Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001188

First-tier Tribunal Nos: HU/54611/2024
LH/00406/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

23rd May 2025

Before

UPPER TRIBUNAL JUDGE SHERIDAN

Between

ABDUL MOTIN
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Dawodu, Counsel instructed by SB Solicitors Ltd
For the Respondent: Ms Tariq, Senior Home Office Presenting Officer

Heard at Field House on 9 May 2025

DECISION AND REASONS
1. This decision is given orally following a hearing on 9 May 2025
2. The appellant is a citizen of Bangladesh who applied for entry clearance to join his wife (“the sponsor”) in the UK. The appellant and sponsor married in Bangladesh in May 2023. There is no dispute that the marriage is genuine and subsisting.
3. The respondent refused the application because when the application was made the sponsor’s income was £13,376, which is below the minimum required by the financial eligibility conditions in Appendix FM of the Immigration Rules.
4. The appellant appealed to the First-tier Tribunal where her appeal came before Judge of the First-tier Tribunal Rae-Reeves (“the judge”). In a decision dated 27 January 2025 the judge dismissed the appeal. The appellant now appeals against this decision.
Decision of the First-tier Tribunal
5. The judge found that the sponsor currently earned £21,600 per year which would have exceeded the financial threshold at the time the application was made but was below the threshold applicable had the application been made at the date of the hearing. In paragraph 19 the judge considered the significance of the sponsor’s income at the date of the hearing exceeding the threshold that applied which the application was made. The judge stated:
“19. It is not controversial that the sponsor currently earns more than the threshold at the time of application. However, there is nothing in the rules that allow me to take into account her current income because the rules are clear that it is only income at the time of application that I can consider”.
6. An argument advanced before the judge related to the financial support provided to the sponsor by her adult children. The judge considered the applicability of paragraph 21A of Appendix FM-SE where one of the examples given of where third party support will be accepted is where there is a credible and reliable source of income and funds. The judge did not accept that the support from the sponsor’s children meets this condition. Several reasons are given and the most significant of which is in paragraph 24, where it is stated:
“24. I have no witness statements from the children or details about their family situation, income or circumstances and the judge stated that this lack of information meant that there was not a basis to consider their contributions adequate to satisfy Appendix FM”
7. The judge noted that it was not in dispute that Article 8 was engaged and that the issue in dispute was proportionality. The key findings on proportionality are in paragraphs 27 to 28 where it is stated:
“27. I weigh in the balance the fact that he cannot succeed within the Immigration rules. Ms Begum relies on the fact that there is a single point of refusal in this case and the appellant can comply with the other requirements. Whilst this is true, the income threshold requirement is a vital element and the inability to comply with the rules is a significant factor in the balancing exercise because only exceptional cases will be capable of succeeding outside of the rules. I must treat this failure to comply seriously, because not to do so would render the requirements of the rules to be redundant.
28. I have taken into account the sponsor’s unfortunate history of a difficult marriage but do not find there to be exceptional circumstances. When the couple chose to get married, they would have always known of the need to comply with immigration rules. Refusal of his appeal leaves the appellant and sponsor in status quo in the position that they were before the application. As Ms Humphries submits, refusal would leave them in the same position that they have previously been, which is participating in an online relationship”.
Grounds of Appeal and Submissions
8. The grounds are somewhat discursive in the way they are drafted and I am grateful to Ms Tariq who distilled them into the following three distinct submissions:
(a) The judge erred by considering the appeal through the framework of private life rather than family life.
(b) There were flaws in the assessment of financial support from the sponsor’s children.
(c) Proportionality under article 8 ECHR was not properly considered.
9. The third submission – concerning the judge’s proportionality assessment - was the focus of Mr Dawodu’s oral arguments. He submitted that the brief proportionality assessment, which is set out in paragraphs 27 and 28 of the decision, fails to engage with important evidence about the impact on the sponsor of effectively being in the position of having to move to Bangladesh in order for this relationship to continue. He noted the significant impediments to her leaving the UK including the length of her residence in the UK, her profession and the presence of her children; and maintained that it cannot be right that the only way that her relationship with the appellant can continue is for her to leave her home in the UK.
Analysis
10. The first issue concerns the contention that the judge considered private rather than family life. I must confess to finding this argument difficult to follow. I understand that there is a reference in paragraph 13 of the decision to private rather than family life; but it is plain that this is a decision about the appellant and sponsor’s family life. The appellant is located in Bangladesh and quite properly there is no consideration of his private life. The entire decision is concerned with the Immigration Rules relating to family life and with the effect on the family life enjoyed by the appellant and sponsor of the appellant being denied entry to the UK. This is a case about family life and the judge treated it as such. I therefore am not persuaded by the first submission in the grounds.
11. The second argument concerns the approach taken by the judge to the financial support provided to the sponsor by her adult children. The relevance of this, as identified by the judge in paragraph 15 of the decision, is that under paragraph 21A of Appendix FM-SE there is scope when assessing whether the financial eligibility condition in Appendix FM is met for consideration to be given to credible and reliable sources of income or funds from third parties. The difficulty for the appellant is that the evidence before the First-tier Tribunal relating to this was limited. As pointed out by the judge in paragraph 24 of the decision, there were no witness statements from the children or details about their family situation, income or circumstances. In these circumstances it was plainly open to the judge to find there was insufficient evidence to establish a credible and reliable source of third party funds for the purposes of paragraph 21A.
12. The third submission in the grounds concerns the judge’s consideration of proportionality under Article 8. Mr Dawodu submitted that the judge’s consideration of this was not exhaustive or complete. He highlighted the strength of the sponsor’s connection to the UK and the impediments to her relocating to Bangladesh; and maintained that the proportionality assessment was flawed because it did not take into account that it would be unduly harsh to expect the sponsor to leave the UK.
13. The difficulty with this argument is that the judge did not find that denying entry to the appellant would be proportionate because the relationship could continue in Bangladesh. Rather, the judge found that it was not disproportionate for the relationship to continue in the way that it always has been; that is, with the sponsor and appellant living in different countries. Given that the judge found that the continuation of the status quo (i.e. the physical separation of the appellant and sponsor) was not a disproportionate interference with their family life, there was no need to set out, or make findings in respect of, the impediments to the sponsor relocating to Bangladesh.
14. Moreover, the judge’s conclusion on proportionality was plainly one that was open to him. This is a case where, on one side of the Article 8 proportionality balance, weighing against the appellant and sponsor, is the public interest in effective immigration controls. The judge was required to take this into consideration (see section 117B(1) of the Nationality, Immigration and Asylum Act 2002) and entitled to give this factor significant weight given that the Immigration Rules were not met. On the other side of the scales is the marriage between the appellant and sponsor. As the marriage is genuine and subsisting it clearly warrants being given some weight. However, it was entered into at a time when the Immigration Rules could not be satisfied (because the sponsor’s income was insufficient) and the appellant and sponsor, for the entirety of their relationship, have been residing in different countries. In these circumstances, it was open to the judge to attach greater weight to the public interest in immigration controls than to the relationship, such that it would be proportionate to refuse the appellant entry even if that meant the relationship could not continue because it would not be possible for the sponsor to relocate to Bangladesh.
Notice of Decision
15. The decision of the First-tier Tribunal did not involve the making of an error of law and stands.

D. Sheridan

Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 May 2025