Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/08556/2015
OA/08557/2015
OA/08558/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26th January 2017
On 20th March 2017

Before

UPPER TRIBUNAL JUDGE REEDS

Between

TAWHIDA AKTER PANNA (FIRST appellant)
MOHAMMED ABUL FoYEJ (SECOND appellant)
MOHAMMED ABUL MERAJ (THIRD appellant)
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

ENTRY CLEARANCE OFFICER – NEW DELHI
Respondent

Representation:
For the Appellants: Mr T Chowdhury, Solicitor Advocate from Kingdom Solicitors
For the Respondent: Mr E Tufan, Senior Presenting Officer

DECISION AND REASONS
1. The Appellants, with permission, appeal the decision of the First-tier Tribunal (Judge Beg) who, in a determination promulgated on 24th August 2016, dismissed their appeals against the decision of the Entry Clearance Officer made on 30th April 2015 refusing them entry clearance to the United Kingdom for settlement under Appendix FM of the Immigration Rules. The first Appellant is the mother of the second and third Appellants.
2. The decision of the First-tier Tribunal Judge sets out the nature of the application. The Appellants applied for entry clearance relying on her husband’s employment. Accompanying the application were a number of documents including over six months’ pay slips, bank statements and letters from employers.
3. On 30th April 2015 the Entry Clearance Officer refused them entry clearance for settlement under Appendix FM. The judge recited the reasons in the determination at paragraph [1]. The application was refused because the applicants were said not to meet the income threshold requirement under Appendix FM and the related evidential requirements under Appendix FM-SE. It went on to state that the sum required under the Rules was £24,800 and then went on to state:-
“You have declared your Sponsor as a PAYE employee in salaried or non-salaried employment. You have stated in the Visa Application Form that the Sponsor has been employed with TOP since 23rd June 2014 and the PPC. However I note that you have provided letters from the PPC and the TOP they do not state how long your spouse has worked there, as such you have failed to meet the requirements of the specified documents”.
4. The refusal letter went on to refer to employers reporting PAYE information to the HMRC which was referred to as “Real Time Information”. For the HMRC earnings 2012/2013 the income was £5,853 and for the same employer but for the period 2013/2014 it was £5,852 and for the second source of employment which was TOP it showed taxable pay £6,080 with tax payable to date £6,080 and the second source of employment of £14,017 from the PPC company for the earnings for 2014 and 2015. The decision letter went on to state as a result of the checks, the Entry Clearance Officer was not satisfied that the Sponsor’s employment was as claimed. It went on to say that there was a shortfall of £19,522 which had not been held in an account for the last six months continuously. Thus the application was refused.
5. The Appellants sent to the Entry Clearance Officer a number of documents as set out in the covering letter including further information from the employers (which was said to be missing from the original letters), copy P60s in relation to both sources of employment, pay slips and bank statements (see page 7). The letters from the employers were dated 25th May 2015, both of which set out the missing information as to when he had begun his employment. However it is right to observe that in the refusal letter the Respondent made reference to the applicant’s starting dates in relation to both sources of employment because it was reflected in the HMRC employment history which had been sought by the Entry Clearance Officer. Therefore whilst it originally had not been put in the employer’s letter the Entry Clearance Officer had confirmation of those start dates because the information was already before the Entry Clearance Officer at the time the decision was made. In any event, the information was also provided to the Entry Clearance Officer for the purposes of a review. It was supported also by a letter from HMRC setting out the circumstances for the tax year of 2014 and 2015 referring to both sources of employment showing for the first one £6,560 and for the second £15,025 (see pages 17 and 18 of the Respondent’s bundle taken from the P60 information).
6. During the hearing I asked Mr Tufan if he could explain to me about the Entry Clearance Manager’s review which was undertaken. He was not able to give any further details. Looking at the decision before the First-tier Tribunal there was no Presenting Officer available. The Entry Clearance Manager’s review does not have a date upon it but it refers to documents and the date of appeal as 23rd July 2015 and therefore the Entry Clearance Manager’s review must have been after the documents were provided by the Appellants which I have set out earlier which included the letters from the employers containing the information requested and confirmation from HMRC as to the amounts from the P60. However the ECM review refers to the Appellants seeking entry clearance as “family visitors” and noting that they have not met all the requirements as to paragraph 41. In the body of the ECM review it makes reference to the refusal letter having “advised the Appellants to submit any additional evidence they may have in order that the concerns could be properly addressed by this office”. It is plain from reading the Entry Clearance Manager’s review that the basis upon which the review took place made no reference either to the documents provided by the Appellants or addressed the issues. There is one further document on the front sheet of the Respondent’s bundle, it is a document for the ECM to complete and it simply states “upheld”. It ticks the box for the ECM review but as noted in the preceding paragraph it does not appear that any such review was undertaken by those documents.
