Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001215

First-tier Tribunal Nos: HU/50639/2024
LP/05882/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of September 2025

Before

UPPER TRIBUNAL JUDGE KEITH
DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

BURIM BRATI
(NO ANONYMITY ORDER MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr J Gajjar, Counsel, instructed by SMA Solicitors
For the Respondent: Ms R Tariq, Senior Home Office Presenting Officer

Heard at Field House on 6th August 2025

DECISION AND REASONS
1. These written reasons reflect the full oral reasons which were given to the parties at the end of the hearing.
Background
2. This is a decision on the appellant’s human rights appeal, following the “error of law” hearing and judgment of Deputy Upper Tribunal Judge Burnett, issued on 26th June 2025, in which he had found that an earlier judge of the First-tier Tribunal (‘FtT’) had erred in law. He did so, preserving specific findings of the FtT, namely that the appellant met the suitability requirements of the Immigration Rules. Judge Burnett’s judgment is annexed to these reasons, for completeness.
3. The context of the appeal is that the appellant, an Albanian national, had previously remained in the UK unlawfully but had voluntarily departed and then applied to rejoin his sponsoring spouse in the UK. No issue is taken as to his suitability, notwithstanding his immigration history. The sole issue taken by the respondent in refusing the appellant’s leave to enter was whether, at the date of the application, the appellant had met the requirements of Appendix FM and Appendix FM-SE in relation to the income requirements of the Immigration Rules. That had been the subject of some lack of clarity before the original FtT.
The hearing
4. The parties’ representatives helped us at the beginning of the hearing in clarifying the exact scope of the dispute.
5. The representatives agreed that although the appellant’s appeal was by reference to his human rights, if the appellant had met the Immigration Rules at the date of his application, then that would be dispositive of a human rights appeal, by reference to the well-known authority of TZ (Pakistan) and Or v SSHD [2018] EWCA Civ 1109 at §34. If, however, the appellant did not meet the strict evidential requirements of the Immigration Rules, nevertheless the fact of his sponsoring spouse having met the income threshold might be relevant to the question of proportionality in the human rights appeal.
6. An additional issue arose during our discussions, namely that the caseworker guidance which was relevant at the time of the application appeared to be broader than the Immigration Rules. Whilst that does not, of course, alter the Rules, that would be relevant to proportionality.
7. We also considered a late application by Mr Gajjar (of whom we make no personal criticism) to adduce additional evidence, in breach of directions given by Judge Burnett as to the timing of any new evidence. Nevertheless, Ms Tariq did not object to the additional evidence being adduced, it was relevant to our decision, and Ms Tariq had an opportunity to take instructions on both the documents and also the caseworker guidance, to which we turn later in these reasons. We therefore granted the application to adduce the additional evidence.
8. The appellant says that with his application, the sponsor had provided her tax return or ’SA100’. She had also provided a statement of account or ‘SA300’ or ‘SA302’. It was not labelled as such, because of the way that tax returns are now completed online, as opposed to them previously being on a physical form. The additional evidence which Mr Gajjar sought to adduce was a letter from the sponsor’s accountant confirming that fact, namely that having submitted a tax return on 18th August 2023, the sponsor had received an SA302, included with the entry clearance application, which may differ from the format of previous printed SA302s.
The respondent’s position
9. We canvassed with Ms Tariq how the respondent says that the entry clearance application is deficient. She began by suggesting that the bank statements were not complete (paragraph (f) of the refusal letter) but then indicated that she no longer pursued this point. She had intended to cross-examine the sponsor, who attended the hearing before us and was tendered to give evidence but then indicated that she no longer sought to cross-examine her and that the sponsor’s evidence was not contested.
