Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/13435/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 June 2016
On 23 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

MRS HANIFE IDRIZ KRASNIQI
(NO ANONYMITY ORDER MADE)
Appellant
v

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Daniel Coleman of Counsel, instructed by Suriya & Co Solicitors
For the Respondent: Mr P Duffy, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Kosovo, born on 25 November 1979. On 16 September 2014, she applied for entry clearance for settlement in the UK as the spouse of Mr Arben Krasniqi. This application was refused on 9 October 2014 on the basis that it was not accepted that the relationship was genuine and subsisting nor that they intended living together permanently in the United Kingdom and that the Appellant had not satisfied all the financial requirements of the Immigration Rules.
2. The Appellant appealed against this decision and her appeal came before Judge of the First tier Tribunal Bradshaw for hearing on 15 October 2015. In a decision and reasons promulgated on 27 October 2015 the Judge dismissed the appeal. At [11] the Judge "found Mr Krasniqi to be an entirely credible witness about his relationship with his wife, their meetings and contact between them and ? was satisfied on balance that the relationship between the appellant and him is genuine and subsisting and that they intend to live together permanently in the UK thus meeting the requirements of paragraph E-ECP 3.6 and 3.10 of Appendix FM." However, the Judge went on to find at [16] that the specified requirements of Appendix FM- SE 7(d) and (h) had not been complied with in that the Appellant had not produced her husband's Unique Tax Reference number [7(d)] nor unaudited accounts along with an accountant's certificate of confirmation [(h)(i)(bb)]. The Judge found at [16] that the Appellant "must and can provide unaudited accounts for her husband's self-employed business."
3. An application for permission to appeal to the Upper Tribunal was made in-time on 4 November 2015. The grounds in support of the application asserted inter alia at [2] that the judge erred in according no weight to the income and tax details provided by the Appellant's sponsor husband, which was a material error as it affected the outcome of the appeal and at [3] that the Judge erred in assessing the accounts made available immediately following the hearing and prior to his determination which seriously impacted on his determination to refuse the appeal and at [11] that the Immigration Judge failed to consider the impact upon the appellant as regards her family life under Article 8. The appellant pleaded Article 8 and it should have been considered by the Immigration Judge.
4. Permission to appeal was granted by Judge of the First tier Tribunal PJM Hollingworth on the basis that an arguable error of law had arisen in that Article 8 was invoked in the grounds of appeal but has not been considered by the Judge who dismissed the appeal only under the Immigration Rules.
Hearing
5. The appeal came before me for hearing on 13 June 2016, by which time Mr Coleman had shown Mr Duffy the Sponsor's accounts. Mr Duffy accepted that he had seen these and that if the First tier Tribunal Judge had had them then there was a material error of law. Mr Coleman stated that his instructions are that at the end of the hearing the Judge gave 3 weeks to send in the accounts. In respect of the reasons given for permission to appeal, Mr Coleman stated that the decision had been made under the Rules and article 8 had been raised in the appeal brought against the refusal. The witness evidence contained family life and article 8 as did the grounds of appeal. The only reference to article 8 is at [5] where the Judge said that it was not argued before her at the hearing but there was no indication or reference to it being conceded and it was, therefore, a live issue and the Judge was bound to deal with it absent an express concession. Thus the failure to deal with it was therefore material and is an error of law.
6. Mr Duffy stated in terms that he accepted that the requirements of Appendix FM SE are met. In terms of the Article 8 point, his view was that the grounds of appeal are generic and do not advance an appeal outside the Rules cf. Sarkar [2014] EWCA Civ 195 and that it was not a material error not to deal with unparticularised grounds before the First tier Tribunal.
7. In his reply, Mr Coleman stated that the Sponsor's unique tax reference number was before the Judge which she has overlooked.
Decision
8. It is the case that permission to appeal was granted only with reference to Article 8 of ECHR albeit a challenge to the Judge's findings regarding Appendix FM-SE and the financial requirements of the Rules was clearly raised in the grounds of appeal at [2] and [3] - [3] above refers. In Ferrer (limited appeal grounds; Alvi) [2012] UKUT 00304 (IAC) the Upper Tribunal held inter alia that if the First-tier Tribunal judge nevertheless intends to grant permission only in respect of certain of the applicant's grounds, the judge should make this abundantly plain, both in his or her decision under rule 25(5) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and by ensuring that the Tribunal's administrative staff send out the proper notice, informing the applicant of the right to apply to the Upper Tribunal for permission to appeal on grounds on which the applicant has been unsuccessful in the application to the First-tier Tribunal. In this case, no reference is made in the grant of permission to the grounds relating to Appendix FM-SE and there is no refusal of permission in respect of those grounds nor was a notice sent to the Appellant informing her of her right to apply for permission to appeal to the Upper Tribunal. In these circumstances and in light of Mr Duffy's helpful agreement that all the grounds raised were arguable, I find that it is open to me to consider paragraphs [2] and [3] of the grounds of appeal.
9. In so doing, I note that there is no reference within the decision and reasons of First tier Tribunal Judge Bradshaw to permitting the Appellant three weeks to send in her husband's accounts, however, on the Court file is a fax dated 21 October 2015 from Suriya & Co solicitors containing a letter dated 21 October 2015 attaching a copy of the Sponsor's accounts for the year ending 5 April 2014. This document is stamped as having been received at Hatton Cross on 21 October 2015. The covering letter also confirms service upon the Home Office Presenting Officer, Mr Grennan. Therefore, in light of this evidence and given that Mr Duffy did not seek to argue to the contrary, I accept Mr Coleman's statement that, whilst he was not counsel at that hearing, he is instructed that the Judge directed that the Sponsor's accounts might be sent within 3 weeks following the end of the hearing on 15 October 2015.
10. I find that the faxed accounts also contain the Sponsor's Unique Tax Reference number, which matches that on the SA302 tax calculations previously submitted to the ECO. Whilst the accounts were sent to Hatton Cross hearing centre on 21 October 2016, marked for the attention of First tier Tribunal Judge Bradshaw I find that, whilst his decision was not promulgated until 27 October 2015, the decision is signed and dated 20 October 2015, which was only five days after the hearing and did not permit sufficient time for receipt of the documents he had permitted to be sent in after the hearing.
11. For these reasons I find that First tier Tribunal Judge Bradshaw erred materially in law in proceeding to determine the Appellant's appeal without giving her the opportunity to present evidence after the hearing, in accordance with his direction to that effect. In obtaining a copy of her husband's accounts and submitting them to the First tier Tribunal on 21 October 2015, the Appellant was doing so on the clear understanding that these documents would be considered by the Judge prior to reaching a decision on her appeal and the fact that they were not so considered is in breach of natural justice and is unfair.
12. Mr Duffy was provided with a copy of the Sponsor's accounts prior to the hearing before me and expressly accepted that, in light of these documents, the requirements of Appendix FM-SE were met.
13. Applying the principle in DR (ECO: post-decision evidence) Morocco* [2005] UKIAT 00038 I remake the decision and allow the appeal on the basis that the requirements of the Immigration Rules are met.
Notice of decision
14. The appeal is allowed.

Deputy Upper Tribunal Judge Chapman

22 August 2016