Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/03444/2015,
OA/03435/2015 & OA/03427/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 March 2017
On 30 March 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

The ENTRY CLEARANCE OFFICER Beijing
Appellant
and

Hui Lin
Xiuying Xiao
Jinlan Lin
[No anonymity direction made]
Claimants

Representation:
For the claimants: Mr E Raw, instructed by Lisa’s Law Solicitors
For the appellant: MS J Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The claimants, with respective dates of birth of 11.10.74, 28.12.96 and 24.2.04, are citizens of China.
2. The Entry Clearance Officer appeals against the decision of First-tier Tribunal Judge Flynn promulgated 21.6.16, allowing the claimants’ linked appeals against the decisions of the Secretary of State, dated 19.1.15, to refuse their applications made on 2.12.14 for entry clearance as a partner (first claimant) and children (second and third claimants) to settled in the UK with their British citizen spouse/father, pursuant to Appendix FM of the Immigration Rules.
3. The Judge heard the appeal on 2.6.16.
4. First-tier Tribunal Judge Ford granted permission to appeal on 3.2.17.
5. Thus the matter came before me on 23.3.17 as an appeal in the Upper Tribunal.
Error of Law
6. For the reasons summarised below, I found such error of law in the making of the decision of the First-tier Tribunal as to require the decision of Judge Flynn to be set aside and remade.
7. The applications were refused because the Entry Clearance Officer was not satisfied that the relationship with the sponsor is genuine and subsisting.
8. They were additionally refused on financial grounds. Under Appendix FM the sponsor had to show a gross income of £24,800 per annum. He claimed an income of £26,000. The evidence adduced of this income failed to meet the specified evidence requirements of section 1(n) of Appendix FM-SE, which provides that gross cash income can only be counted where the bank statements corresponds to the deposit of the net figure shown in the wage slips, otherwise only the net figure may be counted. The bank statements showed an income equating only to £17,400.
9. The refusal decision was reviewed by the Entry Clearance Manager on 8.4.15, who noted that no new evidence had been adduced and that the grounds failed to address the issues raised in the refusal decisions.
10. Judge Flynn was satisfied on the evidence that the relationship was genuine and subsisting, despite the period of separation and absence of any visit by him to China since 2013.
11. In relation to the financial threshold requirements, Judge Flynn addressed Appendix FM-SE from [29] of the appeal decision onwards. However, the judge failed to deal with the requirements of section 1(n), despite noting at [28] and [31] the Entry Clearance Officer’s explanation that the gross cash salary payments could not be taken into account because the full amount had not been banked. The shortfall referred to in the refusal decision is set out at [32].
12. Judge Flynn found that the wage slips show the sponsor’s earnings are paid in cash, that the bank statements show regular cash deposits, and went on to accept the sponsor’s claim that he kept some of his earnings until he had a large sum to deposit. However, the judge acceded to the submission that amounts sent to the claimants by the sponsor should also be taken into account, a figure totalling £4,963, sent in cash and not from the bank account, and that this adequately covers the shortfall so that it was concluded that the claimants met the Rules, allowing the appeals.
13. The Entry Clearance Officer sought permission to appeal. In granting permission Judge Ford found it arguable that the First-tier Tribunal may have erred in taking into account cash remittances sent by the sponsor to his family in calculation of his income, even though those monies were not first deposited into his bank account in accordance with FM-SE requirements. It was noted that the judge made no reference to 1(n) of Appendix FM-SE relating to cash payments to employees. “Nor does Judge Flynn make it clear that the decision is being allowed on the basis of Article 8 proportionality even if the requirements of the Rules are not met. There is an arguable error of law.”
14. There was no cross appeal by the claimants in relation to the appeal not being allowed outside the Rules under article 8 ECHR.
15. I find that Judge Flynn neglected to apply section 1(n) of Appendix FM-SE, which is to the effect that the gross salary may only be counted where the bank statements show the net amount relating to the gross amount shown on the payslips. Otherwise only the net amount shown on the bank statement may be counted. There is no provision in the Rules entitling cash remittances to be taken into account; there is no basis in Appendix FM-SE for including in the minimum income threshold calculation cash income which is not paid into a bank account. It is plain from the Rules that any cash income must comply with 1(n). The judge is not entitled to dispense with the express prohibition set out the relevant Rules.
16. It follows that the claimants have not met the requirements of the Rules and that the decision of the First-tier Tribunal is flawed for error of law.
17. It is the claimants’ case that the sponsor has the necessary income. The difficulty which they were unable to overcome is that the Rules require such cash income to be evidenced in a specified way with specified documentary evidence. This they failed to do.
18. Ms Raw sought to rely on the recently promulgated decision of the Supreme Court in R (on the application of MM (Lebanon)) (Appellant) v Secretary of State for the Home Department (Respondent) – UKSC 2015/0011. Together with other cases heard together on appeal from the Court of Appeal, the Supreme Court considered whether the introduction into the Immigration Rules of a Minimum Income Requirement (MIR) for a UK citizen or resident wishing to bring a non-EEA spouse or partner into the UK is in breach of article 8 ECHR, unlawfully discriminatory and/or irrational.
19. As explained in that decision, under previous Immigration Rules, such a couple applying for permission for the non-EEA partner to reside in the UK had to demonstrate that they could maintain themselves adequately without recourse to public funds. From 9 July 2012 new MIR were introduced whereby the UK partner must have a gross annual income of at least £18,600 (for a couple). The appellants in that case challenged the lawfulness of the MIR.