10. Ms Tariq confirmed that the respondent accepted that the appellant had provided the sponsor’s tax return with the application. The sole issue in terms of compliance with the Immigration Rules was whether the appellant had provided a statement of account or SA300/302, as referred to at paragraph b(ii) of the refusal letter. Whilst Ms Tariq was careful not to make a formal concession, she indicated that, particularly in light of caseworker guidance to which we refer in a moment, she had nothing to add to the refusal letter and therefore without discourtesy to her, we refer to Mr Gajjar’s submissions alone.
The appellant’s position
11. The appellant’s case is simple.
12. First, the document before us, and which was filed with the application, is an SA302, in the only available online format, because physical SA302 forms are no longer issued. Ms Tariq did not contest this. The appellant therefore had met the Immigration Rules at the date of his application.
13. In addition, or in the alternative, while paragraphs 7(b)(i) and (ii) of Appendix FM-SE require both the annual self-assessment tax return and a statement of account, the guidance for decision makers that was in force at the time posed those two in the alternative. Specifically, at page [59] of the case worker guidance, it stated:
“The following documents for the last full financial year or for the last 2 such years (where those documents show the necessary level of gross profit as an average of those 2 years:
• annual self-assessment tax return to HMRC (a copy or print-out); or [our emphasis] Statement of Account (SA300 or SA302).”
14. Ms Tariq did not contest this. While this did not answer whether the appellant met the Immigration Rules, the appellant met the caseworker guidance, and this was a weighty consideration for the proportionality of refusal of the appellant’s application for entry clearance.
Findings and conclusions
15. The new evidence from the sponsor’s accountant confirms the nature of the evidence before the respondent in the appellant’s application. Ms Tariq has not challenged this. The sole issue was whether the appellant had provided the sponsor’s statement of account or SA300 or SA302. The appellant’s unchallenged evidence as confirmed by the accountant and which is before us is that it had been.
16. We therefore find that the appellant’s application met the requirements of Appendices FM and FM-SE. Consistent with the authority of TZ (Pakistan), that is dispositive of the appellant’s appeal by reference to his human rights, noting the public interest in the maintenance of effective immigration controls (Section 117B(1) of the Nationality, Immigration and Asylum Act 2002).
17. In the alternative, even our findings were wrong, and the format of the evidence did not constitute an SA300 or SA302, we are satisfied that a refusal of leave to enter was disproportionate. (There is no dispute that the appellant and sponsor have a family life and that the refusal decision engages Article 8 ECHR). On the one hand, we bear in mind the weight to be placed on the public interest in effective immigration controls, and there is no ‘near-miss principle’ for Appendix FM-SE. On the other hand, first we are satisfied that the sponsor did meet the income threshold (that was her uncontested evidence). Second, the respondent’s own caseworker guidance confirmed that the sources of evidence, namely a self-assessment tax return or a statement of account were in the alternative. That cannot broaden the scope of the Immigration Rules, designed to prevent, for example, somebody seeking to circumvent the income requirements by filing multiple tax returns. The Rules also envisage income in a single tax year or averaged over two years. It is in that context that the case worker guidance, which allows evidence in the alternative, needs to be viewed, i.e.. because both sets of evidence may not be available. In this case, the sponsor was not relying on an average, but a single tax year, for which she had already filed a tax return.
18. In this context, even if the evidence had not met the requirement for the format of an SA300 or SA302, it was adduced in the context of a tax return where the level of income was uncontested and where the format of online statements of accounts has changed. The casework guidance is consistent with this. In the absence of any other suitability or eligibility issues, which are also relevant to Section 117B of the 2002 Act, we are satisfied that the refusal of leave to remain would also have been disproportionate, even if the appellant had not met the requirements of Appendix FM-SE, on the narrow issue of the sponsor’s statement of account.
Notice of Decision
19. The appellant’s appeal succeeds.
20. The respondent’s decision to refuse the appellant’s application for entry clearance is not upheld.

