Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/15463/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 September 2016
On 18 October 2016

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

TAHMINA AKTAR
(anonymity direction NOT MADE)

Appellant
and

ENTRY CLEARANCE OFFICER, NEW DELHI

Respondent

Representation:

For the Appellant: Mr M K Mustafa, Kalam Solicitors
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Bangladesh. She appealed to a Judge of the First-tier Tribunal against the refusal of the respondent on 31 October 2014 to issue her with entry clearance as the spouse of the sponsor, Mr Md Abdul Ahad.

2. The refusal was on the basis that the Entry Clearance Officer did not accept that the sponsor's claimed employment was genuine, believed that false declarations had been made in respect of his ongoing employment and income and also refused it under Appendix FM-SE because he had failed to provide specified evidence in that the employment letter provided was dated more than 28 prior to the date of the application.

3. The judge, having heard evidence, found it was more likely than not that the sponsor's employment was genuine employment and did not find that the respondent had established that false declarations were made. The judge noted however that the employer's letter was not within the required timescale, being more than 28 days prior to the date of the application. The judge noted what was said in the IDIs concerning evidential flexibility but did not accept that there had been a failure to comply with the evidential flexibility policy. The document was not missing and it failed to comply with the requirements of the Rules. The appeal was hence dismissed on this basis.

4. The appellant sought and was granted permission to appeal on the basis that it was arguable that the respondent had failed to apply her evidential flexibility policy to the employer's letter.

5. Mr Mustafa relied on and developed the points made in the grounds. He argued that, in line with paragraph 3.4.2 of the relevant IDI, the fact of the letter of the employer not being dated within 28 days of the application was a minor evidential problem of the kind mentioned in paragraph 3.4.2 in respect of which the decision maker was also able to grant an application despite such a problem. In addition the respondent had failed to exercise discretion in respect of paragraph D of Appendix FM-SE(d)(i) which is relevant where the applicant has submitted a document in the wrong format. It would be permissible for an application to be granted exceptionally provided the decision maker was satisfied that the document was genuine and that the applicant met the requirement to which the document related. It was argued that the letter was a document in the wrong format, and on the basis that the judge had found that the job was genuine, it followed that the letter was genuine and also it complied with the Appendix FM-SE requirements. There had therefore been a complete failure on the part of the Secretary of State to exercise discretion and the judge had erred in not so finding.

6. As regards ground 2, there was a conflict between the Immigration Rules and ss.85 and 86 of the 2002 Act. Section 85A did not prohibit a First-tier Tribunal Judge from considering post application evidence, as that provision had not been amended, and this was confirmed at paragraph 58 of SS (Congo) [2015] EWCA Civ 387. The appellant was not trying to bring in an improvement in circumstances but asking the judge to consider evidence that was before the Secretary of State and before her. In light of this it was argued that the judge had erred materially in not considering evidence appertaining at the time of decision to refuse and not discharging the obligation under Section 86.

7. In his submissions Mr Bramble relied on and developed points made in the Rule 24 response. As regards ground 1, it was not a case of missing evidence, but Appendix FM-SE specifically required the provision of an employment letter not dated more than 28 days before the application. It was not a minor evidential problem but a specific requirement of evidence. The judge had noted this at paragraph 24 of her decision. With regard to evidential flexibility, what was quoted in the grounds failed to set out the preamble which referred to the specified evidence to be provided. It was not a case of the document being in the wrong format but it was the case that the letter bore a date more than 28 days before the application which was a requirement of the Rules. He referred to the decision of the Upper Tribunal in Akhter [2014] UKUT 00297 (IAC). This was a reminder that it was a question of the clear and simple meaning of what was required and that did not apply in this set of circumstances.

8. With regard to ground 2, the preamble to the Rule required evidence to be provided including for salaried work and on that basis there was a specific historic time line in the Rules which needed to be satisfied and the evidence provided fell short of the requirements of the specified evidence. Accordingly there were no errors of law in the decision.

9. Mr Mustafa had no points to make by way of reply.

10. I reserved my decision.

Discussion

11. It is common ground that the application did not comply with the requirement of paragraph EC-P.1.1(d) of Appendix FM of the Immigration Rules (E-ECP.3.1), in that the employment letter provided to evidence the sponsor's employment was dated more than 28 days prior to the application. On behalf of the applicant it is argued that the application may be granted exceptionally, provided the decision maker is satisfied that the document is genuine and the applicant meets the requirement to which the document relates, under paragraph D of the Appendix FM-SED(d)(i) if the applicant has submitted a document in the wrong format. I do not however consider that this can be described as a document in the wrong format. There is nothing wrong with the format of the document, but it is the fact that its date is not within 28 days of the period prior to the application which is the problem with the document. I accept that it follows from the judge's finding that the document is genuine, but that does not alter the fact that it cannot be said to be a document in the wrong format and therefore cannot benefit from the provisions of paragraph D.

12. Nor do I agree that the failure to comply with this mandatory requirement of the Rules is properly to be described as a minor evidential problem. The requirement is a clear one, and it was not met. It is entirely open to the respondent to have a policy which includes the strict requirements such as this, and albeit there is the IDI to which I have referred above which enables the decision maker to grant an application despite minor evidential problems, I do not consider that this can be so characterised and as a consequence the judge did not err in that regard either.

13. As regards ground 2, the point here I think is answered by whist Mr Bramble said about the specific historic time line which is required. It is, as noted above, a mandatory requirement of the Rules that the employment letter must not be dated more than 28 days prior to the date of the application. It is quite separate from the fact that Section 83(5) of the 2002 Act allows a First-tier Judge to consider evidence about the circumstances appertaining at the time of the respondent's decision, and nor is the matter affected by s.86(2) which places a positive obligation on the judge to determine any matter which s.85 requires her to consider. The judge was not in a position where she could ignore the specific provision of the Immigration Rule setting this particular timeline that it does, on the basis of what she was empowered to do by s.85(5). I do not see anything in SS (Congo) to assist the appellant in this regard. The remedy in this situation to make a fresh application which complies with the requirements of the Immigration Rules. Relief cannot be obtained by effectively seeking to have a provision of the Rules ignored as is sought to be done in this case.

Notice of Decision

14. Accordingly I consider that no error of law in the judge's decision has been identified. Her decision dismissing the appeal remains.

15. No anonymity direction is made.

Signed Date

Upper Tribunal Judge Allen 18 October 2016

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Upper Tribunal Judge Allen 18 October 2016