7. The documents before the judge, and had been before the Entry Clearance Manager for the purposes of review, dealt with the two issues identified by the Entry Clearance Officer and the refusal which related firstly to the missing information from the employer’s letter which, as I have said, was in fact already before the Entry Clearance Manager from additional information from the HMRC but also for the purposes of review. The second point related to the HMRC documentation and the view that the Entry Clearance Officer did not accept that he was employed as claimed but there was additional information from the HMRC supporting the information provided. Thus the First-tier Tribunal Judge had that material before the Tribunal and was entitled to consider it, it having already been before the Entry Clearance Officer who had not considered it.
8. The judge set out at paragraphs [2] onwards the Grounds of Appeal that had been provided by reference to all of the documents that had been provided to the Entry Clearance Manager for the review.
9. At paragraph [3] the judge set out the evidence of the Sponsor and at paragraph [4] recorded the submission made by Mr Chowdhury that the issue was one of “finance under the Rules”. He made submissions relating to the documents and that the Appellant had met the threshold which was the required sum of £24,800.
10. It is plain from reading the determination at paragraphs [5] to [7] that the judge, having considered all of the documentation including the decision and the documents provided for the ECM review, found that the only issue for consideration was whether the Sponsor met the financial requirements under the Rules (see paragraph [5]). Thus it appears that whilst the refusal letter had made reference to the missing evidence required as a specified document relating to the employers and the length of time with each employer, the judge was satisfied that that had been provided for the purposes of a review. As I have set out, that information was before the Entry Clearance Officer in the HMRC documents in any event.
11. Thus the issue was whether or not the Sponsor met the financial requirements. The judge found that it was common ground that the Sponsor had a wife and two children and therefore the financial threshold was £24,800 per annum. The judge set out the two P60s in the bundle relating to year ending 5th April 2015 showing for the first source of employment PPC at £5,025.38 and for the second employment for £6,560 showing that the combined earnings to 5th April was £21,585.38. At paragraph [6] the judge stated the date of decision was 30th April 2015 and that for the remaining three weeks of April 2015 leading up to the date of decision, the Sponsor “clearly earned additional amounts from both of his employments”. The judge set out the additional amounts and found that if those were added up in the sum of three weeks of additional earnings for the first source of employment at the PPC that the Sponsor would have earned £1,008 and with the second source of employment would have earned £480 and therefore as a total found that the income was £23,073.38 which was therefore below the threshold required.
12. At paragraph [7] the judge recorded Mr Chowdhury’s submission in the skeleton argument but found that he had calculated the Sponsor’s earnings beyond the date of decision. The judge recorded the P60 for 5th April 2016 for both sources of employment which when added together gave a total of £25,792 (which would have satisfied the financial threshold). However the judge went on to find that the cut-off date under the Rules “must be the date of decision which is 30th April 2015”. Thus the judge did not find that the Sponsor earned £25,792 as submitted by Mr Chowdhury. Therefore he did not meet the financial threshold. The judge made reference to the increase in his earnings following the date of decision and that he could make a fresh application.
13. The Appellants sought permission to appeal that decision based on the judge’s assessment of the financial requirements which appeared to be the only issue between the parties and permission was granted by the First-tier Tribunal (Judge Colyer) in a decision of 29th December 2016.
14. At the hearing before me Mr Chowdhury provided a skeleton argument and further documents relied upon which included a statement from the Sponsor, employment letters and the relevant pay slips and P60s and bank statements. That material had already been provided before the First-tier Tribunal although the witness statement from the Sponsor was simply an updating statement. I asked Mr Chowdhury if he would provide a further document setting out a table of the appropriate figures which he did. That was provided to Mr Tufan who had the opportunity to consider it. In his submissions Mr Chowdhury submitted that the date of the application was 1st February 2015 and that the cut-off date was not the date of decision as set out by the judge. He made reference to the pay slips at pages 12 to 24 and at pages 25 onwards showing that the employment relied upon by the Appellant from both sources was supported by the documents showing £336 gross for the first source and £160 gross for the second and that when multiplied to give a period of six months gave a figure of £12,896. He referred to the letters from the employers at pages 9 to 11, all of which had been before the Entry Clearance Officer for the review and, as I have stated, was before the Entry Clearance Officer before the decision because they were set out in the HMRC information. Those documents supported the gross pay per week for each source of employment. He confirmed that the bank statements had been provided to the Entry Clearance Officer but the decision did not raise any issues about the bank statements provided and that the only two issues identified related to the missing information from the employer’s letter, which I have already found was before the Entry Clearance Officer and certainly was before the Entry Clearance Officer for the purposes of the review and the information from HMRC which was clarified in a further letter of May 2015 supporting the figures already given in the P60 documents which were also sent.