J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15th August 2025

ANNEX –ERROR OF LAW DECISION

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-0001215

First-tier Tribunal No: HU/50639/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

DEPUTY UPPER TRIBUNAL JUDGE BURNETT

Between

BURIM BRATI
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Gajjar, counsel instructed by SMA Solicitors
For the Respondent: Ms Kerr, Senior presenting Officer.

Heard at Field House on 9 May 2025

DECISION AND REASONS
1. This is the appellant’s appeal against the decision of the First-tier Tribunal Judge Easterman (‘the judge’), dismissing the appellant’s appeal against the decision of the entry clearance officer refusing leave to enter the United Kingdom.
Background
2. The appellant is a citizen of Albania born on 3 February 1993. On 18 October 2023 he applied for leave to enter the United Kingdom as a spouse.
3. The appellant had entered the UK illegally in June 2019. The appellant made a number of applications from within the UK which were refused. In June 2021 he applied under the EU settlement scheme. This was refused in May 2022. The appellant then left the UK voluntarily in 2023.
4. The entry clearance officer (ECO) was satisfied that the appellant met the relationship requirements and the English language requirements of the rules. The ECO was not satisfied that the appellant met the financial requirements of the rules. The ECO also concluded that the appellant had contrived in a significant way to frustrate the intentions of the immigrations rules.
Judge’s Decision
5. The judge heard evidence from the appellant’s spouse. The judge concluded that the appellant should not be barred from succeeding under the rules because of his past behaviour [51].
6. The judge concluded that the appellant had not met the strict requirements under appendix FM-SE regarding the financial requirements [41]. The judge also stated that the sponsor had at least declared for tax purposes that she was earning £18,600. The Judge stated in [41] that the amount was £8,600 but it was agreed that this was a mistake. In light of the findings the judge considered the proportionality of the respondent’s decision [53] onwards. At [53] the judge stated that on the ‘face of it’ the appellant appeared to have the required support he required. The judge concluded that the decision of the respondent was proportionate [58] and [61].
7. The judge repeated that if the sponsor was able to clearly show that the requirements of Appendix FM-SE were met, the appellant should no longer be barred from the UK because of his past behaviour [60].
Grounds of appeal.
8. The appellant appealed against the decision on two grounds. The first that the judge failed to give adequate reasons for the conclusion that the appellant did not meet the requirements of Appendix FM-SE.
9. The second ground of appeal argued that the judge was in error and had failed to make a lawful article 8 assessment in light of the conclusion that the appellant appeared to meet the financial threshold but not the formal requirements of Appendix FM-SE. Allied to this it was stated that the judge had erred in taking into account the suitability requirements in considering the balancing exercise, given he had concluded that this should not be a bar to the appellant’s entry into the UK.
Permission to appeal
10. Permission to appeal was granted by First-tier Tribunal Judge Chowdhury. Judge Chowdhury considered it was arguable that the judge had not provided sufficient reasons regarding the financial requirements of Appendix FM-SE. Judge Chowdhury also considered it arguable that in light of the judge’s apparent acceptance that the appellant met the financial support required, the assessment of proportionality was flawed. It was not explained why the formal requirement of the rules should tip the proportionality assessment against the appellant.
11. The grant of permission was not limited and permission was granted on all grounds.
Submissions
12. Mr Gajjar relied upon the grounds of appeal and his skeleton argument. He provided a page reference to the bundle for each of the requirements in Appendix FM-SE and where the documents could be found in the bundle. The judge had not gone through each document and made a finding whether the documents met the requirements and which, if any, documents were still missing. The reasoning was insufficient and inadequate.
13. Mr Gajjar submitted that the judge had accepted that the appellant had the required financial support but had not lawfully explained why the decision of the respondent was proportionate.
14. The positive finding that the appellant’s past behaviour should not be bar created a tension with the adverse weight given to the past behaviour by the judge. The judge made a finding [55] the appellant had the required support but did not ‘tick every box’ of Appendix FM-SE. There was some residual public interest as the appellant did not meet the formal requirements, but Parliament could not have intended that where the substance was met but not the form, the person would not be granted entry clearance. The language used was a conclusion on the balance of probabilities that the appellant had the required financial support.
15. Ms Kerr relied upon the rule 24 response. Ms Kerr stated that the finding at [41] and [51] was adequate. The judge had concluded that the appellant had not met strict requirements of the rules. The appellant had not provided unaudited accounts and there were inconsistent amounts on the HMRC documents. The judge’s finding was adequate. The appellant was asking for reasons for reasons.
16. The judge had not made a finding accepting the appellant met the financial requirements. The judge balanced the factors on both sides and made an assessment. The decision was adequate and there were sufficient reasons.
Analysis and Conclusions
17. Relatively recent authority (Ullah v SSHD [2024]EWCA Civ 201, Yalcin v SSHD [2024] EWCA Civ 74, and Chowdhury v SSHD [2025] EWCA Civ 36) has emphasised that the Upper Tribunal should not rush to find an error of law simply because they would have expressed themselves differently from the First-Tier Tribunal, that the Upper Tribunal should be slow to infer that a point had not been taken into account even if not expressly mentioned, and that judicial restraint should be exercised even though not every step in the reasoning was fully set out, as the issues might be set out by inference. I have borne those principles in mind.
18. It is well-established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact-finding tribunal. The principles and cautious approach to be applied by an appellate court to first instance findings of fact are well established and are set out in Volpi v Volpi [2022] EWCA Civ 464 at [2]. I have kept in mind the role of the First-tier Tribunal as an expert Tribunal and bear in mind the principles set out in Volpi and articulated by the Supreme Court in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, 1 WLR 3784 at [72] including:
“(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out - see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope.”
19. I start by a consideration of the financial requirements of the rules. The ECO’s decision sets out the appellant’s failure to meet the strict requirements of Appendix FM-SE. Mr Gajjar helpfully set out the page references of the bundle where the documents which it is said, met the requirements. These documents had all been before the judge.
20. The refusal of entry clearance accepted that the sponsor had provided personal bank statements and annual audited accounts. The missing documents required under appendix FM-SE set out in the refusal were said to be:

