Secretary of State for the Home Department v RA (Pakistan) and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Lewison |
| Judgment Date | 11 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1524 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2015/3135 |
| Date | 11 November 2015 |
[2015] EWCA Civ 1524
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Lewison
Lord Justice Underhill
Case No: C5/2015/3135
Miss Claire Palmer (Instructed by GLD) appeared on behalf of the Applicant
The Respondent appeared in person
This hearing was listed to determine the Secretary of State's application for permission to appeal with the substantive appeal to follow if permission were given.
The case is one of a number concerning the provisions of Appendix FM of the Immigration Rules, introduced with effect from 9 July 2012, under which the sponsor of an applicant seeking leave to enter as a spouse must show that he or she has an income of at least £18,600 per year, the so-called "minimum income limit", or a greater sum if there are children. The history of the challenges to those provisions appears from the decisions of this court in R (MM (Lebanon)) v Secretary of State for the Home Department [2015] 1 WLR 1073 and Secretary of State for the Home Department v SS (Congo) [2015] EWCA Civ 387; I need not set it out in detail here. In bare outline, in the first instance decision in MM (Lebanon), decided on the 5 July 2013, Blake J held that the minimum income limit was inconsistent with article 8 of the European Convention of Human Rights, essentially because it was too rigid and at too high a level. One important feature of his decision and reasoning was that it suggested that tribunals should in practice ignore the limits provided for in the Rules and apply a different and lower limit of £13,400 based on a recommendation of the Immigration Advisory Committee. That decision was overturned by the Court of Appeal on 11 July 2014 in the decision to which I have already referred. I mention, for completeness, although it is not in fact material for our purposes, that the Supreme Court granted permission to appeal on 19 May 2015, and the appeal will be heard between 22 and 24 February 2016.
In the interval of a year or so between the decisions of Blake J and the Court of Appeal, the First-tier and Upper Tribunal allowed a large number of appeals against decisions of Entry Clearance Officers in reliance on Blake J's decision. When that decision was overturned, the Secretary of State appealed in those cases. Six such "post MM" cases were heard together and decided as SS (Congo): again, I have already referred to that decision. On 23 April 2015 those appeals that were in time were allowed. The Supreme Court has very recently given permission and the appeals are to be heard with MM.
A number of the post- MM cases, including this one, were stayed pending the outcome in SS. Most have now been compromised or further stayed pending the outcome of the appeals to the Supreme Court. However, such agreement has not proved possible in this case and the respondent and her sponsor made it clear that they do not wish the matter to await the outcome of the appeals to the Supreme Court.
On this hearing, the Secretary of State, the appellant, has been represented by Miss Claire Palmer, of counsel, and we are grateful for her clear and forceful submissions. The respondent, being overseas has, of course, not appeared, but her sponsor has appeared in person, although in the event we did not have to hear from him.
I can summarise the facts and the procedural history fairly shortly.
The respondents, Rabia Asad and Mohammed Musab, are the wife and son respectively of the sponsor, Asad Darr. Mr Darr is himself a British citizen, living and working here. They have another child here, a daughter, who is a British citizen although her brother is not. The precise background as to how that has occurred is not clear from the material before us. On 7 December 2012 the respondents applied for entry clearance to join the sponsor in this country. It was necessary under the rules that Mr Darr, as their sponsor, could show an annual income of at least £22,400. It seems – although, again, the facts are not as clear as one would wish – that in the application an annual income for the previous year of £24,750 was claimed; or in any event figures given which were said to produce that result. It is, however, common ground that not all the supporting documents required by the rules were produced to the Entry Clearance Officer.
The appeal to the First-tier Tribunal was heard in February 2014. The judge accepted that the respondents were unable to satisfy the Rules, at least because of the failure to supply supporting documentation. It is unclear from her decision whether she accepted that there was also a substantive failure to meet the minimum income figure. It rather seems as though the position was that she believed the figure could have been proved from subsequently supplied evidence, but that is not, however clear. She nevertheless allowed the appeal by reference to article 8 "outside the rules". Her reasoning can be summarised as follows. She started by referring to the decision of the Upper Tribunal in Gulshan [2013] UKUT 640 (IAC). The passage which she quoted briefly...
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