(Immigration and Asylum Chamber) Appeal Number: OA/08781/2015
THE IMMIGRATION ACTS
Heard at : Field House
Decision & Reasons Promulgated
On : 17 November 2017
On: 20 November 2017
UPPER TRIBUNAL JUDGE KEBEDE
eric george bell
ENTRY CLEARANCE OFFICER
For the Appellant: Mr M Adophy, instructed by Rana & Co Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant, a citizen of Jamaica born on 27 April 1973, applied for entry clearance to the United Kingdom as a partner under Appendix FM of the immigration rules. He has been given permission to appeal against the decision of the First-tier Tribunal dismissing his appeal against the respondent's decision to refuse his application.
2. The appellant initially sought to enter the UK in November 2001 but was refused entry, granted temporary admission for a day and absconded. He subsequently sought leave to remain outside the immigration rules but was refused and was removed from the UK on 4 November 2004. He applied for entry clearance in April 2005 on the basis of his marriage, but that application was refused on 23 June 2005 as the respondent was not satisfied that he would be maintained and accommodated without recourse to public funds and was not satisfied that his relationship with his wife was genuine and subsisting and that they intended to live together permanently. The appellant sought unsuccessfully to appeal that decision in July 2006. He then applied for entry clearance as a visitor, but was refused in July 2007.
3. The appellant applied for entry clearance again as a visitor but that application was also refused, on 11 February 2008, on the grounds that it was not accepted that he was genuinely seeking entry as a visitor, it was not accepted that he would be adequately maintained and accommodated in the UK without recourse to public funds and it was not accepted that he was able to meet the costs of his return journey. His application was refused under paragraph 41 of HC 395 as well as under paragraph 320(11) on the grounds that he had failed to observe the time limit or conditions attached to a previous grant of leave to enter. The appellant appealed against that decision but his appeal was dismissed on 5 August 2008, although the Tribunal found that paragraph 320(11) did not apply as he had not previously been granted leave to enter or remain and therefore could not have failed to observe any time limit or condition attached to such leave.
4. On 28 January 2015 the appellant applied again for entry clearance, to settle with his wife. His application was considered under paragraph EC-P.1.1 of Appendix FM and paragraph 320(11) of the immigration rules and was refused on 20 April 2015. In refusing the application the respondent noted the appellant's immigration history and the fact that he had admitted in an interview previously to working illegally in the UK. The respondent noted that it was mentioned by the ECO in the previous visit visa refusal, which was upheld on appeal, that the appellant had lied to the immigration authorities when seeking leave to remain outside the rules in order to stay in the UK. The ECO also referred to the Immigration Judge having found that the appellant exercised deception in the past with regard to immigration matters and that his wife was aware of his attempts to deceive. The respondent was not, in the circumstances, prepared to exercise discretion and refused the application under paragraph 320(11) of HC 395. The application was accordingly refused on suitability grounds, under EC-P.1.1(c) with reference to S-EC2.5(b). The respondent also referred to the ECO not being satisfied, in a previous refusal of entry clearance, that the appellant's relationship with his wife was genuine and subsisting and that they intended living together permanently. The respondent noted that no further evidence had been produced showing contact between the appellant and his wife and children and no evidence had been produced to show that they had visited him. The respondent was therefore not satisfied that the appellant's relationship was genuine and subsisting and that he and his wife intended living together permanently and refused the application under EC-P.1.1(d) with reference to E-ECP.2.6 and 2.10. Finally the respondent was not satisfied that the appellant met the financial requirements of the immigration rules and refused the application under EC-P.1.1(d) with reference to E-ECP.3.1. The respondent was satisfied that the decision did not breach the appellant's Article 8 human rights.
5. The appellant's appeal was heard before First-tier Tribunal Judge Lawrence on 9 December 2016. The appellant's wife and her daughter attended the hearing and gave evidence before the judge. The judge found that the provisions of paragraph 320(11) did apply and were engaged and he found that the appellant could not meet the suitability requirements of Appendix FM of the immigration rules. With regard to whether the appellant's marriage was genuine and subsisting the judge noted that his wife had visited him several times and had given birth to three children to him, in 2005, 2007 and 2011. As to the financial requirements of the rules the judge noted that the relevant savings were in an account in the joint names of the appellant's wife and her daughter and that her daughter gave evidence that she was free to use the money for any purpose. The judge considered that unless and until the funds were in the sponsor's sole name he could not find that she was at liberty to use them for her own benefit. The judge noted the sponsor's evidence that she was now working and she produced payslips but he considered that that was a new matter which he was unable to take into account. The judge found that the appellant had been unable to demonstrate any compelling circumstances outside the immigration rules. There were no insurmountable obstacles to family life continuing in Jamaica. He dismissed the appeal under the immigration rules as well as on wider Article 8 grounds.
6. Permission to appeal to the Upper Tribunal was sought by the appellant on the following grounds: that there was procedural irregularity and unfairness in the judge's decision on paragraph 320(11) given that the respondent had indicated that the refusal on that basis was unsustainable, and that had impacted on the judge's findings on suitability; that the judge had failed to make any finding as to whether the appellant's marriage was genuine and subsisting; that it was not open to the judge to find that the funds had to be held in the sponsor's own name when her daughter had given evidence that they were available to her; that the judge had failed to consider Article 8 outside the rules; and that the judge had failed to make any proper assessment of the best interests of the children.