i) Evidence of the amount of tax payable, paid and unpaid for the last full financial year (page 68 PDF (number 63 on the page)
ii) Annual self assessment tax return to HMRC (page 218 to 234)
iii) Statement of account (SA300 or SA 302) (page 39)
iv) Proof of registration with HMRC as self employed, if available (not mandatory)
v) Each partner’s unique Tax reference number (UTR) and/or the UTR if the business (page 39)
vi) Evidence of ongoing self employment through evidence of payment of Class 2 National Insurance contributions (page 39)
21. I have set out the page references as provided by Mr Gajjar as to where the documents appeared in the bundle of documents. The judge acknowledged that there were strict requirements in the rules. The judge provides an omnibus conclusion that the appellant does not meet the strict requirements of Appendix FM-SE [41] and [51]. The judge did not engage with each document and explain whether it met the requirements of Appendix FM-SE. Mr Gajjar stated that the appellant’s position was that the documents which had been before the judge, did meet the requirements. I have set out above where in the bundle it is said that each document was provided. There is no analysis of each of these documents in the judge’s decision. The judge has not explained if he was satisfied that these met Appendix FM-SE. This was important so the appellant knew precisely, which, if any documents did not meet the strict requirements of FM-SE. This was also important in respect of a consideration of proportionality, if the judge concluded that the appellant did not meet the strict requirements.
22. I questioned Mr Gajjar regarding the requirement to produce the SA300 or SA302. This is referred to as the tax calculation. The document at page 39 of the bundle does not state it is a SA300 or SA302. However it appears to be the print out from the digital software which is to be used for the submission of tax returns. I am aware that HMRC has provided guidance about the production of the SA302 from such software for mortgage applications, but the judge did not analyse this document and so there are no reasons provided as to whether it is a SA302 or not and whether it met the requirement in the rule.
23. In respect of the evidence of ongoing self-employment through the payment of class 2 national insurance contributions, it is stated that most people pay this through the self-assessment process, (see Government website -self-employed national insurance rates) which in this case the appellant provided evidence of a payment to HMRC in her bank account. Again there was no analysis of this document and the requirement in the rules by the judge.
24. I also note that the respondent had raised that there were mistakes within the HMRC self-assessment document. The respondent had argued that this meant that the appellant had not shown that the sponsor met the required financial threshold. There is no analysis in the decision as to the reliability of the figures and the weight to be attached to the document. This was an important issue to resolve.
25. I have come to the conclusion that the judge’s reasons are not adequate in respect of the financial requirements of appendix FM-SE. I am satisfied that there is a material error of law.
26. Although I heard argument in respect of the second ground of appeal, given my finding on ground 1, the proportionality assessment will need to be re-assessed once findings have been made regarding the documentary requirements of Appendix FM-SE and whether the sponsor does earn above the required threshold. In the circumstances, due to the material error established in ground 1, I conclude that there is a material error of law in respect of the proportionality assessment.
27. The judge’s finding that the appellant met the suitability requirements and that the appellant should not be barred from succeeding under the rules if he met the financial requirements, is preserved. Ms Nolan did not argue that that issue should be heard afresh.
28. The only issue that requires determination afresh is in respect of the financial requirements of Appendix FM-SE and article 8. Applying paragraph 7.2 of the Practice Statements, I satisfied that it is appropriate that this case should be retained in the Upper Tribunal and remade.
29. Both parties may adduce additional evidence, provided copies are filed with the Upper Tribunal and served on the other party no less than 21 days before the resumed hearing. The appellant’s solicitor shall file a composite bundle of documents on the CE file system at least 7 days prior to the resumed hearing. If the sponsor will give oral evidence at the resumed hearing and requires an interpreter, the appellant’s solicitor must make the appropriate request to the Upper Tribunal no later than 21 days before the resumed hearing.
Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error of law.
The appeal is allowed and the decision of the First-tier Tribunal is set aside. The finding set out at [27] above is preserved. The decision will be remade in the Upper Tribunal.

Directions
Set out above at [29].

Iain Burnett

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
20 June 2025