Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/06557/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 August 2016
On 27 September 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

Bibi Mina Azizi
(no anonymity order)
Appellant
and

ENTRY CLEARANCE OFFICER - ISLAMABAD
Respondent

Representation:
For the Appellant: Mr A Miah, Counsel instructed by Immigration Law Services
For the Respondent: Mr K Norton, Home Office Presenting Officer

DECISION AND REASONS
(1) I see no need for, and do not make, any order restricting publication of the details of this appeal.
(2) This is an appeal by a citizen of Afghanistan against a decision of the First-tier Tribunal dismissing her appeal against a decision of the Entry Clearance Officer at Islamabad refusing her entry clearance as the wife of a Mr Noorali Azizi. The Entry Clearance Officer was not satisfied about several aspects of the application and refused it. There was a measure of success before the First-tier Tribunal because it was accepted that the appellant is in a genuine and subsisting relationship with her purported husband but the evidence was not sufficient to satisfy the financial requirements of the Rules.
(3) The First-tier Tribunal Judge at paragraph 12 of his decision decided unequivocally that the sponsor does not engage in genuine employment. This finding was based on a difficulty the Judge thought was apparent from looking at the payslips and was to do with the consistent sums paid by way of National Insurance.
(4) There are two things wrong with that finding. Firstly, it was not raised with the parties at all, so the appellant had no notice that this was going through the Judge's mind until the decision arrived. This is the wrong approach. Secondly it is not at all clear to me that the judge in fact was entitled to reach the decision at all for the reasons given. It is a very dangerous to transfer experience that you think you have learnt from one case into another and really the judge should not have done it. That finding is not sustainable. I am assisted in reaching this conclusion by Mr Norton for the Secretary of State, who admitted that the decision would not do. I therefore set aside the decision.
(5) It follows that there is a finding that there is a subsisting marriage and nothing else.
(6) I have to ask myself what to do with the appeal now. Although there is a mass of evidence before me in a somewhat shambolic form about the income of the sponsor there has been no attempt to go through the requirements of the Rules and show the necessary documentation about self-assessment and registration and income and so on.
(7) Mr Miah had to accept, when pressed, that although I cannot conclude responsibly that the appellant cannot be maintained and that her husband cannot earn enough money, it has not been proved that he does. I therefore have to dismiss the appeal in front of me, making it plain that the finding of dishonesty at paragraph 12 of the Decision is set aside.
(8) I must also make it clear that it is not a finding that the sponsor has been honest. That is something that can be looked at again if there is a further application but the existing finding just will not do and is set aside.
(9) It follows therefore that although I set aside the existing decision I remake it and dismiss the appeal for the reasons given.
Notice of Decision
(10) Although the First-tier Tribunal did err in law and I set aside its decision I substitute a fresh decision dismissing the appeal.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 26 September 2016