Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/06863/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 29 May 2013
On 7 June 2013

Before
UPPER TRIBUNAL JUDGE JORDAN

Between

Syed Murshed Miah
Appellant
and

The Entry Clearance Officer, Dhaka
Respondent

Representation:
For the Appellant: Mrs D. Ofei-Kwatia, Counsel, instructed by M-R Solicitors
For the Respondent: Mr D. Hayes, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Bangladesh who was born on 15 March 1980. He appeals against the determination of First-tier Tribunal Judge Mark-Bell promulgated on 14 March 2013 in which he dismissed the appellant's appeal against the decision of the Entry Clearance Officer in Dhaka made on 28 February 2012 refusing his application for leave to enter the United Kingdom to join his sponsor, a British citizen to whom he is married, and their two British children.

2. The couple were married on 21 January 2009 when his wife, born 30 July 1990, was 19 years of age. She was, however, a British citizen and returned to the United Kingdom on 15 August 2009 by which time she was pregnant with the couple's first child. Syed Ishmaq Ahmed was born on 9 December 2009 and is now 2 ½ years old. His brother, Syed Yasmin Ahmed was born on 4 July 2011 and is now 23 months old.

3. The appellant's wife lives in rented accommodation consisting of two bedrooms, living-room, kitchen and bathroom. Initially, the decision of the Entry Clearance Officer was to refuse the application on the basis that the appellant failed to establish that the requirements of paragraph 281(iv) were met, namely, that

‘there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively’.

On review by the Entry Clearance Manager, the respondent properly withdrew its challenge to this part of the application. The appeal proceeded solely on the basis that the appellant had failed to establish the requirements of paragraph 281(v) namely,

‘the parties will be able to maintain themselves and any dependants adequately without recourse to public funds’.

4. At the hearing before the Judge, the appellant's wife, Mrs Begum, provided bank statements showing funds introduced into her account as cash payments. However, in the case of those that purportedly referred to cash deposits derived from her work at "Perfect Fried Chicken" (sometimes misspelt), the entry upon her bank statement variously stated: ‘Ref: PFC’ or Ref: ‘Perfect Fried Chicken’ or a misspelt variation of it. In paragraph 23 of his determination, the Judge said:

“Her explanation was that she had written on the paying-in slips the employers' names. I do not find this credible. My understanding is that the purpose of a paying-in slip together with the deposits of cash is to record who paid it in, not the ostensible origin of it. Writing on someone else's name proves nothing. The depositor could write anybody's name on. So in the absence of evidence to the contrary I am not prepared to accept that this happened. Further, I am not prepared to accept that the bank would both accept a paying-in slip containing someone else's name to that of the depositor and that the bank would reproduce such a name on a bank statement thus lending it a credibility that it may not deserve. I therefore have real doubts about the reliability of the photocopied bank statement containing such details ...”

5. Mrs Ofei-Kwatia submitted that it was the universal practice of many banks to permit a customer to identify for their own benefit the source of funds paid into the account in cash so that, in future, the account holder would be reminded of the source of the relevant funds. Whilst this is a practice of which I was personally unaware, Mrs Ofei-Kwatia told me that, from personal experience, she knows this to be the case. I am bound to say I have no reason to doubt this practice and it makes good sense. If a person, for example, sells a motorcar for cash and deposits the money into his bank account, there is every reason for him to identify the source of those funds for future reference in case he forgets the source of a substantial deposit. For these reasons, I am not satisfied that the Judge was entitled, on balance of probabilities, to reach the conclusion that these entries had been falsified and, accordingly, that no weight could be attached to that part of the evidence directed towards establishing that the sponsor derived an income from PFC. The Judge was not entitled to conclude that there was only a discreditable explanation for the entries in the bank statements when there was an alternative explanation which did not carry with it the stigma of falsity. Indeed, I prefer the benign explanation (which has much to commend it) to that adopted by the First-tier Tribunal Judge. His approach amounts to an error of law whose determination was clearly much influenced by his conclusion that false documents had been submitted. (The spelling mistakes are not those of the Bank, but those of Mrs Begum who introduced inaccuracies into the paying-in slips.)

6. I am fortified in this view in having another source of information about the work performed by the sponsor with PFC. In the course of hearing, I permitted Mr Hayes an opportunity to consider original documents dating from the period of the decision in February 2012 from HMRC establishing that the sponsor was employed by PFC at the relevant time and that, broadly speaking, the level of income was that described by the sponsor.

7. I am therefore permitted to re-make the decision.

8. The appellant's sponsor holds down two jobs. One, (which is not disputed), with the company called Spice Empire established, in round terms, a net weekly income, from payslips, of £152.99 a week or £663 per month. The income from PFC established a weekly income of £173.68 a week or £753 a month. Taken together, these two sources provide a total income of £1,415 a month. In addition, the appellant receives child benefit at the rate of £135 a month, increasing the available resources to £1,550 a month.

9. Mrs Ofie-Kwatia extracted figures indicating that the level of Income Support that would be notionally available to the sponsor and his wife was £459 a month and, for the children, £548 a month. When rent of £375 a month is added to the notional benefits that would be provided, a total of £1,374 a month would be provided, substantially less than the level of resources calculated in the preceding paragraph of £1,550 a month.

10. Mr Hayes, whilst unable to verify the amounts to the pound, accepted that Mrs Ofie-Kwatia's calculations were broadly correct.

11. I am therefore satisfied that the appellant meets the requirements for entry clearance under paragraph 281 as the spouse of a British citizen seeking settlement in the United Kingdom to join his wife.

12. Although the grant of permission to appeal focuses upon the inadequate handling of the Article 8 claim, it is apparent from paragraph 4 of the grant that all the issues raised in the grounds of appeal were arguable. Consequently, it was open to the appellant's representative to pursue the appeal on the basis of an erroneous approach by the Judge in relation to his treatment of the maintenance requirements.

13. Since I have allowed the appeal under the Immigration Rules, it is unnecessary for me to deal separately with Article 8. However, had the appellant failed to meet the requirements for entry clearance under the Immigration Rules, I would undoubtedly have found that there was family life between the appellant, his sponsor and his children but that it was proportionate to refuse entry clearance. In an out-of-country appeal, I see no reason to depart from the balance struck in the Rules themselves to the effect that there is a significant public interest in preventing a spouse who is not a British citizen from entering the United Kingdom if the effect of entry is to impose a burden upon the British taxpayer which he would not otherwise have to meet. A spouse does not have the right to determine his place of settlement and the respondent is fully justified in regulating entry for economic reasons by the imposition of a requirement that there should be no additional burden upon the public purse, even in a case where British (or, indeed, Union) citizen-children will be affected by the decision.

DECISION

The Judge made an error on a point of law and I re-make the decision in the following terms:

The appeal is allowed under paragraph 281 of the Immigration Rules.

ANDREW JORDAN
JUDGE OF THE UPPER TRIBUNAL
29 May 2013