Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/15546/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 4th August 2016
On 9th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

Uzma Marwat KHAN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

ENTRY CLEARANCE OFFICER - ISLAMABAD
Respondent

Representation:
For the Appellant: No legal representation
For the Respondent: Mr G Harrison, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against a decision of Judge Mark Eldridge of the First-tier Tribunal (the FTT) promulgated on 4th November 2015.
2. The Appellant is a female citizen of Pakistan born 10th May 1987 who on 30th April 2014 applied for entry clearance to enable her to settle in the United Kingdom with her husband Marwat Khan (the Sponsor), who is settled in the United Kingdom.
3. That application was refused on 29th October 2014, and two reasons were given for refusal. Firstly the Respondent did not accept that the Sponsor had undergone a valid divorce, and therefore was not satisfied that his marriage to the Appellant was valid.
4. Secondly the Respondent was not satisfied that the financial requirements of Appendix FM were satisfied as wage slips covering a six month period prior to the date of application had not been submitted.
5. The Appellant appealed pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). Enclosed with the appeal were the Sponsor's payslips for April 2014, a copy of a decree absolute, a P60 form, and bank statements. The Appellant requested that her appeal be decided on the papers, and did not request an oral hearing.
6. The appeal was reviewed by an Entry Clearance Manager who was not satisfied that a valid divorce had taken place because the Sponsor had not provided the original divorce decree. It was noted that bank statements for the six month period prior to the application for entry clearance had been submitted, as had payslips for April 2014, but there were no payslips for February and March 2014 and therefore the specified documentary evidence required had not been produced. The decision to refuse entry clearance was maintained.
7. The FTT decided the appeal on the papers as requested and was satisfied that the Sponsor had undergone a valid divorce, and therefore his marriage to the Appellant was valid. The FTT did not however accept that the financial requirements of Appendix FM were satisfied. The FTT noted that the payslips must cover a period of six months prior to the date of the application which was made in April 2014. No payslips for February or March 2014 had been provided and therefore the requirements of paragraph 2(a) of Appendix FM-SE were not satisfied. The appeal was dismissed as the FTT found that the financial requirements of the Immigration Rules were not met, and did not consider that refusal of entry clearance would breach Article 8 of the 1950 European Convention on Human Rights (the 1950 Convention).
8. The Appellant applied for permission to appeal to the Upper Tribunal. In summary it was contended that the payslips for February and March 2014 had been submitted with the initial application for entry clearance. It was contended that the Sponsor's four salary payments for February 2014, and the four salary payments for March 2014 were evidenced in the bank statements that had been submitted, and the FTT had erred in law by failing to consider the bank statements.
9. Alternatively, if the payslips for February and March 2014 were missing, it was contended that the Respondent should have considered Appendix FM-SE D(d). It was submitted that where documents are missing a decision maker can grant the application exceptionally if the information is verifiable from other documents submitted. In this case the February and March 2014 salary payments were verifiable from the bank statements submitted.
10. Judge Nicholson of the FTT granted permission to appeal in the following terms;
"2. The judge accepted that the Appellant and her Sponsor had entered into a valid marriage but dismissed the appeal on the grounds that specified evidence had not been sent in as required with the application.
3. The grounds contend, amongst other things, that the judge should have found that the Respondent's decision was not in accordance with the law because of a failure to exercise a discretion under Appendix FM paragraph D.
4. Appendix FMD(b)(ii) is widely drawn and gives the Respondent a discretion to request a specified document when it is missing - which was arguably the case here. Pursuant to Appendix FM D(c) there would have been no need for the Respondent to exercise that discretion if the appeal failed because of the validity of the marriage - but the judge found the marriage was valid.
5. It is perhaps understandable that the judge did not deal with this issue because the appeal proceeded on the papers and the grounds of appeal to the judge did not specifically refer to the discretion under Appendix FM D(b)(ii).
6. However, the grounds of appeal did contend that the Respondent's decision was 'not in accordance with the law' and it is arguable that the judge should have addressed that ground and in so doing considered the issue by reference to Appendix FM D(b)(ii).
7. Permission is granted on this ground. I do not refuse permission on the other grounds."
