Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005561

First-tier Tribunal No: PA/61316/2023
LP/09399/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 20 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE WILDING

Between

SKRM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE
HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Slatter, Counsel, instructed by Lawmatic Solicitors
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer

Heard at Field House on 3 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The appellant appeals against the decision of First-tier Tribunal Judge Lloyd-Jones (‘the Judge’) who dismissed her protection claim on both asylum and human rights grounds on 14 October 2024. Permission was granted by First-tier Judge Mulready on limited grounds on 4 December 2024.

Background

2. Given the limited grant of permission I set out only the material background circumstances.

3. The appellant is a national of Bangladesh, she is 29 years old. The appellant arrived in the UK on 29 October 2020 with a valid student visa valid to 5 December 2022. She claimed asylum on 27 April 2022 on the basis of being a victim of domestic violence.

4. The appellant met her husband, RS, in the UK, having undergone a traditional Islamic marriage ceremony on 26 September 2022, they married in the UK on 19 August 2024. As part of her appeal she relied on that relationship, and submitted she met the provisions of appendix FM given their joint income.

5. Her appeal was heard by the Judge on 11 October 2024. In the decision, the Judge dismissed the appeal under appendix FM, on the basis that:

25. The Appellant meets the relationship and English language requirements of Appendix FM. The Appellant has submitted some evidence in relation to pay. A payslip for her partner, who has not given evidence, was provided dated 19/07/2024. This shows that he had earned £6193.40 in the year to date. A letter is also provided that shows that the Appellant has been employed for over 3 years. A salary is not given, just an hourly rate. An employment letter is given for the Appellant demonstrating that she is said to be on £12000 per year. Bank accounts and payslips and a contract are also provided in the supplementary bundle. When considering E-LTRP 3.2, I find the Eligibility financial requirements are not met when looking at the requirement of saving. I therefore must consider if EX.1 applies.

6. The Judge went on to find that there were no insurmountable obstacles to family life continuing outside the UK. The appellant was dissatisfied and appealed, submitting that the Judge had materially erred in that:

6. As part of the Article 8 grounds, the FTTJ has considered whether the appellant meets requirements of Appendix FM. While the respondent conceded on the relationship requirement and the English language requirements being met, the FTTJ failed to correctly assess financial requirements. The FTTJ in para 25 of Determination only referred to one payslip dated 19/07/2024 to calculate the income of appellant’s spouse where the more payslips (Covering period between January 2024 and August 2024) of the sponsor were enclosed in the Supplementary bundle between page 35 and 65. In addition to that, the sponsor has provided his bank statements in Supplementary evidence bundle in the pages between 66 and 121 for the same period. While the FTTJ acknowledged that the bank statements, contracts and payslips are also provided the Judge however completely ignored/ missed to consider these [sic] evidence in assessing financial requirement.

7. In addition to above, the sponsor provided an updated job employment letter which clearly shows that he is employed full-time and his hourly rate is £11.44, which is equivalent to annual gross salary of £22308.00. Therefore, it is the fact that the Judge has clearly miscalculated the income of the sponsor.

8. Since the Judge accepted that the appellant’s job letter shows her annual income of £12000, it is clear that the appellant meets the financial requirements above £29000, which the Judge did not allegedly accept. Therefore, the Judge erred in law.

7. Permission was granted by First-tier Tribunal Judge Mulready on the above ground only.

The hearing

8. I heard submissions from both representatives at the hearing, it is sufficient to say that Ms Cunha accepted that the Judge had materially erred as claimed. There was some discussion as to what the best approach was in terms of remaking.

9. I heard submissions from both, Mr Slatter submitted that technically the employers letter may not meet the requirements of appendix FM-SE, there was however no need to make a valid application given the provisions of GEN 1.9(a) of the immigration rules. Given the evidence shows the financial requirements clearly being met, applying the ratio from MM (Lebanon) & Ors, R ( on the applications of) v Secretary of State and another [2017] UKSC 10 at paragraph 76, there was sufficient evidence to show that the appellant’s removal would be disproportionate.

10. The substantive requirements of the rules were met at the date of the hearing, and that was a very weighty consideration. The public interest is in the meeting of the immigration rules, and, he submitted, that the rules were met. There was nothing else left to show for the purposes of the immigration rules.

11. Ms Cunha’s submissions were that there was nothing stopped the appellant returning and applying to re-enter, given that the relationship was formed at a time when her status was precarious. There is not good reason why they will not be able to continue their relationship in Bangladesh. The public interest does require the appeal to be dismissed as there are no unjustifiably harsh consequences, even if temporary, on the appellant being removed. Ms Cunha accepted the evidence now before the Tribunal would meet the financial requirements, however that was not determinative of the matter.

12. There was some discussion at the hearing about the difference between GEN 3.1 and 3.2 and the difference between the two provisions. In particular that GEN 3.1 is predicated on there being exceptional circumstances which “could” render refusal a breach of Article 8, and 3.2 that it “would” render refusal a breach.

13. I outlined that if I considered it made a material difference to my decision then I would not remake the decision, but give the parties an opportunity to make submissions on it. However I was not clear whether it would in fact make any difference. As is clear from my decision below, in this case I consider that whilst there may be a difference between the two, I am satisfied that whichever test was applied then the answer would remain the same.

