Secretary of State for the Home Department v MS (Pakistan)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin,Lord Justice McCombe,Lord Justice Lindblom |
| Judgment Date | 27 July 2018 |
| Neutral Citation | [2018] EWCA Civ 1776 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2014/2623 AND C5/2014/2173 |
| Date | 27 July 2018 |
[2018] EWCA Civ 1776
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL,
(IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Garratt
OA/08476/2013
AND
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL,
(IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Bruce
OA/21431/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Kitchin
Lord Justice McCombe
and
Lord Justice Lindblom
Case No: C5/2014/2623 AND C5/2014/2173
Alan Payne (instructed by Government Legal Department) for the Appellant
Tony Muman and Thomas Green (instructed by J.M. Wilson Solicitors) for the Respondent in the First Appeal; Ramby de Mello (instructed by J.M. Wilson Solicitors) for the Respondent in the Second Appeal
Hearing date: 12 July 2018
Judgment Approved
(A) Introduction
These are two appeals by the Secretary of State for the Home Department (“the SSHD”) from decisions of the Upper Tribunal (Immigration and Asylum Chamber) (“UT”), dismissing his appeals from decisions of the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”). The FTT decisions allowed appeals by the Respondents from decisions of Entry Clearance Officers. In each case the Entry Clearance Officer (“ECO”) had refused to grant to the Respondents leave to enter the United Kingdom on the basis that the respective sponsors to their applications, their spouses, did not satisfy the minimum income requirements (“MIR”) specified in the Immigration Rules (“IR”).
The relevant MIR were (in each case) set out in the following passages of Appendix FM to the I.R:
“17. The Respondent was required to meet (inter alia) the following requirements in the Appendix FM of the Rules (emphasis added):
E-ECP.1.1. To meet the eligibility requirements for entry clearance as a partner all of the requirements in paragraphs E-ECP.2.1. to 4.2. must be met….
Financial requirements:
E-ECP.3.1. The applicant must provide specified evidence, from the sources listed in paragraph E-ECP.3.2., of—
(a) a specified gross annual income of at least—
(i) £18, 600;
(ii) an additional £3,800 for the first child; and
(iii) an additional £2,400 for each additional child; alone or in combination with
(b) specified savings of—
(i) £16,000; and
(ii) additional savings of an amount equivalent to 2.5 times the amount which is the difference between the gross annual income form the sources listed in paragraph E-ECP.3.2. (a)-(d) and the total amount required under paragraph E-ECP.3.1. (a); or
(c) the requirements in paragraph E-ECP.3.3 being met.
E-ECP.3.2. When determining whether the financial requirement in paragraph EECP.3.1. is met only the following sources will be taken into account—
(a) income of the partner from specified employment or self-employment, which, in respect of a partner returning to the UK with the applicant, can include specified employment or self-employment overseas and in the UK;
(b) specified pension income of the applicant and partner;
(c) any specified maternity allowance or bereavement benefit received by the partner in the UK or any specified payment relating to service in HM Forces received by the applicant or partner;
(d) other specified income of the applicant and partner; and
(e) specified savings of the applicant and partner.”
The first appeal (MS's case) is that of the SSHD from the determination of the UT (Deputy Upper Tribunal Judge Garratt) of 3 April 2014, dismissing the appeal of the ECO from the FTT's determination (Tribunal Judge Landes) of 14 February 2014 which had allowed the appeal of the first appellant (“MS”) from the ECO's refusal decision of 12 March 2013.
The second appeal (the case of TD and X) is that of the SSHD from the decision of the UT (Deputy Upper Tribunal Judge Bruce) of 29 January 2014 dismissing the ECO's appeal from the decision of the FTT (Tribunal Judge Afako) of 11 October 2013 which had allowed the appeals of TD and her son, X (aged 12) from the ECO's refusal decision of 6 March 2013.
The applications for permission to appeal to this court were stayed, pending the determination of pending appeals, first to this court and then to the Supreme Court in lead cases ultimately decided in February 2017, to which the reference of the Supreme Court judgment is R (MM (Lebanon) & ors.) v SSHD [2017] UKSC 10.
Subsequent to the Supreme Court judgments permission to appeal was granted in each of the cases by Sir Ernest Ryder (Senior President of Tribunals) on 15 February 2018.
