mislaid it. It was not available to him and could not therefore have been included with the application. The provision of a September wage slip does not remedy the situation because as I found, the date of application was not 26th September but 3rd September.
21. I have seen no English-language certificates for tests taken by the second Appellant that would meet the requirements of the Immigration Rules, particularly E-ECP.4 relating to English language requirements as at date of application. The English language test certificate I have seen postdate application. The specified evidence rules make it clear that the relevant date is the date of application. As the second Appellant had not even sat her English language tests to which the certificates relate by the date of application, they cannot be relied on to meet the requirements of the Rules."

Respondent's position
4. Mr Walker relied on the Rule 24 notice (17 May 2016) which stated that the Judge was entitled to find that the 6 wage slip requirement had not been met and the evidential flexibility policy instruction is not designed for this situation as the March wage slip was never produced.
Appellants' position
5. Mr Raw submitted that in relation to the first Appellant, the Immigration Rules should be amended so that [297 (i) (c)] should read (my underlining re the proposed amendment) "one parent is present and settled in the United Kingdom and the other is applying to be admitted on the same occasion for settlement."
6. In relation to the second Appellant, the Sponsor had produced payslips covering only 5 months of the relevant period but even though he had not submitted it for March should have been afforded the opportunity of doing so through the evidential flexibility policy as it was an on line application. The Appellants were told to bring papers to the interview on 27 September 2014 and did so. The missing payslip was not important as he had the salary. The key is whether he was financially viable. The English-language certificate was provided to the Respondent before the date of decision. The relevant date for consideration of the evidence was the date of the decision and not the date of application. They were entitled to submit fresh evidence prior to the substantive consideration of the application. The failure to consider exercising evidential flexibility was a material error of law.
Discussion
7. In relation to the first Appellant and the submission that I can rewrite [297] of the Immigration Rules I set out here the relevant Immigration Rule.
'297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:
(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances: ?
(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement ?'
8. I reject Mr Raw's submission. I have no power to rewrite the Immigration Rules. They are clear, unambiguous, and specific and the first Appellant simply does not meet the Rule as her mother was not being admitted for settlement.
9. In relation to Mr Walker's submission regarding her father's status I set out below the relevant part of Appendix FM (my emphasis applied).
'E-ECC.1.6. One of the applicant's parents must be in the UK with limited leave to enter or remain, or be applying, or have applied, for entry clearance, as a partner or a parent under this Appendix (referred to in this section as the "applicant's parent"), and ...
(b) the applicant's parent's partner under Appendix FM is also a parent of the applicant ?
Section D-ECC: Decision on application for entry clearance as a child D-ECC.1.1. If the applicant meets the requirements for entry clearance as a child they will be granted entry clearance of a duration which will expire at the same time as the leave granted to the applicant's parent ...'
10. I agree with the submission by Mr Walker that any potential grant of leave to enter for the first Appellant is dependent upon the second Appellant being granted entry clearance because the length of the grant is to be identical.
11. I am therefore satisfied that the Judge made a material error of law in allowing the first Appellant's appeal. I therefore set aside the decision.
12. In relation to the second Appellant I set out below the relevant paragraphs from the rules regarding the production of documentary evidence and the evidential flexibility policy to be found within Appendix FM-SE of the Immigration Rules (my emphasis applied).
'D (a) In deciding an application in relation to which this Appendix states that specified documents must be provided, the Entry Clearance Officer or Secretary of State ("the decision-maker") will consider documents that have been submitted with the application, and will only consider documents submitted after the application where sub-paragraph (b) or (e) applies.
(b) If the applicant:
(i) Has submitted:
(aa) A sequence of documents and some of the documents in the sequence have been omitted (e.g. if one bank statement from a series is missing) ?
(ii) Has not submitted a specified document, the decision-maker may contact the applicant or his representative ?, and request the document(s) ...
(c) The decision-maker will not request documents where he or she does not anticipate that addressing the error or omission referred to in sub-paragraph (b) will lead to a grant because the application will be refused for other reasons.
(d) n/a
(e) Where the decision-maker is satisfied that there is a valid reason why a specified document cannot be supplied ? he or she may exercise discretion not to apply the requirement for the document ? to ? be submitted.'
13. It is correct to say that pursuant to DR (ECO: Post decision evidence) Morocco [2005] UKIAT 00038, the Judge has to consider the application as at the date of decision and is able to take post refusal evidence into account if it was a circumstance appertaining at the date of decision and casts light on the validity of the original information.
14. It is clear that the payslips submitted prior to the application on 3 September 2014 did not cover a 6 month period. That is because the payslips were dated 30 April 2014, 30 May 2014, 30 June 2014, 31 July 2014, and 29 August 2014. That is only 5 payslips. The submission of a later payslip for September 2014 does not remedy the defect within the application process as that would not have been dated until the end of September 2014. The application that was submitted could not therefore have succeeded and asking for a March 2014 payslip would have generated nothing because the sponsor had lost it. In this regard I bear in mind Gu v SSHD [2014] EWHC 1634 (Admin) which points out [24] that something could not be 'missing' from a sequence until the sequence itself existed, which meant that at least the start and end of the sequence had to be in evidence. This case is not akin to Mandalia v SSHD [2015] UKSC 59 as it was not a gap in bank statements but a period of pay slips that was too short, or SSHD v Rodrigues [2014] EWCA Civ 2 as the substantive consideration can only be based on the documents submitted with the application as is made clear by the Immigration Rules.
15. It is equally clear that at the date of application the second Appellant had not taken, let alone passed, an English language test. The certificate that was subsequently issued could not therefore have been available at the date of application. The application could not therefore have succeeded.
16. I therefore am not satisfied that the Judge made a material error of law in relation to the second Appellant and I do not set the decision aside.
17. Both representatives agreed that, if I found a material error of law in relation to the first Appellant, it would not be appropriate to remit the matter or adjourn the hearing to a further date as no further evidence was required.
Rehearing
18. I am satisfied that on the facts as found the second Appellant was refused entry clearance. Therefore, the first Appellant did not fulfil the pre-requisites for her own grant of entry clearance.
19. Accordingly, I dismiss the first Appellant's appeal.
Decision:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law in relation to the first Appellant.
I set aside the decision in relation to the first Appellant.
I dismiss the first Appellant's substantive appeal.
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law in relation to the second Appellant.
I do not set aside the decision in relation to the second Appellant.

Signed:
Deputy Upper Tribunal Judge Saffer
10 June 2016