Decision and reasons

14. Given Ms Cunha’s concession that the Judge materially erred in law, I find, in essence by consent, that the decision on Article 8 grounds, specifically as to the meeting of the immigration rules, is to be set aside.

15. The brief summary as to why the Judge erred is that the Judge considered that the appellant failed under the immigration rules because the Judge:

a. Failed to take into account all of the evidence before them as to the appellant and her husband’s income.
b. In addition the Judge appeared to consider that the appellant had to show income and savings to meet the rules, that is not the requirements of the rules and as such the Judge materially erred in their conclusions on whether the rules could be met.

16. In remaking I accept Ms Cunha’s concession that the substantive requirements of the rules were met as at the date of the hearing before me. This concession in my judgment was properly made, the evidence before me shows the appellant’s husband earns approximately £22,308 per year, the appellant earns £12,000. That is a combined income of £34,308 per annum.

17. The requirements of the immigration rules are:

E-ECP.3.1. The applicant must provide specified evidence, from the sources listed in paragraph E-ECP.3.2., of:

(a) a specified gross annual income of at least £29,000

(b) specified savings of:

(i) £16,000; and
(ii) additional savings of an amount equivalent to 2.5 times the amount which is the difference between the gross annual income from the sources listed in paragraph E-ECP.3.2.(a)- (d) and the total amount required under paragraph E-ECP.3.1.(a); or

(c) the requirements in paragraph E-ECP.3.3. being met.

E-ECP.3.2. When determining whether the financial requirement in paragraph E-ECP. 3.1. is met only the following sources will be taken into account-

(a) income of the partner from specified employment or self-employment, which, in respect of a partner returning to the UK with the applicant, can include specified employment or self-employment overseas and in the UK;

(b) specified pension income of the applicant and partner;

(c) any specified maternity allowance or bereavement benefit received by the partner in the UK or any specified payment relating to service in HM Forces received by the applicant or partner;

(d) other specified income of the applicant and partner; and

(e) specified savings of the applicant and partner.

18. Their combined income it greater than £29,000, that is by combining their income from employment. They are both lawfully employed, the appellant as her leave is extended by virtue of s3C of the Immigration Act 1971. Her husband because he is a British Citizen.

19. The appellant meets the provision of E-ECP 3.1(a) because their annual income is greater than £29,000. That is by relying on a combination of E-ECP 3.2(a) and (d). They do not rely on savings.

20. I agree with Mr Slatter’s submission that the appellant does not need to make an application to rely on this provision by virtue of GEN 1.9(a), and that she can therefore rely on appendix FM even though the relationship with her partner was not a qualifying one when she claimed asylum. This is consistent with the respondent consenting to the Article 8 claim being considered by the Tribunal.

21. I find that the appellant clearly satisfies the substantive requirement of the rules, the only basis that she does not meet the evidential requirements is that the employers letter does not meet the requirements of Appendix FM-SE. I whoever can see that the appellant is paid the £1000 a month that she claims by virtue of the payslips and associated payments going into her bank account.

22. I am mindful of paragraph 76 of MM (Lebanon):

76. As Lord Reed explains (Agyarko, para 47), this approach is consistent with the margin of appreciation permitted by the Strasbourg court on an “intensely political” issue, such as immigration control. However, this important principle should not be taken too far. Not everything in the rules need be treated as high policy or peculiarly within the province of the Secretary of State, nor as necessarily entitled to the same weight. The tribunal is entitled to see a difference in principle between the underlying public interest considerations, as set by the Secretary of State with the approval of Parliament, and the working out of that policy through the detailed machinery of the rules and its application to individual cases. The former naturally include issues such as the seriousness of levels of offending sufficient to require deportation in the public interest (Hesham Ali, para 46). Similar considerations would apply to rules reflecting the Secretary of State’s assessment of levels of income required to avoid a burden on public resources, informed as it is by the specialist expertise of the Migration Advisory Committee. By contrast rules as to the quality of evidence necessary to satisfy that test in a particular case are, as the committee acknowledged, matters of practicality rather than principle; and as such matters on which the tribunal may more readily draw on its own experience and expertise.

23. In my judgment therefore the public interest as to someone’s ability to earn a specific amount of money as set by the immigration rules is satisfied in this case, the appellant’s inability to meet the provisions of appendix FM-SE is purely down to a deficient employers letter.

24. Taking this into account I find that the substantive requirements of the rules are met, even though the evidential requirements are not. This is a weighty consideration, and outweighs the public interest militating her removal to return and make any entry clearance application, which in essence was Ms Cunha’s submission.

25. Of the s117B considerations, she is, alongside her husband, economically independent. She can speak English. Both of which are neutral considerations. Their family life formed at a time when her position in the UK was precarious, but she has never been in the UK unlawfully, she made her protection claim, leading to this appeal, whilst she had extant leave. As such the ‘little’ weight provision in relation to her family life of s117B(4) does not apply. In relation to (5) that only bites in relation to a private life argument.

26. As such as I find she meets the financial requirements, albeit not with the specific evidence of appendix FM-SE I find that the appellant’s removal would be disproportionate.

Notice of Decision

The decision of the First-tier Tribunal is set aside for falling into legal error.

I remake the decision allowing the appeal on Article 8 grounds.

Judge T.S. Wilding

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Date: 14th March 2025