Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/05813/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision Promulgated
On 27 March 2017
On 05 April 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
EVELYN KORTEI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: the sponsor Mr Tetteh
For the Respondent: Mrs Petterson

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Appellant was born on 6 November 1957 and is a national of Ghana.
3. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
4. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Simpson promulgated on 17 June 2016 which refused the Appellant’s appeal against the decision of the Respondent dated 22 January 2015 to refuse an application for entry clearance as a partner under Appendix FM of the Immigration Rules. The refusal had been on the basis that the Appellants income did not at the time of the application meet the threshold set out in the Rules.
The Judge’s Decision
5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Simpson (“the Judge”) dismissed the appeal against the Respondent’s decision.
6. The Judge found :
(a) She found that the relevant date for the purpose of the appeal was the date of decision but that for Appendix FM-SE it is the date of application.
(b) At the date of the application the Sponsor was not earning £18,600 as he only started work after the date of application.
(c) She also found that he did not provide the necessary evidence in compliance with Appendix FM SE.
(d) In relation to Article 8 she found that the parties could enjoy family life in Ghana or they could make a fresh application with the appropriate documentation to show that the Sponsor now earns £18.600 or more.
(e) Refusal of entry clearance was in the circumstances proportionate.
7. Grounds of appeal were lodged by the Sponsor in essence arguing that the Article 8 assessment was flawed and that she erred in relation to her calculation of the Appellants total income.
8. On 20 December 2016 First-tier Tribunal Judge Grimmett gave permission to appeal stating that it was arguable that the Judge should have considered the Sponsors income at the date of hearing as the appeal was on human rights grounds.
9. At the hearing I heard submissions from Mr Tetteh on behalf of the Appellant :
(a) He relied on the grounds of appeal.
(b) The appeal should be allowed on compassionate grounds as he found it hard to be separated from the Appellant.
(c) He was now earning in excess of £30,00.
10. On behalf of the Respondent Ms Petterson submitted that :
(a) She relied on the Rule 24 notice.
(b) The immigration Rules required specified evidence to show that the Sponsors income met the threshold requirements.
(c) The Appellant could have made a further application with up to date documentation: there was no error in the Judges decision and there was a simple remedy available.
Finding on Material Error
11. Having heard those submissions I reached the conclusion that the Tribunal made no errors of law that were material to the outcome in this case.
12. It is beyond doubt and Mr Tetteh and the Appellant both accepted that at the time of the application for entry clearance, 24 November 2014, the Sponsor did not meet the income requirement of £18,600 income from specified sources of income.
13. In her Article 8 assessment the Judge at paragraph 7 of the decision does not explicitly state that she is not assessing the evidence at the date of hearing but quite properly identifies that the Appellant and Sponsor had still not provided the documentation that would have been required under the Rules to evidence that claimed income whether or not it was in excess of £18,600. I note from the file that for example while wage slips were produced the only bank statements in the file date back to 2014 and there was no evidence before the Judge to show that the income from the employment was reflected in the bank statements. It was therefore open to the Judge to find that Article 8 was not to be ‘used to circumvent compliance with the Immigration Rules’.
14. Therefore given her finding about the absence of all the relevant documentary evidence that would have been required under Appendix FM SE to establish the income claimed it was open to her to find that for the purpose of Article 8 it was reasonable and proportionate to require the parties to make a fresh application.
15. I find that the reasons given were adequate and the Appellant cannot be in any doubt about why the appeal was dismissed: the Immigration Rules were not a route requiring less evidence to establish income thresholds were met.
CONCLUSION
16. I therefore found that no errors of law have been established and that the Judge’s determination should stand.

DECISION
17. The appeal is dismissed.

Signed Date 4.4.2017
Deputy Upper Tribunal Judge Birrell