Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/09174/2014

THE IMMIGRATION ACTS

Heard at: Columbus House, Newport
Decision and Reasons Promulgated
On: 14 July 2016
On: 04 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE J F W PHILLIPS

Between

ENTRY CLEARANCE OFFICER - DHAKA
Appellant
and

SAHARUN BEGUM
(anonymity direction not made)
Respondent

Representation

For the Appellant: Mr E Tuburu, Ty Arian Solicitors
For the Respondent: Mr I Richards, Home Office Presenting Officer

DECISION AND DIRECTIONS

1. This is an appeal by the against the determination of First-tier Tribunal Judge Whitcombe in which he allowed the appeal of Saharun Begum, a citizen of Bangladesh, against the Entry Clearance Officer's decision to refuse entry clearance as the spouse of the Sponsor Milon Miah, on Article 8 ECHR grounds. For the sake of clarity, I will refer to Mrs Begum as 'the Applicant'.

2. The Applicant applied for entry clearance on 12 May 2014. Her application was refused by the Entry Clearance Officer on 29 June 2014. The Applicant exercised her right of appeal against this decision and this is the appeal that was heard before Judge Whitcombe on 7 September 2015 and dismissed by virtue of the Immigration Rules but allowed on Article 8 ECHR grounds. The Entry Clearance Officer's application for permission to appeal against the First-tier Tribunal Judge's decision was granted on 4 April 2016 by First-tier Tribunal Judge Lever in the following terms

The grounds assert that the judge erred in his consideration of A8 and did not apply guidance in SS Congo.

The judge accepted that the case failed under the Immigration Rules but allowed it under A8 ECHR on the basis that if a fresh application was made then there was a good prospect such application would be successful.

It is arguable that this is not a correct use of A8 ECHR and not in accordance with the test set out in SS Congo.

3. By a rule 24 response dated 11 May 2016 the Applicant opposed the appeal arguing that having found that the Applicant could not succeed under the Rules the Judge was right to consider whether compelling circumstances could be identified and having done so go on to consider Article 8 outside the rules.

4. At the hearing before me Mr Richards appeared for the Entry Clearance Officer and Mr Tuburu represented the Applicant and submitted a written skeleton argument which, for the most part, was a repeat of the rule 24 response.

Background

5. The Applicant is a Bangladeshi citizen born on 15 December 1989. She is married to Milon Miah a British citizen resident in the United Kingdom. The Applicant applied for entry clearance to enable her to join her husband in the United Kingdom. The application was refused because the Respondent was not satisfied that the Applicant met the relationship, financial or English language requirements of the Immigration Rules.

6. At the appeal hearing before the First-tier Tribunal the Judge found that the marriage was genuine and subsisting and that the couple intended to live together permanently as husband and wife and therefore that the relationship requirements were satisfied. The Judge found that the English language requirements were not satisfied at the date of the Respondent's decision but they were satisfied, although not taken into account, by the time of the Entry Clearance Manager's review. So far as the financial requirements were concerned the Judge found, in effect, that the Applicant came close to satisfying the income requirements but did not, even at the date of the hearing satisfy the specified evidence requirements of Appendix FM-SE.

7. Having dismissed the Immigration Rules appeal the Judge went on to consider the appeal under the provisions of Article 8 ECHR and in so doing found that it was likely that a fresh application for Entry Clearance would meet the requirements of the Rules and be successful and that in those circumstances there was a disproportionate interference in the Applicant's family life because to make a further application would entail further cost and delay.

Submissions

8. For the Entry Clearance Officer Mr Richards said that having found that if a fresh application were made it would probably have succeeded the Judge went outside his self-direction at paragraphs 10 to 12 of the decision where he correctly said that he was restricted to considering the circumstances at the date of the Entry Clearance Officer's decision. In accordance with section 85A of the NIA 2002 the Judge should have restricted himself so far as Article 8 was concerned. Mr Richards otherwise relied on the grounds of appeal adding that it was not appropriate for the Judge to describe (at paragraph 39(v)) the requirements of the rules as a technicality. The Judge fails to identify compelling circumstances to go outside the rules.

9. For the Applicant Mr Tuburu relied on the rule 24 response and skeleton argument. He said that the judge considered the matter and reached appropriate findings revealing no error of law. This was a correct use of Article 8 following SS Congo. When the Judge found that the rules were not met he had to go on to consider Article 8. There were compelling reasons because of the length of time it had taken to get to the appeal stage.

10. I said that it was my judgment that the decision contained a material error of law. The application did not meet the requirements of the Immigration Rules and the Judge went on to consider Article 8 without finding compelling reasons to do so. The matter was clearly remediable by the Applicant through making a fresh entry clearance application that would in any event have been quicker than the appeal process. The decision could not stand. The Entry Clearance Officer's appeal would be allowed, the decision of the First-tier tribunal would be set aside and a fresh decision made dismissing the Applicant's appeal on all gorunds. I reserved my written decision.

Error of law

11. The Applicant applied for Entry Clearance as the spouse of the Sponsor. It is common ground that her application did not meet the requirements of the Immigration Rules. The decision of the First-tier Tribunal shows that whereas the Entry Clearance Officer was wrong to decide that the relationship requirements of the rules were not met he was right not to be satisfied that the English language and maintenance requirements were fulfilled.

12. Having made the finding that the application fid not meet the requirements of the Immigration Rules the Judge went on at paragraph 36 of his decision to consider Article 8 ECHR. He did not identify any compelling reason for doing so. As such the judge failed to have regard to the Court of Appeal decision in SS Congo [2015] EWCA Civ 387. This is a material misdirection.

13. To the extent that it may be argued that 'compelling reasons' although not mentioned in terms, were implicit in the findings of the First-tier Tribunal Judge, such a finding would in my judgment be irrational. Put simply the Applicant did not meet the evidential requirements of the Immigration Rules. As was made clear in SS Congo the requirement to meet the evidence rules ensures that those applying for entry clearance are dealt with equally and fairly. The Judge was wrong to find that the evidence rules were, in this instance, a mere technicality.

14. The errors of law detailed above were material to the decision to allow the appeal. The decision of the First-tier Tribunal must be and is set aside.

15. In remaking the decision, I take into account the First-tier Tribunal findings concerning the subsistence of the marriage. This is a genuine relationship and the Applicant intends to live permanently with the Sponsor. I also take account of the finding that whereas the Applicant did not meet the requirements of the Immigration Rules at the time of the decision or indeed at the time of the hearing before the First-tier Tribunal she is likely to meet those requirements if a fresh application is made. In my judgment and particularly having regard to these circumstances there are no compelling reason to consider Article 8 outside the Immigration Rules. The situation is clearly remediable for the Applicant through the making of a fresh entry clearance application. This is the swiftest way in which the family life of the Applicant and Sponsor can be continued and, had it been necessary to consider the question of proportionality, a proportionate response to any interference there may have been in their family life caused by the Entry Clearance Officer's correct decision.

Conclusion

16. The decision of the First-tier Tribunal involved the making of an error of law for the reasons set out above.

17. I allow the Entry Clearance Officer's appeal and set aside the decision of the First-tier Tribunal.

18. I remake the decision by dismissing the Applicant's appeal against the Entry Clearance officer's decision both by virtue of the Immigration Rules and Article 8 ECHR.

Signed: Date: 04/08/2016

J F W Phillips
Deputy Judge of the Upper Tribunal