Begum (Employment Income; Rules/Article 8)
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Mr CMG Ockelton |
| Judgment Date | 14 April 2021 |
| Neutral Citation | [2021] UKUT 115 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2021] UKUT 115 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Mr CMG Ockelton (Vice President)
Mr A Seelhoff, Solicitor, A Seelhoff Solicitors, for the Claimant;
Ms S Cunha, Senior Home Office Presenting Officer, for the Secretary of State.
Charles (human rights appeal: scope) [2018] UKUT 89 (IAC); [2018] Imm AR 911
Mahad (previously referred to as AM) (Ethiopia) and Others v Entry Clearance Officer; Muhumed (previously referred to as AM (No. 2)) (Somalia) v Entry Clearance Officer[2009] UKSC 16; [2010] 1 WLR 48; [2010] 2 All ER 535; [2010] Imm AR 203; [2010] INLR 268
Mandalia v Secretary of State for the Home Department [2015] UKSC 59; [2015] 1 WLR 4546; [2016] 4 All ER 189; [2016] Imm AR 180; [2016] INLR 184
Marbury v Madison (1803) 5 US (1 Cranch) 137
OA and Others (human rights; ‘new matter’; s. 120) Nigeria [2019] UKUT 65 (IAC); [2019] Imm AR 647; [2019] INLR 312
R v Secretary of State for the Home Department ex parte Razgar [2004] UKHL 27; [2004] 2 AC 368; [2004] 3 WLR 58; [2004] 3 All ER 821; [2004] Imm AR 381; [2004] INLR 349
R (on the application of MM (Lebanon), Majid (Pakistan), AF and Javed (Pakistan)) v Secretary of State for the Home Department; SS (Congo) v Entry Clearance Officer, Nairobi[2017] UKSC 10; [2017] 1 WLR 771; [2017] Imm AR 729; [2017] INLR 575
R (on the application of Pathan) v Secretary of State for the Home Department [2020] UKSC 41; [2020] 1 WLR 4506; [2021] 2 All KR 761; [2021] Imm AR 235; [2021] INLR 91
R (on the application of Taj) v Secretary of State for the Home Department [2021] EWCA Civ 19; [2021] 1 WLR 1850; [2021] Imm AR 748
TV (Pakistan) v Secretary of State for the Home Department; PG (India) v Secretary of State for the Home Department[2018] EWCA Civ 1109; [2018] Imm AR 1301
European Convention on Human Rights, Article 8
Human Rights Act 1998, section 6
Immigration Rules HC 395 (as amended), paragraphs 27 & 321A; paragraphs E-ECP.2.1.–E-ECP.2.10., E-ECP.3.1 E-ECP.3.2. & E-ECP.3.4. of Appendix FM; paragraphs 13 & 15(b) of Appendix FM-SE
Nationality, Immigration and Asvlum Act 2002, sections 82, 84(2), 85(4) & 113(1)
Human rights — Article 8 of the ECHR — family life proportionality — satisfaction of Immigration Rules — importance of maintaining immigration controls not a factor — immigration — entry clearance employment income — paragraph E-ECP.3.1. of Appendix EM to the Immigration Rules financial requirements fixed at date of application
The Claimant was a citizen of Bangladesh. In February 2018, she applied for entry clearance to the United Kingdom under Appendix FM to the Immigration Rules HC 395 (as amended), on the basis of her family life with her British citizen husband, the sponsor, who was present and settled in the United Kingdom. In support of her application, the Claimant submitted six months' payslips from the sponsor's employer covering the period August 2017 to January 2018 and Lloyds Bank statements covering the period August 2017 to January 2018. In June 2018, the Secretary of State for the Home Department refused the application on the grounds that the evidence submitted did not meet the requirements of paragraph E-ECP.3.1. of Appendix FM. The Secretary of State also did not consider that there were exceptional circumstances which would render refusal a breach of Article 8 of the ECHR. The refusal of the application constituted the refusal of a human rights claim which gave rise to a right of appeal to the First-tier Tribunal (“FtT”) under section 82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
On appeal before the FtT, the sponsor gave evidence that he had left his employer in April 2018 and had become self-employed. The FtT Judge found that the documentary evidence established that the sponsor was genuinely employed as claimed in the six months prior to the Claimant's application and that he was earning in excess of the required £18,600. Accordingly, the decision of the Secretary of State under the Immigration Rules was not justified. The Judge noted, however, that any matters relevant to the substance of the decision under appeal could be considered by the FtT, including those arising after the date of decision pursuant to section 85(4) of the 2002 Act. According to the Judge, from the moment the sponsor left his job in April 2018, “the entire legal position changed”. As the sponsor no longer met the financial requirements by the date of the hearing, the Claimant's human rights appeal failed.
