Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001611

First-tier Tribunal No: EU/52054/2024
LE/00122/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

25th June 2025

Before

UPPER TRIBUNAL JUDGE KEBEDE
DEPUTY UPPER TRIBUNAL JUDGE HOWARTH

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ABIOLA OLUFUNKE AJIBOLA
Respondent

Representation:
For the Appellant: Ms N Kerr, Senior Home Office Presenting Officer
For the Respondent: Mr T Onokwu, Solicitor, Arndale Solicitors

Heard at Field House on 5 June 2025

DECISION AND REASONS
Introduction
1. This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal which allowed the appeal of Abiola Olufunke Ajibola against the respondent’s decision to refuse her application for entry clearance to the UK under Appendix FM of the Immigration Rules.
2. For the purposes of this decision, we shall hereinafter refer to the Secretary of State as the respondent and Abiola Olufunke Ajibola as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.
Background
3. The appellant is a Nigerian citizen. She lives in Nigeria with her husband, to whom she has been married for over sixteen years and their two children, aged 13 years and 16 years, all of whom are British citizens. She made an application for entry clearance on 30 December 2023, under appendix FM to the Immigration Rules because the family want to relocate from Nigeria to the United Kingdom.
4. The respondent refused the appellant’s application because she did not meet all of the eligibility requirements under Appendix FM. Specifically, she had failed to provide the specified evidence required for the financial requirements under EC-P 3.1 to 3.4 of Appendix FM. The respondent also considered whether paragraphs GEN 3.1 and GEN 3.2 of Appendix FM were applicable, which require an applicant to demonstrate that there are “exceptional circumstances” which mean that a refusal would breach Article 8 of the ECHR because it would result in “unjustifiably harsh consequences” for the appellant or her family. The respondent considered the best interests of the children as a primary consideration but found that the appellant had not provided any information or evidence to show such “exceptional circumstances”. The respondent also concluded that there were no compassionate factors that would warrant a grant of entry clearance outside the Immigration Rules.
First-tier Tribunal Decision
5. The appellant appealed against that decision and her appeal came before the First-tier Tribunal on 17 January 2025. The judge conducted the hearing on the papers and allowed the appeal. The judge found that evidence had been provided which demonstrated that “at the date of the application” the appellant had funds in her and her husband's bank accounts which, combined with evidence which showed that “at the date of the application” 50% of the value of the appellant’s husbands pension could be drawn down, amounted to more than the required sum of £62,500, and as such that she met the Immigration Rules [11]. In conducting the Article 8 balancing exercise the judge stated that she gave significant weight to the appellants ability to fulfil the Immigration Rules and found that the balance fell in favour of the appellant and that it would be disproportionate not to allow the appellant entry clearance [12- 13]. She accordingly allowed the appeal.
Grounds of Appeal
6. The Secretary of State sought permission to appeal to the Upper Tribunal on the grounds that the judge had made a material misdirection in law in finding that the financial requirements had been met because the appellant had to demonstrate that they had the required funds “throughout the period of 6 months prior to the date of the application”; which had been noted by the judge at [11] but not applied by the judge, who instead concluded that the appellant had the relevant funds only “at the date of the application”. The Secretary of State argued that this error was material because a proper assessment of the bank accounts demonstrated that the balance fluctuated below the required amount during the six month period, such that the appellant could not satisfy the financial requirements under the Immigration Rules.
7. The Secretary of State's grounds further asserted that this error infected the Article 8 proportionality balancing exercise because the judge attached substantial weight to the fact that the immigration rules had been satisfied when they had not [13].
8. Permission was granted by the First-tier Tribunal on 8 April 2025 on the basis that the judge may have materially erred regarding the length of time specified funds have to be available to an applicant prior to the application. The appellant did not serve a Rule 24 response.
The Hearing
9. The matter then came before us for a hearing to determine whether or not the judge had erred in law in her decision. We had not been given advanced notice that the appellant would be represented at the hearing. Mr Onokwu, who appeared on behalf of the appellant, indicated that he had only recently been instructed. He provided two skeleton arguments but indicated that he relied only on his longer skeleton and not his summary skeleton. We took some time to read the skeleton argument and Ms Kerr was also provided with the time she required. Both parties then made submissions before us.
10. In relation to Ground 1, Ms Kerr submitted that the judge had found the financial requirements had been met through cash savings but failed to observe that the £62,500 had to be held for the full six-month period prior to the date of the application. The evidential requirements were clear but the judge erroneously focused on the date of the application, and did not make findings about whether the required amount was held throughout the six-month period as required. For example, page 47 of the appeal bundle showed that the balance fluctuated below the threshold. Additionally, the respondents review had identified that there were missing statements for the account ending 180 for both September and November 2004 and those missing statements had not been provided to date. This was not addressed by the judge who just focused on the amount at the date of the application. In failing to follow a mandatory requirement under the rules the judge made a material error of law (TZ (Pakistan) and PG (India) v Secretary of State for the Home Department [2018] EWCA Civ 1109 - appendixes are lawful, and Mahad (Ethiopia) v Entry Clearance Officer [2009] UK SC16 - immigration rules to be applied according to their plain meaning). The judge had failed to apply the requirements. Ms Kerr submitted that the Ground 2 error flowed directly because of the Ground 1 error. Compliance with the Immigration Rules is a highly relevant factor in conducting the proportionality exercise. In attaching substantial weight to the appellant’s ability to comply with the Immigration Rules, the judge had erred and the judge didn't identify any exceptional circumstances that would warrant allowing the appeal. Ms Kerr invited us to allow the appeal and to re-make the decision at the hearing.
