Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/22917/2012

THE IMMIGRATION ACTS

Heard at : Field House
Determination Promulgated
On : 18th December 2013
On: 24th December 2013

Before

Upper Tribunal Judge McKee

Between

sheikh ahmad afzal
Appellant
and

ENTRY CLEARANCE OFFICER, DACCA
Respondent

Representation:
For the Appellant: Miss Bryony Rest of David Gray Solicitors
For the Respondent: Miss H. Rackstraw, Presenting Officer

DETERMINATION AND REASONS
1. On 25th October 2012 Mr Afzal’s application for entry clearance was refused under paragraph 281 of the Immigration Rules. Several of the requirements of that rule were said not to have been met, but when the subsequent appeal came before the First-tier Tribunal on 30th July 2013, Judge Hands found that all the requirements of the rule were satisfied, save one. The ECO had queried the evidence that Hafsah Chowdhury, the sponsor, was employed as a teacher by the Bahr Academy, and that she derived an income from this employment sufficient to provide adequate maintenance for herself and her husband. Judge Hands shared those doubts.
2. The judge subjected the documents before her to very close scrutiny, noticing such discrepancies as the sponsor’s P60 for the financial year 2012-2013 showing zero contributions for National Insurance, whereas the sponsor’s pay slip for the month of September 2012 showed a deduction of £1.61 for National Insurance. (Perhaps this could have been regarded as de minimis.) Another example was the letter of 16th July 2013 from the Principal of Bahr Academy, signed by ‘Abdulmuheet’, whom in her oral evidence the sponsor called ‘Abdulwahid’. (The sponsor insists that she did say ‘Abdulmuheet’, and that the judge must have misheard her.) But the principal discrepancy was the apparent mismatch between the sponsor’s pay, as shown in the series of monthly pay slips running from January to December 2012, and the deposits placed in the sponsor’s account with Barclays Bank, as shown in the monthly statements for the same period.
3. In the Appellant’s Bundle was a list compiled by Mrs Chowdhury, purporting to reconcile the amounts shown on the monthly pay slips with the amounts shown in the monthly bank statements. Thus, for the month of June 2012, the pay slip shows a payment of £498.48. This, the sponsor says, was paid to her by way of two cheques, one for £253.47 (deposited in her Barclays Bank account on 22nd June) and one for £196.69 (deposited on 2nd July 2012), with the total of £498.48 being made up by a cash payment of £48.32, which was spent by Mrs Chowdhury. These cash supplements recur in five other months, while in one month (May) the sponsor says she received no cheque at all, and the monthly pay of £364.37 was given to her in cash. None of these cash payments were deposited with the bank. They are all said to have been spent.
4. Judge Hands took the view that the table compiled by the sponsor was of little evidential value. The amounts which Mrs Chowdhury says were paid to her by cheque do correspond with the deposits recorded in her bank statements, but it would have been easy for her to run through her bank statements and simply copy down all the deposits, which could then be held out as representing the greater part of her monthly income from Bahr Academy. Another observation which the judge could have made, and which only occurred to me after today’s hearing, is that there is only the sponsor’s word for it that the shortfall between the deposits in the bank and the amount shown on the monthly pay slips was made up by cash in hand. For one month (May 2012) no deposits were made at all, and Mrs Chowdhury says that her monthly pay of £364.37 was given to her entirely in cash, which, in common with the other cash payments, was not deposited but spent.
5. Not only was Judge Hands not satisfied that it had been established, on the evidence, that the funds from the sponsor’s employment would be enough to maintain a married couple in terms of the Immigration Rules, but she was not satisfied that the sponsor was employed by Bahr Academy at all. The consequent dismissal of the appeal was challenged by way of grounds settled by Miss Rest. Permission to appeal to the Upper Tribunal was initially refused by Designated Judge Taylor, but fared better on renewal before Upper Tribunal Judge Coker. After hearing very helpful and detailed submissions from both representatives, I was able to identify an error of law on the part of the First-tier Tribunal.
6. On the evidence before Judge Hands, I do not think it was reasonably open to her to find that the sponsor was not employed by Bahr Academy at all. Apart from the pay slips ostensibly issued by Bahr Academy and the letter from the Principal, the Appellant’s Bundle contained two P60s giving the sponsor’s employer as Bahr Academy, and two Notices of Coding naming Bahr Academy as the sponsor’s employer. In October 2011 a check made by the Criminal Records Bureau disclosed that there was nothing which rendered the sponsor unsuitable for the post of teacher at Bahr Academy, for which she had obviously applied. There was a letter from the Headteacher of the Islamic school at which the sponsor had taught from 2007 to 2011, along with the CRB disclosure in February 2007, when the sponsor was being considered for a teaching post at that school. There was also a translation of the certificate issued in 2006, showing that the sponsor had successfully completed a BA degree course in Islamic Theology and the Arabic language. Thus there was every indication in the Appellant’s Bundle that the sponsor was qualified to teach at an Islamic school, and that she had indeed been teaching. On the evidence available to the First-tier Tribunal, it was most unlikely that the sponsor had perpetrated an elaborate fraud. Miss Rest has now shown me a print-out taken from the Bahr Academy’s website, in which the sponsor is named as one of the teachers on the Theology course. That was not shown to Judge Hands, but it confirms what the other evidence already indicated.
7. The error of law would not be material, Miss Rackstraw correctly submitted, if the First-tier Tribunal was entitled to find that the sponsor’s income was not enough in any event to maintain her and the appellant adequately. The evidence before the Entry Clearance Officer was certainly not enough to demonstrate adequate maintenance. The bank statements included with the application ran from January to June 2012, and showed few deposits. The account was always in credit, but the credit balance was never more than a few hundred pounds, and in one month the closing balance was as low as £111.88. By contrast, the statements for July to December 2012, which were before Judge Hands, showed more frequent deposits and larger credit balances, exceeding £1,000 by the end of July and rising to £2,826.65 by the end of December. At the date of decision on 25th October 2012, the credit balance was £1,874.71. There were also available to the sponsor savings of nearly £1,500 in an account with Santander, held on trust for her by her mother. The evidence available to the First-tier Tribunal (although not to the ECO when making the decision in October 2012) pointed to there being adequate maintenance for the purposes of the Rules.
8. I conclude therefore that there has been an error of law, requiring the determination of the First-tier Tribunal to be set aside. In re-making the decision on the appeal, I have been given a Supplementary Bundle showing that the sponsor’s pay has gone up considerably, and that the net pay for October and November 2013 (£711.83 and £721.65) is matched by deposits appearing in the sponsor’s bank statements for those months, with the description “received from Bahr”. Of course, it was the lack of any indication that the deposits in the sponsor’s account last year represented cheques “received from Bahr” which caused Judge Hands to doubt whether the sponsor’s income came from employment. On the balance of probabilities, I think it can now be accepted that the sponsor’s income at the time of the decision did come from employment, that the employer was Bahr Academy, and that there would have been enough money to satisfy the requirement of ‘adequate’ maintenance in paragraph 281(v).
9. A considerable time has now passed since the decision under appeal was taken in October 2012, and the Entry Clearance Officer will need to be satisfied that there is still adequate maintenance for the purposes of the rule (which is still paragraph 281) at the present time, taking account of the sponsor’s present circumstances. But as at the date of decision, the appellant did satisfy the requirements of paragraph 281.

DECISION
The appeal is allowed.

Richard McKee
Judge of the Upper Tribunal
19th December 2013