Permission to appeal was refused by the FtT and the Upper Tribunal (“UT”). The High Court quashed the UT's refusal of permission in December 2019. The UT granted permission to appeal and heard submissions on the substantive appeal. The parties agreed with the conclusion of the FtT Judge that the decision taken in respect of the Immigration Rules was wrong, in that, as at the date of application, the Claimant did, in fact, meet the requirements of those Rules. The issue was whether the Judge was right to hold that the human rights appeal nevertheless fell to be dismissed because the Rules required the Claimant not only to show that the sponsor was in the requisite employment at the date of application (and had been in it for the past six months), but also that he had continued in that employment, not only at the date of the Secretary of State's decision but also at the date of the hearing of the appeal.
Held, allowing the appeal:
(1) None of the provisions regarding the financial requirement in paragraph E-ECP.3.1. could properly be construed as imposing any sort of ambulatory requirement to continue in the relevant employment, beyond the date of application. That conclusion was reinforced upon examination of paragraph 13 of Appendix FM-SE, which set out the specified evidence which applicants had to provide, in order to meet the requirements of the rules contained in Appendix FM. That provision was firmly focussed on the past six months or, in some cases, twelve months, preceding the date of application. The Immigration Rules had been framed in such a way as to fix the relevant financial requirements at the date of application. The FtT Judge was, therefore, wrong to dismiss the appeal on the basis that the Claimant did not meet the requirements of the Immigration Rules at the date of the hearing. That error would not, however, be a material one if the appeal would still have fallen to be dismissed because, even though the Claimant met the requirements of the Rules, it was not a disproportionate interference with Article 8 rights to refuse her admission (paras 24 – 29).
(2) The significance of a person being found by the Tribunal to satisfy a provision of the Immigration Rules, which the Secretary of State considered the person did not satisfy, and which caused her to refuse the person's application, applied to entry clearance cases, as it did to cases where the person was in the United Kingdom. Provided that Article 8 of the ECHR was engaged, the Secretary of State would not be able to point to the importance of maintaining immigration controls as a factor weighing in her favour in the proportionality balancing exercise, so far as that factor related to the particular rule that the Tribunal found was satisfied: OA and Others (human rights: ‘new matter’; s. 120) Nigeria[2019] UKUT 65 (IAC) applied (paras 30 – 35).
(3) There might be situations in which, even though it was found on appeal that a person met the requirement of a particular rule, which the Secretary of State wrongly concluded the person did not meet, and which led her to refuse the application, circumstances had, nevertheless, come to light that meant the Secretary of State could legitimately invoke some other provision of the Rules, in order to deny the person entry. One could also envisage an extreme case, for example forced marriage, where, whether or not the Rules made express provision for it, the true position was such that the very purpose of Article 8 would be subverted by facilitating the person's entry. Or, more generally, it might appear that deception had been employed or that the applicant had behaved in such a way that public policy required their exclusion (para 36).
(4) There was no suggestion whatsoever in the instant case that any such hypothetical situation might exist. The refusal of entry clearance was entirely due to the Secretary of State's view about the sponsor's ability to meet the financial requirements of the Rules by virtue of employment. The FtT found that view was wrongly held. That mistaken view continued to be the sole ground for refusal. As such, the instant case fell squarely within the scope of cases envisaged in OA and TZ (Pakistan) v Secretary of State for the Home Department[2018] EWCA Civ 1109. It would manifestly be a disproportionate interference with the Article 8 family life that existed between the Claimant and her husband for the Secretary of State to refuse the Claimant entry clearance (para 37).
The Hon. Mr Justice Lane, President:
[1] The appellant is a citizen of Bangladesh, born in 1995. On 12 February 2018, she applied for entry clearance to the United Kingdom under Appendix FM to the Immigration Rules, on the basis of her family life with Shahin Ahmed, her British citizen husband, who is present and settled in the United Kingdom. The couple were married in Bangladesh in December 2016.
[2] The relevant provision for our purposes of Appendix EM are as follows:
“Relationship requirements
E-ECP.2.1. The applicant's partner must be –
(a) a British Citizen in the UK, subject to paragraph GEN.1.3.(c): or
(b) present and settled in the UK, subject to paragraph GEN.1.3.(b); or
(c) in the UK with refugee leave or with humanitarian protection.
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