Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/08182/2014
OA/08180/2014
OA/08187/2014
OA/08183/2014

THE IMMIGRATION ACTS

Heard in Birmingham
Determination Promulgated
On Monday 6 March 2017
On Monday 20 March 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MRS B F
MR S Q A
MISS S A B
MISS S T Z
(ANONYMITY DIRECTION MADE)
Appellants
and

ENTRY CLEARANCE OFFICER, ISLAMABAD
Respondent

Representation:
For the Appellants: Ms K Rahman, Counsel instructed by Heritage solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Although anonymity was not granted by the First-tier Tribunal, one of the Appellants remains a minor child. It is therefore appropriate that an anonymity order be made. Unless and until a tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND DIRECTIONS

Background

1. The Appellants appeal against a decision of First-Tier Tribunal Judge Hawden-Beal promulgated on 6 May 2016 (“the Decision”) dismissing their appeals against the Entry Clearance Officer’s decisions dated 16 December 2014 refusing them entry clearance as the spouse and children of the Sponsor, Mr Shah, who is a British citizen. The First Appellant is Mr Shah’s spouse. The Second, Third and Fourth Appellants are their children born on 13 June 1992, 4 September 1997 and 3 December 2002. Only two of the children are therefore still under the age of eighteen although the Third Appellant was also a minor at the date of application on 10 April 2014. That is relevant when I turn to disposal of their individual appeals.

2. The Respondent refused the applications on the basis that Mr Shah could not meet the requirements of Appendix FM-SE to the Immigration Rules (“the Rules”) to show that he had the requisite income to meet the threshold requirements in the Rules. An additional point was taken in relation to the validity of the First Appellant’s English language certificate. The Second Appellant who could not qualify for entry under Appendix FM as Mr Shah’s child due to his age was refused because he could not meet the Rules in relation to adult dependent relatives.

3. The refusal based on the evidence of income depended in part on Mr Shah’s failure to provide two payslips for part of the period during the six months prior to the application. By the date of hearing, Mr Shah had provided those payslips. The Judge accepted that the evidence showed that he could therefore meet the requirement to earn more than £24,800 which was the requisite figure for maintenance of the First, Third and Fourth Appellants. She also found that the Respondent had not proved that the First Appellant’s English language certificate was valid. However, the Judge found that she was not entitled to take into account the payslips which pre-dated the application but were not provided with it. She therefore found that the First, Third and Fourth Appellants could not succeed under the Rules. The Judge also found against the Appellants in their claim that the Respondent’s decisions breached Article 8 ECHR ([22] and [23] of the Decision). She found against the Second Appellant also on the basis that he could not meet the Rules in relation to adult dependent relatives ([19]).

4. The first to third of the Appellants’ grounds focus on the Judge’s refusal to take into account the additional payslips. The fourth ground concerns Article 8 ECHR. Permission was granted by First-tier Tribunal Judge Shimmin on both aspects of the grounds. The matter comes before me to decide whether the Decision contains a material error of law and, if so, to re-make the Decision or remit the appeals for rehearing to the First-Tier Tribunal.

Appeals of the First, Third and Fourth Appellants

5. The main issue in relation to these Appellants is the income threshold requirement as if the Judge were wrong not to take into account the payslips, then they could succeed under the Rules (subject to the English language certificate finding not being challenged by the Respondent).

6. In her Rule 24 response, the Respondent stated as follows:-

“[2]. The respondent does not oppose the appellant’s application for permission to appeal and invites the Tribunal to determine the appeal with a fresh oral (continuance) hearing. It is quite clear the evidence would have been admissible as long as it appertained to the relevant date of application pursuant to Section 85 and S85A of the 2002 Act.”

No challenge was made to the finding on the English language certificate.

7. These appeals pre-date the coming into force of the changes to appeal provisions brought about by the Immigration Act 2014. Section 85 and 85A Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) therefore read as follows (so far as relevant):-

“Section 85
…
(4) On an appeal under section 82(1)…against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.
(5) But subsection (4) is subject to the exceptions in section 85A”

“Section 85A
(1) This section sets out the exceptions mentioned in section 85(5)
(2) Exception 1 is that in relation to an appeal under section 82(1) against an immigration decision of a kind specified in section 82(2)(b) or (c) the Tribunal may consider only the circumstances appertaining at the time of the decision.”

8. The Respondent concedes (rightly) that this restriction relates only to the “circumstances” and not to the evidence of those circumstances. The Judge accordingly made an error in finding that she could not take into account the payslips which Mr Shah submitted showing his income in January 2014 and, most importantly, March 2014. The Appellants’ ground two is therefore made out. The Appellants’ ground one is also legally correct but I do not need to deal with that or ground three which relates to the Respondent’s discretion to seek out documents not provided with the application.

9. Based on the Respondent’s concession, Mr Mills agreed that, if the evidence contained in the March 2014 pay slip showed that Mr Shah was in receipt of more than £24,800 per annum, the appeals of the First, Third and Fourth Appellants should be allowed on the basis that the Respondent’s decisions were not in accordance with the Rules. The payslip dated March 2014 as well as Mr Shah’s P60 for that year show that his income for the year was £26,070.21. The application for entry clearance was made on 10 April 2014. Accordingly, I allow the appeals of the First, Third and Fourth Appellants on that basis.