7. Permission to appeal was granted on 8 September 2017 on all grounds.
8. At the hearing I heard submissions from both parties on the error of law.
9. I indicated to Mr Melvin that I was particularly concerned with the judge's findings at . It appears that there was a concession by the respondent that paragraph 320(11) could not apply in the circumstances, yet the judge went on to find that paragraph 320(11) did apply without giving any indication of his intention not to follow the respondent's concession and thus without giving the appellant any opportunity to respond. Furthermore, that issue then led the judge to make the findings that he did on the suitability requirements under Appendix FM. It seemed to me that that was a matter of procedural unfairness.
10. Mr Melvin agreed with that, but he asked me to find that the appellant could not have succeeded in any event as he could not meet the financial requirements of the immigration rules and could not have succeeded in demonstrating compelling circumstances justifying a grant of leave outside the rules on wider Article 8 grounds. Mr Adophy submitted that the appellant could succeed under the immigration rules as there was evidence that he could meet the financial requirements on the basis of the savings which the sponsor's daughter had agreed could be used by the sponsor. He also submitted that there were compelling circumstances on wider Article 8 grounds outside the rules and that the judge had failed to consider the best interests of the children.
11. In light of the procedural unfairness arising from the judge's decision on paragraph 320(11), which in turn infected his findings on suitability under Appendix FM, I set aside his decision in that respect. Both parties were satisfied for the decision to be re-made on the evidence before me without a further hearing. I have therefore proceeded to re-make the decision and I do so on the basis of the respondent's concession that paragraph 320(11) did not apply and, furthermore, that the suitability provisions in S-EC2.5(b) do not apply to the appellant.
Consideration and Findings
12. Although the judge did not make a clear finding at , it seems to me that he accepted that there was a genuine and subsisting relationship between the appellant and the sponsor. The respondent's Rule 24 response at  accepted that that was his finding. On the basis of the evidence of the sponsor's visits to Jamaica and the birth certificates of the couple's three children I accept that there is a genuine and subsisting relationship.
13. However I am in agreement with Mr Melvin that the appellant could not meet the financial requirements of the immigration rules in paragraph E-ECP.3.1 and E-ECP.3.2. Irrespective of the oral evidence of the sponsor's daughter, that the funds in the joint account were available for the sponsor to use as she pleased, the fact is that the requirements of the immigration rules at Appendix FM-SE relating to specified evidence, as referred to in the refusal decision, could not be met. Not only were the funds not in the sponsor's own name, as required in Appendix FM-SE A1 1(iii), but the bank statement produced did not show that the funds had been held for six months prior to the application, as required under Appendix FM-SE A1 11(c).
14. Turning to Article 8 outside the immigration rules I am also in agreement with Mr Melvin that the appellant has failed to demonstrate compelling circumstances justifying a grant of entry clearance. The appellant is a person who cannot meet the requirements of the immigration rules, who previously absconded when on temporary admission in the UK and who then lied to the immigration authorities when seeking leave to remain outside the immigration rules. His marriage to the sponsor took place at a time when he was in the UK unlawfully. There are therefore weighty public interest considerations militating against him in assessing proportionality, albeit it is, of course, relevant to note that that was several years prior to the current application and decision.
15. In favour of the appellant, the evidence available is extremely limited. It includes evidence of the sponsor's annual visits to Jamaica since his departure in November 2004, a few photographs of the family together and letters from the children. The children, aged 9, 7 and 3 at the time of the respondent's decision, have never lived with the appellant and were all born after he left the UK. Whilst I accept that the best interests of the children may well be for them to live together with both their parents, and that their best interests are a primary consideration, they are not the sole and determinative factor. The evidence of the appellant's relationship with his children is extremely limited, consisting only of their letters and a few photographs. As Judge Lawrence said at , whilst the children are British citizens, there is no evidence to show that it would be unreasonable for them to move to Jamaica with their mother if the family wanted to be together, although of course that is a matter of choice for the family. The children are young enough to adapt to life in Jamaica and there is no evidence before me to show that they could not do so or that their ties to the UK were such that it would be unreasonable to expect them to do so. Alternatively the sponsor and the children could remain in the UK and continue to visit the appellant in Jamaica as previously, so maintaining the status quo. The appellant's step-daughter is now an adult and her family life ties to him are more tenuous. She can choose to join the appellant in Jamaica with her family or she can remain in the UK.
16. A final and relevant consideration in assessing proportionality is that it is open to the appellant to make a fresh application showing that he is now able to meet the requirements of the immigration rules, supported by proper evidence of his wife's access to savings held in her bank account, or proper evidence of third party support, or evidence of his wife's ability to support him through her income from employment.
17. For all of these reasons I do not accept that the appellant has demonstrated compelling circumstances justifying a grant of entry clearance outside the immigration rules. I find that the respondent's decision was entirely proportionate and did not breach the appellant's right under Article 8.
18. The making of the decision by the First-tier Tribunal involved the making of an error on a point of law. I set aside the decision and re-make it by dismissing the appellant's appeal on all grounds.
Upper Tribunal Judge Kebede Dated: 17 November 2017