20. In summary, the Supreme Court unanimously (i) allowed SS’s appeal, restoring the decision of the Upper Tribunal in her case, and (ii) allowed the other four appeals to a limited extent. In doing so, the court held that the MIR is acceptable in principle but that the Rules and the Instructions unlawfully fail to take proper account of the s55 duty in respect of the welfare of children. The Instructions also require amendment to allow consideration of alternative sources of funding when evaluating a claim under article 8.
21. Ms Raw referred me to [76] of MM, where it was stated that “not everything in the rules need be treated as high policy or peculiarly within the province of the Secretary of State, nor as necessarily entitled to the same weight…Rules as to the quality of evidence necessary to satisfy that test in a particular case are, as the committee acknowledged, matters of practicality rather than principle and as such matters on which the Tribunal may more readily draw on its own experience and expertise.”
22. However, the Supreme Court upheld the principle of a MIR and accepted that the MIR is a part of an overall strategy aimed at reducing net migration, with legitimate aims to prevent recourse to public funds, which aims are sufficient to justify interference with the article 8 right to respect for family life. The central challenge to the validity of the MIR failed and a MIR is in principle acceptable and a matter properly taken into account in the balancing process. The court found that the reasons for adopting a strict approach to evidencing sources of income were matters of practicality, reflecting the relative uncertainty and difficulty of verification of such sources. “In our view, it was not irrational in the common law sense for the Secretary of State to give priority in the rules to simplicity of operation and ease of verification,” [98]. The Supreme Court went on to hold that it was necessary in the guidance to officers making decisions on applications that where the the circumstances give rise to a positive article 8 duty, a broader approach may be required in drawing the “fair balance,” required by the Strasbourg court, as demonstrated in the Jeunesse case. “They are entitled to take account of the Secretary of State’s policy objectives, but in judging whether they are met, they are not precluded from taking account of other reliable sources of earnings or finance. It is open to the Secretary of State to indicate criteria by which reliability of such sources may be judged, but not to exclude them altogether,” [100].
23. “We conclude therefore that, while the rules as such are not open to challenge, there are aspects of the instructions to entry clearance officers which require revision to ensure that the decisions made by them are consistent with their duties under the HRA. In the light of that conclusion, the Secretary of State might wish to consider whether it would be more efficient to revise the Rules themselves, to indicate the circumstances in which alternative sources of funding should or might be taken into account, rather than simply to revise the guidance. But that would be a matter for her.”
24. In the present case the difficulty was not that the sponsor could not meet the MIR, but that it had not been evidenced in accordance with the Rules, despite to avoid difficulties of verification. The Supreme Court acknowledged the utility, for policy and practical purposes of verification of income to demonstrate that a party will not become a burden on the state, of rules as to how income should be evidenced.
25. It follows that the claimants could not meet the Rules and thus the appeal should have been dismissed on immigration grounds. However, in the light of MM, consideration needs to be given to whether the circumstances justify granting entry clearance on article 8 grounds outside the Rules. In such an assessment, income the evidence for which does not comply with the Rules might well be taken into account in the proportionality assessment, if in fact, the sponsor’s true income is comfortably above the relevant MIR. Ms Isherwood raised some concern as to the credibility of the sponsor and his claimed income, but as the Tribunal, understandably, did not consider any article 8 claim outside the Rules, that will be a matter for the First-tier Tribunal to consider on rehearing of the appeal.
Remittal
26. When a decision of the First-tier Tribunal has been set aside, section 12(2) of the Tribunals, Courts and Enforcement Act 2007 requires either that the case is remitted to the First-tier Tribunal with directions, or it must be remade by the Upper Tribunal. The scheme of the Tribunals Court and Enforcement Act 2007 does not assign the function of primary fact finding to the Upper Tribunal. Where the facts are unclear on a crucial issue at the heart of an appeal, as they are in this case, effectively there has not been a valid determination of those issues. The errors of the First-tier Tribunal vitiate all other findings of fact and the conclusions from those facts so that there has not been a valid determination of the issues in the appeal.
27. In all the circumstances, I relist this appeal for a fresh hearing in the First-tier Tribunal, I do so on the basis that this is a case which falls squarely within the Senior President’s Practice Statement at paragraph 7.2.
Conclusions:
28. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law such that the decision should be set aside.
I set aside the decision.
I remit the appeal to be decided afresh in the First-tier Tribunal in accordance with the attached directions.

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Consequential Directions
29. The appeal is remitted to the First-tier Tribunal sitting at Taylor House;
30. The appeal is to be decided afresh with no findings of fact preserved;
Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order pursuant to rule 13(1) of the Tribunal Procedure Rules 2014.
Given the circumstances, I make no anonymity order.
Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: The outcome of the appeals remains to be decided.

Signed

Deputy Upper Tribunal Judge Pickup

Dated