Appeal of the Second Appellant

10. The position of the Second Appellant is however different because he was not a minor child at the date of the application. Accordingly, he cannot succeed under Appendix FM in the same way. There is no challenge in the Appellants’ grounds to the Judge’s finding that he could not meet the Rules relating to adult dependent relatives. His challenge to the Decision is therefore confined to ground four relating to the assessment of Article 8 ECHR.

11. I pointed out to Ms Rahman at the hearing that, read strictly, her ground four ([50] of the grounds) refers only to the First Appellant. She submitted however that it should not be read in that way. The reference to the First Appellant only relates to the Judge’s assessment at [22] of the Decision. She confirmed that all four appeals were argued on the basis that the Respondent’s decisions were disproportionate. As such, she asked me to read that ground as relating to all four Appellants (although only now relevant to the Second Appellant because the other appeals are allowed under the Rules).

12. Mr Mills did not disagree with Ms Rahman’s submission. He also conceded that the Judge’s assessment of Article 8 ECHR was necessarily infected by the error made in relation to her consideration of the Rules as the Judge assumed that none of the Appellants could satisfy the Rules whereas I have found that the majority of the family can.

13. Submissions therefore proceeded on the basis that I should re-make the Decision in relation to the Second Appellant’s appeal on human rights grounds. Ms Rahman submitted that, although the Second Appellant is now aged twenty-four, he has always formed part of the family unit and has not formed his own independent life. She submitted therefore that, since the other Appellants are to be permitted entry, his appeal should be allowed on human rights grounds. She directed my attention to evidence before the Judge as to the Second Appellant’s position as follows:-

Mr Shah’s statement ([AB/5-8] at [21] and [23])
Mr Shah’s oral evidence as set out at [9] of the Decision
The decision of First-tier Tribunal Judge Thomas promulgated on 5 August 2011 in an earlier appeal which, whilst dismissing the appeals of the Second to Fourth Appellants in these cases, found that the family has a close relationship
Mr Shah’s letter in support of the Appellants’ applications dated 19 February 2014 ([RB/56-57])

She also made submissions as to the relevant law particularly in relation to the recent Supreme Court judgment in MM (Lebanon) and others v Secretary of State for the Home Department [2017] UKSC10 ([39] to [44] of the judgment).

14. I do not deal at this stage with the substance of those submissions because in the course of our discussions about what directions if any were required for the Appellants to adduce further evidence, a dispute arose as to the relevant date for my consideration of Article 8 – whether should be at the date of the Respondent’s decision or at the date of the hearing before me.

15. Mr Mills referred me again to the terms of Section 85A of the 2002 Act and submitted that this restriction applies just as much to the consideration of human rights as to the application of the Rules. Ms Rahman indicated that she had not foreseen this dispute arising. It was not prefaced in the Rule 24 statement although, in fairness, as I have already indicated, the Appellants’ fourth ground was itself shortly stated and far from clear.

16. I therefore decided that the appropriate course was to adjourn the resumed hearing with directions for written submissions on this question. Once those are received, I will then make a further decision in writing on the papers on that issue and give directions as to further evidence (if that appears necessary) before re-making the Decision in relation to the Second Appellant.

DECISION

Appeals of First, Third and Fourth Appellants
I am satisfied that the Decision contains a material error of law in relation to these Appellants. The decision of First-tier Tribunal Judge Hawden-Beal promulgated on 6 May 2016 is set aside. I substitute a decision allowing the appeals of the First, Third and Fourth Appellants on the basis that the Respondent’s decisions are not in accordance with the Rules.

Appeal of Second Appellant: S Q A – OA/08180/2014
I am satisfied that the Decision contains a material error of law in relation to the Second Appellant’s appeal on human rights grounds. I therefore set aside the Decision so far as concerns his appeal but I preserve the findings at paragraph [19] of the Decision which are not challenged.

The resumed hearing of his appeal to re-make the Decision is adjourned with the following directions:-

(1) The Second Appellant shall file with the Tribunal and serve upon the Respondent within fourteen days from the date when this decision is sent his submissions in relation to the point in time at which his Article 8 rights fall to be considered by this Tribunal and the legal basis on which those submissions are founded. Those submissions should also set out the Second Appellant’s position as to the evidence which the Tribunal may take into account in relation to this issue and what directions are sought in relation to the re-making of the decision in his appeal.

(2) The Respondent shall file with the Tribunal and serve upon the Second Appellant within fourteen days from the date when the Second Appellant’s submissions as set out in (1) above are served, her submissions on the same issues also setting out the legal basis on which those submissions are founded and any directions sought in relation to the re-making of the decision.

(3) Thereafter, the file shall be returned to me for a decision to be made on the papers on the timing issue together with further directions as necessary for the re-making of the decision and any resumed hearing.

Signed Dated: 14 March 2017

Upper Tribunal Judge Smith