Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004015

First-tier Tribunal No: HU/63652/2023
LH/02683/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 4 February 2025

Before

UPPER TRIBUNAL JUDGE HIRST

Between

VIVEKKUMAR PATEL
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Ms Gilmore, Senior Home Office Presenting Officer

Heard at Field House on 29 January 2025

DECISION AND REASONS

1. The Appellant appeals from the decision of First-tier Tribunal Judge Khan dated 2 May 2024, dismissing his appeal against the refusal of leave to enter as a spouse.
Background to the appeal
2. The Appellant is a national of New Zealand. On 23 July 2023 he applied for entry clearance as the partner of the sponsor, Ms Lennon, who is a British citizen. The Appellant and the sponsor live together in New Zealand.
3. On 1 November 2023 the Respondent refused the application on the basis that the Appellant did not meet the eligibility financial requirement in paragraphs E-ECP 3.1-3.4 of the Immigration Rules.
4. The Appellant’s appeal against that decision came before the First-tier Tribunal on 29 April 2024. The appeal was determined by First-tier Tribunal Judge Khan on the papers.
5. The judge identified the issues as being whether the Appellant met the requirements under paragraph E-ECP 3.1 of Appendix FM to the Immigration Rules and whether there were exceptional circumstances in the Appellant’s case such that the refusal of leave would breach Article 8 ECHR. Only the former issue is relevant to the appeal before the Upper Tribunal.
6. The judge dismissed the appeal. Having set out the requirements of paragraphs E-ECP 3.1 - 3.3, she noted that neither the Appellant nor the sponsor were employed in the UK. She concluded at paragraph 11 that “the Appellant has not provided evidence of necessary employment and income relating to the Sponsor in the UK”. She further noted, at paragraph 14, that although the Appellant had provided evidence of bank statements showing funds over £16,000 for more than six months, he had not provided 6 months’ worth of evidence in relation to a separate ISA savings account, and she therefore concluded that the requirements of paragraph 11 of Appendix FM-SE were not met.
7. Following the decision of the First-tier Tribunal, the Appellant filed further evidence on 24 May 2024 including further bank statements relating to the ISA savings account.
8. The decision of the First-tier Tribunal, whilst dated 2 May 2024, was not sent to the Appellant until 20 June 2024. The Appellant sought permission to appeal to the Upper Tribunal on the basis that the First-tier Tribunal had failed to consider the documents he had supplied as evidence, including evidence of savings in New Zealand, and that the conclusion that he did not meet the financial requirement under the Immigration Rules was wrong on the evidence. Permission to appeal was granted on 16 September 2024 by Upper Tribunal Judge Kamara.
9. The appeal came before me at an error of law hearing on 29 January 2025. The Appellant did not attend the hearing and was not represented; on 27 January 2025 he filed written submissions to the Upper Tribunal in support of his appeal. I considered it was in the interests of justice to proceed in the absence of the Appellant and drew Ms Gilmore’s attention to the Appellant’s written submissions.
Discussion and decision
10. The appeal before me was concerned only with whether the judge erred in finding that the Appellant did not meet the minimum income requirement. As the judge identified, the relevant sections of the Immigration Rules were Paragraphs E-ECP 3.1 - 3.3 of the Immigration Rules and Appendix FM-SE, which sets out the requirements for evidence to support an application under Appendix FM. For completeness I note that the Respondent has issued guidance on the minimum income requirement1, although the judge did not refer to that in the determination.
11. I consider that the judge misdirected herself in two ways. First, she applied the wrong version of E-ECP3.1. The version of paragraph E-ECP3.1 which the judge cited at paragraph 9 of the determination applied only in respect of applications made on or after 11 April 2024. For applications made before that date, which included the Appellant’s application, the minimum income threshold was the previous one of £18,600 and not £29,000 as the judge cited.
12. Further, it is apparent from paragraphs 10-11 of the determination that the judge proceeded on the erroneous basis that the Appellant was required to show evidence of earnings in the UK either for himself or the sponsor in order to meet the financial requirement; that was a material misdirection. The Rules did not require evidence of earnings in the UK for either an applicant or his sponsor, and indeed, as the Respondent’s guidance makes clear, an applicant could rely solely on cash savings provided they met the requisite levels.
13. The judge’s errors are entirely understandable. The relevant Rules and guidance are poorly drafted, labyrinthine and confusing, and the need to apply the transitional provisions (which do not appear in the Rules) to the Applicant’s case added additional complexity. As this was a paper appeal, the judge did not have the benefit of assistance from the parties during the hearing. However, given that the minimum income requirement was central to the Appellant’s appeal under the Immigration Rules, I consider that the judge’s error was material to the outcome of the appeal.
14. I therefore conclude that the determination of the First-tier Tribunal involved material errors of law and I set it aside.
15. Bearing in mind Part 3 of the Practice Directions for the Upper Tribunal, I considered that it was appropriate and in accordance with the overriding objective to proceed to remake the decision at the hearing rather than remitting it for rehearing. There was no objection on behalf of the Respondent.
16. On behalf of the Respondent, Ms Gilmore very fairly recognised that on the evidence before the Upper Tribunal the Appellant met the requirements of the relevant Rules and accepted that the appeal should therefore be allowed.

Notice of Decision

The decision of the First-tier Tribunal involved the making of a material error of law and is set aside.
I remake the decision under s12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and allow the Appellant’s appeal.

L Hirst

Judge of the Upper Tribunal
Immigration and Asylum Chamber

29 January 2025