Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA054112015
and OA054142015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 15 June 2016
On 16 June 2016

Before

Deputy Upper Tribunal Judge MANUELL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

(1) MADHIA [J]
(2) [M A]
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:

For the Appellant: Mr R Ahmed, Counsel
(instructed by Berkshire Law Chamber)
For the Respondent: Mr K Norton, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction

1. The Appellant (the Secretary of State) appealed with permission granted by me on 10 May 2016 against the determination of First-tier Tribunal Judge Powell who had allowed on Article 8 ECHR grounds only the Respondents' linked appeals seeking settlement under Appendix FM of the Immigration Rules as the spouse and son of British Citizen. The decision and reasons was promulgated on 1 December 2015. The appeals were determined on the papers as had been requested.

2. The Respondents are nationals of Pakistan, mother and son. There was no dispute about their relationship to their sponsor. The issue was whether or not the specified evidence required to show that the financial requirements had been provided with the entry clearance application. The judge declined to look at the Immigration Rules but went on to find that the sponsor had shown he had sufficient income and allowed the appeals under Article 8 ECHR.

3. Permission to appeal was granted because I considered that it was arguable that the judge appeared to have misunderstood the scope of the appeals and had arguably failed to apply relevant law such as SS (Congo) [2015] EWCA Civ 387. His proportionality assessment was arguably insufficient.

4. Standard directions were made by the tribunal. A rule 24 notice in generic terms was filed on behalf of the Respondents

Submissions

5. Mr Norton for the Appellant relied on the grounds of onwards appeal and grant. In summary he argued that the judge had erred by looking beyond the issue of compliance with Appendix FM-SE. The proportionality assessment, such as it was, had not been open to the judge.

6. Mr Ahmed for the Respondents agreed that SS (Congo) [2015] EWCA Civ 387 applied. There had been a positive finding as to the sponsor's income. Counsel submitted that the Article 8 ECHR assessment had been correctly performed. Mr Ahmed sought permission to cross appeal out of time as to the adequacy of the judge's findings, as the Respondents had contended in a witness statement placed before the judge that in fact Appendix FM-SE had been complied with, yet this had not been dealt with in the decision and reasons.

7. Although I was satisfied that the issue of compliance had also been raised by the Respondents in a witness statement, I refused permission to cross appeal out of time. It was far too late to raise such an obvious point. Theatre was no satisfactory explanation for the delay by the Respondents. It was also far from certain that the point would succeed.

8. Mr Norton wished to add nothing further by way of reply.

No material error of law finding

9. The decision was unsatisfactory for the reasons identified by me when granting permission to appeal. Uncharacteristically, the judge's decision is not easy to follow. It must be remembered that the Respondents had elected for a decision on the papers, which often makes a judge's tasks more difficult.

10. It seems from [14] of the decision that the judge found that Appendix FM of the Immigration Rules had not been met, since he would not otherwise have had any reason to consider Article 8 ECHR. This could have been set out with somewhat greater clarity. But before proceeding to Article 8 ECHR, the judge ought to have reminded himself expressly of SS (Congo) [2015] EWCA Civ 387, and asked whether there was any compelling circumstances which he had identified showing why he needed to do so. Had he asked that question, he would surely have had to answer it in the negative, since all that the Respondents had to do was to submit fresh and compliant entry clearance applications. It was proportionate to expect that from them. As Lord Carnwath stated at [57] of Patel [2013] UKSC 72: "It is important to remember that article 8 is not a general dispensing power." It is of obvious importance that the tribunal ensures that documents placed before it by appellants have been verified by the Secretary of State, which is one of the reasons why it was necessary for the specified evidence provisions set out in Appendix FM-SE to be introduced.

11. The judge identified no reasons why it was not reasonable for the Respondents to be required to meet the specified evidence requirements, as with all other applicants. Nor did the judge identify any relevant evidential flexibility issues which are catered for within Appendix FM-SE. The judge was not entitled on the facts found to go on to consider Article 8 ECHR (save in the alternative), let alone to allow the appeals on the basis he did. His decision is not sustainable. The Secretary of State's appeal is allowed.

DECISION

The making of the previous decision did involve the making of a material error on a point of law. The decision is set aside. The following decision is substituted for it:

The original appeals are dismissed

Signed Dated 16th June 2016

Deputy Upper Tribunal Judge Manuell

TO THE RESPONDENT:
FEE AWARD

The appeals have been dismissed and so there can be no fee award

Signed Dated 16th June 2016

Deputy Upper Tribunal Judge Manuell