11. Mr Onokwu acknowledged both in his skeleton and during his oral submissions that there was a “dip” in the appellant and sponsor’s finances, which meant that they had not met the threshold of £62,500 for a period of six months prior to the appellant’s application for entry clearance. Mr Onokwu also referred to shares that were valued at $4,034.04 equivalent to £3,118.86, but likewise acknowledged that the shares were not adequate to make up for the “dip” in finances. As such, Mr Onokwu accepted that the appellant could not meet the financial requirements under the Immigration Rules and conceded that there had been an error of law, but he submitted that the appeal should be allowed under Article 8 on the basis that it was a “near miss”. In the alternative, Mr Onokwu submitted that the appeal should have been allowed under Article 8 GEN 3.1 and GEN 3.2 of Appendix FM. Although the the family lived in Nigeria, the appellant and the sponsor had been married for 16 years, lived together for 17 years, and all of the family, bar the appellant, were British citizens, which meant that they could come to the UK at any time but that the appellant would be left behind. Mr Onokwu submitted that these were compelling circumstances, which the judge should have considered. Further, the best interests of the children should also be considered, which in his submission, favoured the grant of entry clearance.
12. In view of Mr Onokwu’s submissions, we asked him if he agreed that we should allow the appeal, set aside the judge’s decision and proceed to remake the decision ourselves at the hearing, even though no additional evidence had been provided to us at the hearing about the circumstances of family life. Mr Onokwu confirmed that he wanted us to proceed to re-make the decision at the hearing and that there was no need for a further hearing.
Analysis
13. We agree that the judge made an error of law in approaching the task of calculating whether the appellant had the requisite finances at the date of the application, rather than throughout the period of six months prior to the date of the application as is clearly required by the Immigration Rules.
14. We are satisfied that this was a material error of law in the circumstances of this appeal. The appellant needed to show that she had access to savings totalling £62,500 throughout a period of six months prior to the application, which was between 1 July 2023 – 31 December 2023. In her “Grounds of Appeal” against the respondent’s decision, she included a table which indicated that at the date of the decision, she had access to savings in bank accounts, plus access to 50% of the balance of the sponsors pension, which amounted to the equivalent of £62,676.92, which is only £176.92 above the required amount. However, as Mr Onokwu rightly conceded the lowest balance during the six month period held jointly in the GT Bank, US dollar account was not the US$16,398 that had been referred to in the table, but rather was only US$11,693 on 25 July 2023, which is some US$4,705 less (equivalent to about £3478 with an exchange rate 1:32 (although a rate of 1:27 was referred to in the table)) and which plainly meant that the appellant could not show that she had held the required £62,500 by some margin. Further, we also agree that there is at least one missing bank statement (for the month of November for the sponsor’s GT Bank Account). Furthermore, although “at the date of the hearing” it would have been possible to draw down 50% of the sponsor’s bank account, he had only turned 50 three months prior to the hearing, and so it could not be said that these funds had been accessible for 6 months before the appellant had made the application. Finally, Mr Onokwu had pointed out to us that the sponsor had held stocks in US companies valued at $4,034 (which was said to have been equivalent to £3,118,86 at the date of the application). However, even if this were considered as part of the calculation, it would again not be enough to get the appellant back to the required sum of £62,500. Consequently, we have satisfied ourselves that the judge’s error was material because the appellant cannot satisfy the financial requirements.
15. We are also satisfied that the judge’s error led him to reach the wrong overall conclusion in relation to the proportionality exercise because he attached “significant weight” to the fact that the appellant had complied with the Immigration Rules, when conversely, the appellant could not do so. Further, we note that there is no principle of “near miss” in the case law, which would enable us to allow the appeal in circumstances where the provisions of the Immigration Rules are nearly but not quite met (Miah and others v Secretary of State for the Home Department [2012] EWCA Civ 261, [2013] QB 35). We therefore conclude that we must find that the First-tier Tribunal decision involved an error on a point of law and set it aside.
16. The parties agreed that we should proceed to re-make the decision on the basis of the evidence that had been before the Entry Clearance Officer. We have considered Mr Onokwu’s submissions but we do not agree with him that refusing the appellant entry clearance would give rise to exceptional circumstances because a refusal would result in unjustifiably harsh consequences for the appellant, her partner or her children. We were told by Mr Onokwu that the family lived together in Nigeria and we had no evidence about the consequences to the family, either collectively, or individually if entry clearance were refused. For example, absent evidence, it was not clear to us, whether the children would remain in Nigeria, or travel to the UK without their mother, and what the effect of either route would have upon them. We have therefore decided to dismiss the appellant’s appeal against the respondent’s decision to refuse entry clearance. In so doing, we note that it remains open to the appellant to make a further application for entry clearance, which could include a letter from her husband’s employer which satisfies the requirements of the Immigration Rules.

Notice of Decision
17. The making of the decision of the First-tier Tribunal involved an error on a point of law. The Secretary of State’s appeal is accordingly allowed, and the First-tier Tribunal Judge’s decision is set aside.
18. We remake the decision by dismissing Mrs Ajibola’s appeal.

Signed Date: 13 June 2025
Kathryn Howarth

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber