Tribunal decisions

The decision

IAC-AH-dp-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/15392/2014
OA/15394/2014
OA/15395/2014

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 12 October 2016
On 16 December 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

ENTRY CLEARANCE OFFICER
Appellant
and

a m
f m
s m
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Mr Diwnycz, Senior Presenting Officer
For the Respondents: Mr Brown instructed by Crater Law Solicitors

DECISION AND REASONS
1. I shall refer to the Entry Clearance Officer as the respondent and to the respondents as the appellants as they appeared respectively before the First-tier Tribunal. The appellants are all citizens of Yemen and are siblings. The second appellant was born in 2009 and the first and third appellants are twins, born in 2006. This decision will be published so, because all three appellants are minors, I have made an anonymity direction.
2. The Entry Clearance Officer (ECO) found that the appellants did not satisfy the requirements of paragraph 297 of HC 395 (as amended), in particular (v):
Requirements for indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom
297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:
(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
(a) both parents are present and settled in the United Kingdom; or
(b) both parents are being admitted on the same occasion for settlement; or
(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or
(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child's upbringing; or
(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; and
(ii) is under the age of 18; and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and
(v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and
(vi) holds a valid United Kingdom entry clearance for entry in this capacity; and
(vii) does not fall for refusal under the general grounds for refusal.
3. In addition, the application was refused under paragraph 320(xi) on the grounds that the appellants had used deception in their applications.
4. The appellants appealed against the refusals to the First-tier Tribunal (Judge O R Williams) which, in a decision promulgated on 27 April 2016 allowed the appeal under the Immigration Rules and on Article 8 ECHR grounds. The Entry Clearance Officer now appeals, with permission, to the Upper Tribunal.
5. The refusal turned on a narrow issue:
You have stated on your application form your father is in employment as a sales assistant with Durdur Food Store. In support of your application you provided wage slips, bank statements and a P60. However, checks undertaken by this office with HMRC showed that your father ceased employment on 5/06/2014 which is over a month before you submitted your visa application. The results of the checks undertaken are detailed in a Document Verification Report held by this office. I am satisfied that you have used deception in your application for entry clearance. I therefore refuse your application under paragraphs 320(xi) of the Immigration Rules.
As your sponsor is no longer in employment I am not satisfied you will be maintained adequately without recourse to public funds. I therefore refuse your application under paragraph 297(v) of the Immigration Rules.
6. Judge Williams refers [5] to the refusal having been "amended/subject to concession". Unfortunately, I cannot find the respondent's letter of 13 November 2015 which supposedly contains this amendment/concession. However, before the Upper Tribunal, Mr Diwnycz, for the respondent, did not seek to persuade me that refusal on paragraph 320 grounds should be upheld. He was correct not to do so. It is accepted by both parties that the sponsor (the father of the appellants) was working for Durdur Food Stores both before the date of application for entry clearance and following the refusal. He still works for that store. The confusion appears to have arisen is in an aspect of a period of leave taken from the store by the sponsor. There is a letter from the Durdur Food Store dated 6 May 2015 part of which reads as follows:
[The sponsor] is employed from July 2013 on a permanent contract. On 3/6/14 he asked for leave to submit his children's visa application. It is not our policy to provide unpaid employment. His payslip of the 5/6/2014 was for the month of May 2014. We notified our accountants who removed him the payroll on 31 May 2014. The accountant confirmed that all payslips submitted are authentic. He was unsure how long it would take to sort out his children's visa application. We agreed with him that his employment would resume on his return. [The sponsor] would not have been aware we had removed him from the payroll as we agreed it would be for a period of unpaid leave.
7. The evidence which the ECO obtained from the HMRC was correct; HMRC's records show that the appellant had ceased work as from 31 May 2014. What appears to have happened (as is evidenced by the helpful letter from Durdur Store) is that, when the sponsor initially asked for leave to travel abroad to make the appellants' visa applications on their behalf, Durdur Food Store ceased his employment because (as they say in their letter) it was not their "policy to provide unpaid employment". Subsequently, that store appears to have reversed that policy or chose not to enforce in in relation to the sponsor as the letter plainly indicates. The question for the First-tier Tribunal was to look beyond the prima facie inferences to be drawn from the evidence (especially that from the HMRC) to seek to establish what the actual position was as regard the sponsor's employment. In the light of the letter from Durdur Food Store, I find that the Tribunal was entitled to conclude that, notwithstanding the evidence from HMRC, the sponsor had, in fact, been granted a period of unpaid leave by his employers. Since paragraph 297 does not impose strict documentary evidence requirements, it was open to the judge to conclude that, notwithstanding the sponsor's period of unpaid leave, his employment at Durdur Food Store was secure and that it generated an income for the sponsor which would enable the appellants to live in the United Kingdom without recourse to public funds. It follows from that finding that there can be no question that the sponsor or the appellants have attempted to deceive the Entry Clearance Officer; indeed, on the contrary very clear evidence has been provided by the sponsor from his employers with a view to establishing the true position.
8. In the circumstances, this appeal is dismissed.

Notice of Decision

The appeal is dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 2 November 2016

Upper Tribunal Judge Clive Lane