Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/14996/2014
OA/14998/2014
OA/15000/2014
OA/15001/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30 September 2016
On 14 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

LUBNA [A]
[h s]
[a f]
[h z]
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

ENTRY CLEARANCE OFFICER, ISLAMABAD
Respondent

Representation:
For the Appellant: Mr C Fletcher, Counsel, instructed by Marks & Marks Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellants against the decision of First-tier Tribunal Judge Shand, QC (the judge), promulgated on 17 March 2016, by which he dismissed the appeals under the Immigration Rules. The first Appellant is the mother of the other three. By applications made on 20 February 2014, the Appellants sought to join the sponsor (the first Appellant's husband) and the father of the other three) in the United Kingdom. The applications were refused on 30 October 2014. In light of the initial refusal and the Entry Clearance Manager's review the sole issue related to specified financial evidence under Appendix FM-SE to the Immigration Rules. In particular, the relevant bank statement indicating the required level of savings ended on 20 January 2014. This was short (only just) of the required 28-day period leading up to the date of the application.
The judge's decision
2. Having set out the evidence before him the judge goes on to deal with the evidence at paragraph 17 onwards. He states that the financial requirements of Appendix FM -SE are mandatory, relying for this proposition on the Upper Tribunal decision in Sultana [2014] UKUT 00540 (IAC). He notes that the appellants' Counsel (Mr Chohan) accepted the relevant bank statements were dated earlier than the 28 day required period.
3. In paragraph 18 the judge refers to a submission made by Mr Chohan concerning paragraph 245DD of the Rules. The judge comments correctly that this paragraph had no application to the appellants' case as 245DD relates to Points-Based System cases. The judge goes on to look at the correct provision in respect of the arguments put forward on the appellants' behalf, namely paragraph D of Appendix FM-SE. This provision confers upon the Respondent a discretion as to the waiver of the strict evidential requirements imposed by Appendix FM SE and in respect of any further enquiry as to additional evidence. The judge concluded that in the present case no issue of discretion arose. It is said that this resulted from the fact that the Appellants had not sought to raise the issue of discretion when making their applications, or indeed by way of a covering letter from the solicitors dated 20 February 2014. The judge concludes that the Respondent was under no obligation to enquire whether or not an additional bank statement covering the requisite 28-day period either existed or could be produced. The appeals were therefore dismissed in respect of the Immigration Rules.
4. At paragraph 20 the judge notes that whilst Article 8 is referred to in bare terms in the notice of appeal, no submissions upon this provision were made to him. In those circumstances the judge concluded that he need not address the issue.
The grounds of appeal and grant of permission
5. At paragraph 5 of the grounds of appeal it is said that there was indeed a discretion available to the Respondent in respect of the missing financial evidence. This discretion arose under paragraph D(e)(i)(aa) of Appendix FM-SE.
6. At paragraph 6 of the grounds and in reliance upon Sultana it is said that the discretion should have been considered by the Respondent notwithstanding the fact that the appellants had not raised it at any stage prior to the decision of the Entry Clearance Officer being made.
7. It is contended at paragraph 9 of the grounds that the evidential deficit in this case was minor.
8. The second ground of challenge is that the judge should it is said have dealt with Article 8 himself notwithstanding the fact that no submissions were made on the point at the hearing.
9. Permission to appeal was granted by First-tier Tribunal Judge Robertson on 30 August 2016. He regarded both grounds as being arguable.
The hearing before me
10. Miss Fletcher relied on the grounds. She accepted, as it had been before the judge, that the evidence submitted with the application was indeed deficient, albeit only by some two days. Miss Fletcher submitted that nonetheless the Respondent did have a discretion and that the judge was wrong not to have found that this was the case. Miss Fletcher accepted that paragraph D(e) of Appendix FM-SE had not been raised in the grounds or indeed before the First-tier Tribunal.
11. Mr Walker relied on the Respondent's Rule 24 reply. He acknowledged that the judge's decision may seem somewhat harsh but nonetheless it was open to him in the circumstances, particularly given the fact that the issue of discretion had not been raised before the Entry Clearance Officer and also that the deficiency in the financial evidence did not constitute a missing document from a sequence but was simply missing mandatory evidence.
Decision on error of law
