Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: oa/05912/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 November 2016
On 18 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

MRS NURA HASSAN NUR
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

ENTRY CLEARANCE OFFICER - PRETORIA
Respondent

Representation:
For the Appellant: Mr R Chopra, Solicitor instructed by Cohesion Legal Services Centre
For the Respondent: Mr C Avery, Home Office Presenting Officer

DECISION AND REASONS
Background
1. The appellant in this case, Mrs Nura Hassan Nur is a citizen of Somalia born on 29 January 1983. She applied for entry clearance to settle as the partner of Mr Maxamed Dahir under Appendix FM of the Immigration Rules. That application was refused by an Entry Clearance Officer in Pretoria on 25 February 2015 and upheld in the Entry Clearance Manager review of 22 August 2015. The appellant appealed that decision. In a decision and reasons promulgated on 18 April 2016 Judge of the First-tier Tribunal Pickup dismissed the appellant's appeal on immigration and human rights grounds.
2. The appellant appealed with permission on the grounds that:
(1) It is arguable that the judge erred in finding that there was no unlawful failure by the Secretary of State to exercise discretion to request original copies of the bank statements and wage slips;
(2) That it was arguable that the judge made a material error of fact in respect of the wage slips not covering a period of a minimum of six months.
3. Permission to appeal was not granted on the remaining grounds and these were not pursued by Mr Chopra at the appeal before me and therefore I do not consider them any further.
Error of law consideration
4. Judge of the First-tier Tribunal Pickup at [16] of his decision and reasons properly considered that there is discretion under paragraph D of Appendix FM-SE of the Immigration Rules for the Secretary of State to consider evidence submitted after the application and to seek further evidence from an applicant where a document has been submitted in the wrong format such as a copy rather than an original. However the judge concluded that the provisions also explain that they will not seek such further evidence if it appears that the application will be refused for other reasons and the judge went on to find: "as it was in this case". In the circumstances the judge did not find that there was an unlawful failure to exercise a discretion on the part of the Secretary of State.
5. Paragraph D of Appendix FM-SE reads as follows:
"D(a) In deciding an application in relation to which this Appendix states the 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 subparagraphs (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 the series is missing);
(bb) a document in the wrong format (for example, if a letter is not on letterhead paper as specified); or
(cc) a document that is a copy and not an original document; or
(dd) a document which does not contain all of the specified information; or
(ii) has not submitted a specified document,
The decision-maker may contact the applicant or his representative in writing or otherwise and request the document(s) or the correct version(s). The material requested must be received....at the address specified in the request within a reasonable timescale specified in the request.
(c) The decision-maker will not request documents where he or she does not anticipate that addressing the error of omission referred to in sub-paragraph (b) will lead to a grant because the application will be refused for other reasons.
.....".
6. Although the judge was clearly correct in his summary of the relevant paragraph, including that the decision-maker will not request such documents if he or she does not anticipate that addressing the error or omission will lead to a grant because the application will be refused for other reasons, the only other reason that the application was refused (other than the issue of the original documents) was on the basis that the appellant had failed to demonstrate that she had the relevant English language qualification. However, at paragraphs [8] to [12] of his decision the judge Pickup found that the respondent had adduced insufficient evidence for the judge to discount or discredit the submitted English language test certificate and therefore found for the appellant on this ground.
7. Given that the judge had found that the respondent had been incorrect in the refusal of the appellant's application under paragraph E-ECP.4.2 in relation to paragraph EC-P.1.1(d) of Appendix FM of the Immigration Rules (E-ECP.4.1) I am satisfied therefore that in these circumstances the decision-maker was in error in not considering whether to exercise the discretion to request further documents.
8. I am satisfied that the respondent did unlawfully fail to exercise that discretion in the circumstances where the refusal by the ECO under the English language requirement has been found to be incorrect. In these circumstances I am satisfied that there is a material error of law.
9. In relation to the remaining ground that the judge considered, at paragraph [17] following the submissions of the Presenting Officer that there was not a full six month bundle of wage slips, I accept the submissions of the appellant's representative that this was a material error of fact as the bundle before me clearly shows a full six months from 3 May 2014 to 28 November 2014 was provided. Mr Avery viewed this information and did not specifically dispute this.
Conclusion
10. I am satisfied that the decision of the First-tier Tribunal Judge contains an error of law such that the decision should be set aside. I substitute my decision remaking the decision and allowing the appellant's appeal to the extent that it is remitted to the respondent to make a lawful exercise of the discretion that is open to the respondent under Appendix FM-SE.
No anonymity direction was sought or is necessary in this case.

Signed Date

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD
No fee application was received and no fee award is therefore made.

Signed Date

Deputy Upper Tribunal Judge Hutchinson