11. The reference to Appendix FM in the grant of permission should be a reference to Appendix FM-SE.
12. Following the grant of permission the Respondent lodged a response pursuant to rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008 contending in summary that there was no requirement for the Respondent to exercise discretion in relation to missing documentation, as it was not accepted that further documentation existed. It was for the Appellant to ensure that documentation that satisfied the requirements of the Immigration Rules was submitted.
13. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FTT decision should be set aside.
The Upper Tribunal Hearing
14. There was no attendance at the hearing on behalf of the Appellant. I considered rule 38 of the 2008 Procedure Rules. I was satisfied that both the Appellant and Sponsor had been notified of the time, date and place of the Upper Tribunal hearing. Notice of the hearing had been sent on 9th June 2016, to the address provided by the Sponsor and Appellant for correspondence.
15. There was no explanation for the non-attendance, and no application for an adjournment. I was invited by Mr Harrison to proceed with the hearing, and considered that it was in the interests of justice to do so.
16. I then heard submissions from Mr Harrison who relied upon the rule 24 response. I reserved my decision.
My Conclusions and Reasons
17. The issue before me is whether the FTT erred in dismissing the appeal with reference to the financial requirements.
18. The application for entry clearance was refused, in part, because the Sponsor's payslips covering the six month period prior to the date of application had not been submitted. This was made clear both in the initial refusal decision dated 29th October 2014, and the subsequent review by an Entry Clearance Manager dated 2nd April 2015 which specifically referred to the lack of any payslips for February and March 2014.
19. The FTT dealt with the appeal on the papers as requested by the Appellant. I am satisfied that the payslips for February and March 2014 were not on the Tribunal file. Those payslips had not been submitted with the appeal, and were not submitted to the FTT after the Entry Clearance Manager review.
20. The FTT did not err in law in paragraph 16, in finding that the requirements of paragraph 2 of Appendix FM-SE were not met, because payslips covering a period of six months prior to the date of application had not been submitted.
21. The FTT was not provided with any explanation as to why the payslips for February and March 2014 were missing. There was no specific reference to the provisions of Appendix FM-SE D.
22. One of the grounds of appeal to the FTT was that the Respondent's decision was not in accordance with the law, although no particulars were given, and on this point the FTT concluded at paragraph 19;
"19. Finally, the Appellant asserted in her notice of appeal that the decision was otherwise not in accordance with the law. I have seen nothing to justify that contention and conclude that the decision was otherwise lawful."
23. I do not find that the FTT materially erred in law.
24. It is correct that Appendix FM-SE D(b)(ii) provides that if an applicant has not submitted a specified document with the application, the decision maker may contact the applicant to request the document. Sub-paragraph (c) states that the decision maker will not request documents if it is not anticipated that addressing the error or omission referred to in sub-paragraph (b) will lead to a grant because the application will be refused for other reasons.
25. In this case, the Respondent may not have requested the missing payslips, because the application was also refused as it was not accepted that a valid marriage had taken place. In my view, the FTT did not err in concluding that the Respondent's decision was in accordance with the law, even though the FTT subsequently found that the marriage was valid. At the date of refusal, the Respondent was not under an obligation to request missing documents. This is not a case where only one document was missing, as eight payslips had not been provided.
26. I do not accept that the Appellant was entitled to rely upon Appendix FM-SE D(d) because this was not a case where the applicant submitted a document in the wrong format, or a document that was a copy and not an original, or a document that did not contain all the specified information. In this case, eight payslips had not been submitted. It was not the case that any reason or explanation was given either to the Respondent, or the FTT, as to why the payslips had not been provided.
27. I therefore conclude that the FTT considered all the evidence and issues placed before it, and made findings open to it on the evidence, and provided sustainable reasons for those findings.
Notice of Decision

The making of the decision of the FTT did not involve the making of a material error on a point of law. I do not set aside the decision. The appeal is dismissed.

Anonymity

No anonymity direction was made by the FTT. There has been no request for anonymity and I see no need to make an anonymity order.

Signed Date 5th August 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed. There is no fee award.

Signed Date 5th August 2016

Deputy Upper Tribunal Judge M A Hall