15. Mr Chowdhury relied upon the schedule that he produced which showed for the six month period required that he had met the threshold under the Rules.
16. Mr Tufan on behalf of the Respondent, having been provided with the schedule, stated that he did not dispute the figures that had been given. He accepted that the judge was wrong on the calculations when looking at the Sponsor’s earnings but submitted that the Appellants could not satisfy the Rules by not providing specified documents. This was also set out in the Rule 24 response.
17. Mr Chowdhury by way of reply submitted that there were only two issues outlined in the decision letter, both of which had been satisfied and no other issues had been raised by the ECO.
18. I have considered the submissions of the parties and I find that the judge did err in the calculations made when addressing the issue as to whether or not the Appellants met the threshold for the financial requirements. There is no issue between the parties about the figures and Mr Tufan accepted that the judge had been wrong on the calculation when looking at the earnings. He did not dispute the figures. It seems to me that whichever way the figures are considered that the threshold requirement of £24,800 was exceeded by reference to the documentation provided. Looking at what the Appellant earned at the date of the application, which was February 2015, the two sources of income when taken from their gross figures (£336 for first employment and £160 for second employment) gave a total of £496 per week gross. The Appellant was required to show from the pay slips for the preceding six months before the application made in February 2015 the gross sum of his employment. Six months prior to February would have been August 2014. As set out in the employers’ letters, the Appellant was earning £336 at the date of August 2014 to the date of the application and beyond, and for the second source of income he had begun that employment on 23rd June 2014 (not 2015 as stated by the judge) and thus between that relevant six month period where the pay slips were requested the Appellant’s income was £496 per week gross. That was accepted by the judge in the findings of fact that were made. The Appellants were required to show that the Sponsor was still earning six months before the application was made and that is the period between August 2014 and February 2015. If a calculation is taken from that figure of £496 to demonstrate a period of twelve months to see whether or not the threshold was exceeded, that would give a figure of £25,792 which demonstrates that that does in fact meet the threshold. Whilst the P60 for 2016 was not a document that would demonstrate compliance as at the date of the application (or the decision if that be the right date), it is a relevant cross-check when considering the calculation because the financial circumstances of the Sponsor were unchanged. The P60s for 2016 both show a total figure as set out in the judge’s determination at paragraph [7] of £25,792. Therefore whilst that by itself could not demonstrate that he met the threshold, it provides a useful cross-check given that his circumstances had not changed.
19. The P60 for the period of 2015 for each source of employment only averaged out the employment and did not accurately reflect a full year’s employment as submitted by Mr Chowdhury. Therefore reliance upon that itself would not accurately demonstrate being able to meet the threshold. Therefore having looked at the calculations and the acceptance that the figure in which it was calculated was wrong, the Appellants did demonstrate that they exceeded the threshold of £24,800.
20. Whilst Mr Tufan submitted that the Appellants had not provided specified evidence, he did not articulate what specified evidence that was. Nor did the Rule 24 response. The decision letter made reference to two matters, firstly the missing information from the employer’s letter which was, I find, in fact before the Entry Clearance Officer in the HMRC documents upon which reliance was placed, but also provided for the purposes of the review. Therefore that information was before the Entry Clearance Officer and did therefore comply with the information required. The second part of the refusal related to the HMRC document which led to the overall conclusion that the Entry Clearance Officer was not satisfied that he was employed as claimed. There was no reference beyond that to any further refusal relating to specified evidence. The Appellant provided by way of HMRC further information concerning his employment, supported by the P60 information I have referred to, and the pay slips in conjunction with the letters from the employers, all of which appear to be consistent. The Entry Clearance Officer may consider P60 documents in accordance with the Rules under paragraph 2A(i). It cannot be ascertained what the ECM found on review because, as I have set out, the review that took place made reference to paragraph 41 of the family visitor Rules which had no relevance to this application. Thus the only issue before the judge was that of whether the Appellant could demonstrate he met the threshold income. It has not been demonstrated by any evidence before me that the judge was wrong to consider that that was the only issue in light of the matters that I have just set out, and as it is accepted that the calculations were wrong and he had shown that he could exceed the threshold, I find that the judge did err in that calculation and the Appellants have met the Rules.

Notice of Decision
21. The First-tier Tribunal’s decision is set aside, the decision is re-made ; the appeals are therefore allowed.

There has been no application made for any anonymity direction.

Signed Date: 15/3/2017

Upper Tribunal Judge Reeds