Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/03319/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 October 2016
On 05 October 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

MR HUSSEIN YUSUF SHARIF
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs Amina Ali Awad (sponsor)
For the Respondent: Ms Z Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge K Swinnerton, promulgated on 10 February 2016. Permission to appeal was granted by First-tier Tribunal Judge Mark Davies on 17 August 2016.
Anonymity
2. No direction has been made previously, and there is no reason for one now
Background
3. On 13 November 2014, the appellant sought leave to enter the United Kingdom as the partner of a British citizen, namely Amina Ali Awad, hereinafter referred to as the sponsor.
4. That application was refused on 13 January 2015 as the Entry Clearance Officer (ECO) did not accept that the appellant met the suitability, eligibility, financial or English language requirements of the Rules. The ECO considered Article 8 of the ECHR but concluded that the appellant's exclusion from the United Kingdom was proportionate.
5. The appellant's grounds of appeal argued that the Rules were met save for the English language requirement, in relation to which he claimed an exemption because there were no English language testing facilities in Somaliland. Supporting documents were enclosed.
6. The ECO's decision was reviewed by an Entry Clearance Manager (ECM) on 31 July 2015 however, the original decision was maintained in full.
The hearing before the First-tier Tribunal
7. At the hearing before the First-tier Tribunal, the sponsor gave evidence and submissions were made to the effect that the appeal should be allowed under Article 8, it appearing to be conceded that specified evidence, in the form of payslips, had not been submitted. The judge concluded that the Rules were not met and that the respondent's decision was not disproportionate.
The grounds of appeal
8. The grounds of appeal in support of the application argued firstly, that the appellant met the financial requirements, in particular, in that six months' worth of payslips were submitted with the application in relation to the sponsor's two jobs; secondly that the judge's decision lacked detail and reasoning; thirdly that the judge failed to consider the appellant's family life with the sponsor and lastly, that the judge did not consider the sponsor's ability to maintain and accommodate the appellant.
9. Permission to appeal was granted on the basis that it was "arguable that the findings and reasons made by the Judge are so brief that he did not properly consider the evidence that was before him and to have disregarded evidence."
10. The respondent's Rule 24 response, received on 2 September 2016, indicated that the appeal was opposed. The said response noted that the concession recorded by the judge at [48] of the decision appeared to be dispositive of the appeal. Mention was made of the other bases for refusal with which the grounds did not take issue. It was said to be hard to see how the judge's Article 8 decision was material in a claim which stood or fell with the claim under the Rules.

The hearing
11. The sponsor attended the hearing unrepresented and unable to communicate in English to the extent required to argue the appellant's case. The matter was put back in the list in order to enable a Somali interpreter to be arranged.
12. The sponsor maintained that she had provided payslips dating until immediately prior to the application to her previous representatives. She stated that these had not all been sent with the application but that her previous representatives had told her that they had sent them to the ECO following a request for further documents. With regard to the confirmation letter from each of her two employers, she had never been asked to provide these. Furthermore, she was often, albeit not always, paid in cash by her employer. In relation to Article 8, she had told the judge about her difficult circumstances, in that she had been widowed shortly after arriving in the United Kingdom and had raised four children alone. In addition, she had emphasised that she was keeping in contact with the appellant; was sending him money and that she was able to maintain and accommodate him in the United Kingdom. The sponsor also mentioned that she was diagnosed with a brain tumour, which was operated on earlier this year. The diagnosis post-dated the ECO's decision.
13. For her part, Ms Ahmed identified two issues. The first was the appellant's ability to meet the Immigration Rules in view of the fact that the employers' letters were never requested and therefore it was difficult to see how the judge could have found that the Rules were met. In relation to Article 8 outside the Rules, she accepted that his reasoning was very brief but contended that his findings were open to him.
Decision on error of law
14. At the end of the hearing, I announced that the judge had made a material error of law on the following basis.
15. The judge's finding that the Rules were not met, in relation to the specified evidence were ultimately correct. While the sponsor contends that she provided all the payslips required, she accepts that the employers' letters were not. Therefore, any error by the judge in dealing with the payslips was not material as the appeal could not have succeeded under the Rules in any event.
16. The judge's error relates to the human rights claim outside the Rules. His findings which amount to three paragraphs of one sentence between [49] and [51] of the decision and reasons are devoid of detail or analysis. It is unclear whether he accepts there was family life between the appellant and sponsor. This is important, given the ECO's view that the relationship was not genuine and subsisting. Furthermore, there is a lack of reference to the sponsor's circumstances as set out in her witness statement in the extremely limited proportionality assessment that there was. Those circumstances include her bereavement and struggles as a single mother of four. One of the three sentences refers to the sponsor's surgery, yet this was not a relevant issue given that at the time of the visa application, she had yet to be diagnosed with this illness.
17. There is also the matter of the extent to which the Rules were not met which is relevant to the proportionality assessment. Clearly, the judge was wrong to say that this matter was not in dispute. Regardless of counsel's apparent concession, the sponsor's evidence was that the Rules were met in large part. There is no assessment by the judge of the extent to which the Rules were met, despite the wealth of supporting evidence in relation to the sponsor's income, which if accepted was above the minimum maintenance threshold.
18. For the foregoing reasons, the decision of the First-tier Tribunal is set aside, with no findings preserved. I considered remaking the decision however, the sponsor needed to leave for work and she indicated that she had additional documents at home which were relevant to the matter.

Decision

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

The decision of the First-tier Tribunal is set aside.

The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Hatton Cross, with a time estimate of 2 hours by any judge except First-tier Tribunal Judge K Swinnerton. A Somali interpreter is required.

Signed Date: 4 October 2016

T Kamara
Judge of the Upper Tribunal