Tribunal decisions

The decision

IAC-AH-DN-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/09295/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 11th October 2016
On 09th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Mr obaid maqsood
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Timpson, Counsel
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Pakistan born on 9th May 1986. The Appellant had applied for entry clearance as a partner under Appendix FM of the Immigration Rules. That application was refused by the Entry Clearance Officer on 14th April 2015 specifically on the basis that the Appellant had not provided the specific evidence for the specified period as stated within Appendix FM-SE of the Immigration Rules and that the Entry Clearance Officer was not satisfied that the Appellant met the financial requirement. Consequently the Appellant's application was refused under paragraph EC-P.1.1(d) of Appendix FM.
2. The Appellant appealed and the appeal came before First-tier Tribunal Judge Ennals sitting at Manchester on 8th April 2016. In a decision and reasons promulgated on 13th April 2016 the Appellant's appeal was refused both under the Immigration Rules and under the European Convention on Human Rights.
3. On 13th April 2016 Grounds of Appeal were lodged to the Upper Tribunal. On 12th September 2016 First-tier Tribunal Judge Kelly granted permission to appeal. He noted that it was arguable for the reasons set out in the Grounds of Appeal that the Tribunal had erred in its conclusion:
(a) that Appendix FM-SE required the letter from the Sponsor's employer to predate the application by no more than 28 days; and
(b) that the statutory restrictions upon the admission of post-application evidence applicable in PBS cases (Section 85 NIAA 2002) also extends to documents considered under Appendix FM-SE; and
(c) that the evidential flexibility provisions of paragraph (d) of Appendix FM-SE did not apply to the facts of this appeal.
4. On 29th September 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. Those grounds contended that the Respondent's position at the hearing was that there was no question of whether evidential flexibility was required because there was evidence that the letter submitted with the application was prepared for an anticipated application in October 2014. At the date of application, no letter meeting the requirements existed, so it was contended that the application would still have fallen for refusal as the Appellant was unable to satisfy the Immigration Rules. Further it was contended that the Entry Clearance Officer was not required to exercise discretion and that in any case had he done so the result would have been the same.
5. It is on that basis that the appeal comes before me firstly to determine whether or not there is a material error of law and secondly if there is to give due consideration with regard to the remaking of the decision. The Appellant appears by his instructed Counsel Mr Timpson. The Secretary of State appears by her Home Office Presenting Officer Mr Harrison.
Submission/Discussion
6. Both legal representatives acknowledge that the issue in question is a narrow one. Mr Timpson starts by pointing out that it was accepted by the First-tier Tribunal Judge (at paragraph 12) that the Sponsor's income had gone in to her bank. And, as set out at paragraph 14 of Judge Ennals' decision, providing the requirement for documentation as set out in paragraph 1(1) of the relevant Immigration Rule is met then the appeal hearing must succeed. Mr Harrison concedes that the financial requirements are met.
The Relevant Rule
7. The relevant Rule is to be found within Appendix FM-SE under the section evidence of financial requirements under Appendix FM. Diluting the extensive paragraph to the relevant paragraphs it reads:
"In relation to evidencing the financial requirements in Appendix FM the following general provisions must apply...
(l) where this Appendix requires the applicant to provide specified evidence related to a period which ends with the date of application, that evidence, or the most recently dated part of it, must be dated no earlier than 28 days before the date of application."
Submission/Discussion on the Interpretation of the Statutory Provision
8. Mr Timpson contends that that paragraph refers to the provision of bank statements and the reference to the word "period" also makes reference to the provision of bank statements. He emphasises that the employment letter does not relate to any specific period.
9. Mr Harrison in response takes me to Appendix FM-SE paragraph 2(b) of the Immigration Rules. That states:
"2. In respect of salaried employment in the UK ..., all of the following evidence must be provided ...
(b) a letter from the employer(s) who issued the (payslips) at paragraph 2(a) confirming:-
(i) the person's employment and gross annual salary;
(ii) the length of their employment;
(iii) the period over which they have been or were paid the level of salary relied upon in the application; and
(iv) the type of employment (permanent, fixed-term contract or agency)."
10. Mr Timpson points out that there is no specific period stated as to when that letter must be produced. Mr Harrison contends that the letter needs to be relied upon in the application and therefore the letter must not predate the financial evidence. Mr Timpson strongly opposes that view pointing out that the letter is not a document covering a period, that it is a document testifying to the facts set out 2(b)(i-iv), and consequently it would be possible to have information from a bank that covers these matters without disclosing it for a specific period and on a specific date. He emphasises it is the bank statements and payslips that are required to be covered within the 28 day Rule and there is no need for the letter to cover that specific period.

Discussion/Submissions on Evidential Flexibility
11. The legal representatives agree that discussion on this point is a fall back provision and that if I find in favour of Mr Timpson's arguments with regard to the letter and the timing of it then this matter becomes otiose. It is the brief submission of Mr Timpson that the Entry Clearance Officer has not exercised evidential flexibility and consequently the decision is not in accordance with the law. Mr Harrison briefly responds by reiterating the point made in the Rule 24 response that at the hearing there was no question of whether evidential flexibility was required because there was evidence the letter had been submitted when the application was prepared for the anticipated application in October 2014.
The Law
12. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
13. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings
14. The fact of this case turns on whether or not it was a requirement for the employer's letter to be dated no earlier than 28 days before the date of application. That was the finding that the judge made at paragraph 14 of his decision and that was why he dismissed the appeal. I consider that decision to be wrong in law. As a starting point paragraph A1(l) headed evidence of financial requirement under Appendix FM needs careful analysis. I agree with the contention made by Mr Timpson that this section refers to evidence of bank statements and not to a letter from employers. Further it states clearly that evidence "must be dated no earlier than 28 days before the date of the application". It does not preclude the introduction of documents later than 28 days. It is clear that the Rule is aimed to prevent people relying on events that are well passed and what the intention of the Rule is that the decision-maker, or latterly the Tribunal, is evaluating the position as it was or as near as possible as it was to the date of application.
15. Thereafter it is necessary to give due consideration to paragraph 2(b)(iii). Firstly there is no reference within that paragraph to a specific date for the letter being provided. Secondly it makes reference to a level of salary set out within the letter it does not refer to individual payslips. It makes reference to the level of salary relied upon in the application. It is clear that the intention therefore was to give an overall evaluation of a level of salary rather than to specify what it was on a specific date and to take account of slight discrepancies that might arise on either a weekly or monthly basis. In this case it is clear that the Appellant is consequently not being asked to evidence individual payslips and it is accepted overall that the Sponsor's salary meets the requirements of Appendix FM-SE.
16. The 28 day period position is covered by the production of bank statements and payslips. It does not specify that it refers to the employer's letter which is an overall matter and I am satisfied that there is no further need for a letter to cover that period. All that it constitutes is a requirement for the provision of information. When looked at in both an objective manner and as a matter of construction of the Rules it would be wrong to describe the provision of the letter from the employer as being a document prescribed within paragraph (l) for all the reasons given above.
17. In such circumstances the decision of the First-tier Tribunal contained at paragraph 14 a material error of law. I set aside the decision of the First-tier Tribunal Judge and I remake the decision allowing the Appellant's appeal under the Immigration Rules.
Notice of Decision
The Appellant's appeal is allowed under the Immigration Rules.
No anonymity direction is made.

Signed Date 1st November 2016

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD
No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris