Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/11488/2014

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision and Reasons Promulgated
On 31 October 2016
On 08 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between

NABILA LOUINI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs A Cherbal
For the Respondent: Ms Petterson Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. Mrs Amanda Cherbal attended court to assist her brother in law the Sponsor. I explained the procedure to her and the Appellant explaining the roles of Ms Petterson and myself in the proceedings.
3. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
4. This is a resumed hearing of an appeal by the Appellant against the decision of First-tier Tribunal Judge Mulvenna promulgated on 8 June 2015 which dismissed the Appellant's appeal against the decision of the Respondent to refuse the Appellants application for entry clearance as the spouse of a person present and settled in the UK namely Yousef Cherbal.
5. The refusal was on the basis that the Appellant had not submitted all those mandatorily required documents to establish that the income threshold was met. The Appellants case was that all of the required documents had been sent but that they had been overlooked.
6. The Appellants applied for permission to appeal that decision and at a hearing on 15 May 2016 Deputy Upper Tribunal Judge Baird set aside the Judge's decision on the basis that there were errors of law in the Judges failure to grant an adjournment to the Presenting Officer who conceded that they were unable to produce the bundle of documents which the ECO considered in refusing the application as they had been mislaid and also the Judge erred in failing to consider in the round all of the evidence before him.
7. At paragraph 17 of her decision she states:
"I find that the decision cannot stand and that the appeal should be reheard in the Upper Tribunal at which time at the very least a list of documents relied upon will be produced by the Respondent and hopefully the documents themselves.'
8. Ms Petterson very fairly acknowledged before me that the Respondent had lost the documents submitted by the Appellant in support of the application many of which were original, irreplaceable, evidence of his financial situation. She accepted therefore that the Respondent could not therefore comply with the direction made by Deputy Upper Tribunal Judge Baird.
9. Ms Petterson also acknowledged that because the Refusal Letter and ECM Review were written in such general terms wholly failing to list what documents it was asserted were missing she was actually unable to identify what the live issues in the case were other than to concede that while an issue had originally been raised about the standing of the accountant who prepared the report for the Appellant in respect of his business it was no longer asserted that he did not belong to the required professional body.
10. The Appellant of course continued to maintain that all of the required bank statements that matched his claimed income had been provided. Before me his sister in law produced all of the bank statements covering the relevant period and asserted that there was no reason why the required bank statements would not have been sent as they were available and showed that the income and deposits were as claimed.
11. Ms Petterson very fairly conceded that in the light of the contents of the tax return at page 17 of the bundle which confirmed that the Sponsor met the financial requirements and that the Respondents loss of the documents in issue prevented the Appellant from fairly arguing his case she would not challenge the Sponsors assertion that all of the required documentation had been submitted with the appeal and that the appeal should be allowed. I am satisfied that this is a concession properly made.
CONCLUSION
12. I therefore find that the Appellant has discharged the burden of proof on her to show that the terms of Appendix FM of the Rules are met
DECISION
13. The appeal is allowed.

Signed Date 4.11.2016
Deputy Upper Tribunal Judge Birrell

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make a full award of any fee paid as the loss of all the documents in this case was entirely the fault of the Respondent, the refusal letter and ECM reviews failed to identify what documents were missing and thereby the Appellant was unable to argue his case. It was accepted that all the required documents were submitted and lost.

Signed

Debra Birrell Dated 4.11.2016
Judge of the First-tier Tribunal