12. Although I have considerable sympathy with the Appellants in this case, I conclude that the judge did not materially error of law. My reasons for this conclusion are as follows.
13. First, it is simply a fact that despite the Appellants being legally represented at the time that the applications were made, nothing was said at that point about the deficiency in the financial evidence despite (I assume) this being known about. There is nothing in the application or in the covering letter from the solicitors. This is somewhat unfortunate to say the least, particularly given the warning provided by the Upper Tribunal at paragraph 20 of Sultana.
14. Second, the financial requirements of Appendix FM-SE are mandatory and the judge was right to have said so.
15. Third, the only basis upon which the Appellants have sought to challenge the judge's conclusions on the discretion issue is reliance upon paragraph D(b)(e)(i)(aa) of Appendix FM-SE. This particular provision states that where a document within a sequence is found to be missing, contact can be made with the applicant in order to rectify the situation. The potential discretion under paragraph E(e) of Appendix FM -SE is not raised in the grounds of appeal, nor has it been specifically relied upon before me.
16. Fourth, I accept that whilst the case of Sultana makes it clear that evidential deficiencies and reliance upon discretion should be raised by applicants or other representatives at the outset, this does not necessarily mean that the first instance decision maker should not consider exercising a discretion in an appropriate case. In other words, Sultana does not represent an absolute bar to the consideration of a discretion under Appendix FM-SE.
17. Fifth, to the extent that the judge might appear to have regarded Sultana as representing such an absolute bar, I would conclude that he erred. Having said that it is unclear perhaps as to whether he has indeed adopted this position.
18. Sixth, for the sake of argument, I will assume that the judge has erred in the manner described above. However, there is a major, and indeed an insuperable, obstacle to the Appellants' challenge on the discretion issue in this case.
19. I have looked at the relevant bank statement submitted with the application. It is not, I find, part of a sequence of documents any of which were missing. It is in effect a stand-alone document comprising of two pages and covering a particular period of time. That period of time of course fell short of the requisite 28-day period.
20. Having regard to the comments of Mr Justice Foskett in the case of GU [2014] EWHC 1634 Admin and the bank statement in evidence before me, there is only one conclusion that can properly be reached, namely that the bank statement was not part of a sequence of documents. In fact what was missing from the evidence submitted with the application was a further bank statement. In this regard specified and mandatory evidence had simply not been provided. In light of this the argument based upon paragraph D(b)(i)(aa) cannot succeed.
21. Seventh, no other basis for the contended exercise of discretion by the Respondent has been raised. I have myself looked at the guidance on the financial evidence contained in Appendix FM Section FM 1.7 May 2016, at paragraph 3.4.1 onwards and there is nothing there that can assist the Appellants, not least because there has never been as far as I can see any argument or challenge on the basis that any policy guidance was not properly followed by the Respondent.
22. Eighth, as a result of the foregoing, any error by the judge in respect of the discretionary issue was in any event immaterial to the outcome of the appeal under the Immigration Rules.
23. Ninth, in respect of the Article 8 point, Miss Fletcher could not explain why the Article 8 issue ws not pursued by way of submissions and/or evidence at the First-tier Tribunal hearing. I find as a fact that it was not, having regard to the papers before me and the Record of Proceedings contained on file. It is right that Article 8 was stated in bald terms in the notice of appeal to the First-tier Tribunal and that it was not formally withdraw before the judge.
24. However, with any relevant evidence being led and/or submissions being made on what is not an entirely straightforward element of any case in this day and age, it is simply untenable to suggest that the judge erred in failing to address the issue in any substance. It may be that Counsel before the First-tier decided that any Article 8 case simply lacked sufficient merit to pursue the point at the hearing. In any event, on the state of the case law as it stands, and the fact that the Appellants would have failed to have met the relevant Immigration Rules, it is very difficult indeed to see how they could have succeeded on Article 8 grounds in any event.
25. For all of the above reasons the decision of the First-tier Tribunal stands.
Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The Appellants' appeals to the Upper Tribunal are dismissed.
The decision of the First-tier Tribunal stands.
No anonymity direction is made.

Signed Date: 12 October 2016
Deputy Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date: 12 October 2016
Deputy Upper Tribunal Judge Norton-Taylor