(B) Facts of the two Appeals and the Tribunal Decisions
The First Appeal
MS is a male national of Pakistan born on 26 January 1986. His sponsor, Ms B entered the United Kingdom on 29 August 2001, with leave to enter as the spouse of a British citizen. She subsequently also became a British citizen. She later divorced from her first husband, with whom she has two children, at the relevant time aged 9 and 5 respectively.
In August 2012 Ms B obtained employment with Derbyshire Care Services, having had no other employment in the 12 months immediately preceding MS's application for leave to enter. On 26 November 2012 Ms B and MS married in Pakistan. In December 2012 MS applied for entry clearance as the spouse of a British national. It was that application that was refused by the ECO on 6 March 2013. The ECO decided that the MIR had not been met.
In its decision of 14 February 2014, the FTT decided that the MIR had not been met as Ms Butt had not earned £18,600 in the 12 months preceding the ECO's decision. It was found that the payslips for the four months which she had been able to supply, relating to the four months preceding the application, equated to annual income between £16,460 and £22,000. Under the rules prevalent at the time, annual income was calculated by reference to the lower of these two figures. However, following the High Court decision of Blake J in MM [2013] EWHC 1900 (Admin) and taking into account fuller background facts, the FTT held that MS appeal should be allowed on the basis that refusal of entry clearance amounted to an unjustified interference with the right to respect for family life under Article 8 of the European Convention on Human Rights and Fundamental Freedoms.
The FTT judge recorded the submission on behalf of MS that Ms B, as sponsor, had received bad advice and that, if properly advised, she would have waited and would have produced documents satisfying the MIR. It was acknowledged by counsel for MS before the FTT, (not Mr Muman or Mr Green who appeared for MS before us) that if Ms B had submitted these materials in a new application it would have succeeded. It was submitted, however, that MS and his sponsor should not have to go through the expense and procedures again.
The FTT found that,
“…the likelihood was that the couple would in the medium term earn significantly more than £18,600 between them given [MS's] desire to work and the fact that [Ms B's] earning capacity was likely to increase.”
Accordingly, the ECO's decision was, in the FTT's view,
“…disproportionately harsh and disproportionate [sic] …and that it is disproportionate for the family to be further separated and it is not in the interests of [Ms B's] children who should be forming a relationship with their stepfather…”
The judge said (a little later) that,
“I do not consider it reasonable to expect the sponsor and her British children to uproot themselves to Pakistan. The point as explained in MM is that it is disproportionate to require sponsor in these circumstances to abandon the right of residence which she has as a British citizen simply because she has married a foreign national, in circumstances where her salary is more than equivalent to a full-time minimum wage salary and she is in a position to maintain the appellant. In other words following the approach in MM there are compelling circumstances not sufficiently recognised under the rules in a case such as this.”
The UT dismissed the SSHD's appeal, holding that,
“In considering human rights issues the judge was entitled to place reliance upon the High Court case in MM …as that decision was then, and is now, relevant to the financial circumstances of this case even if leave to appeal it has been granted. In making her decision the judge was therefore entitled to conduct an analysis of the financial evidence put before her even if it did not meet the specific requirements of the Immigration Rules. On this basis the family income for the appellant evidently fell above the minimum income level suggested in MM of £13,400.”
The Second Appeal
TD and her son, X, are Jamaican nationals. TD first formed a relationship with X's father, G, their sponsor, in about 1995. G was also originally of Jamaican nationality. G first entered the UK as a student and was granted indefinite leave to remain in 2007 on the basis of his family life with a different partner. However, TD and G married in Jamaica in 2012. TD and X applied on 27 July 2012 for entry clearance as the partner and dependent child respectively of G. The applications were refused on the basis that the MIR were not met. G needed a gross income of £22,400 (£18,600 (basic) + £3,800 for the first dependent child, i.e. X). G had failed to supply the supporting documentation to demonstrate his income as a self-employed plasterer and in respect of his income as a soldier in the Army reserves. Further, the ECO did not accept that G and TD were in a genuine relationship.
The FTT accepted, however, that there was a true relationship between TD and G and he produced documentation evidencing income, first of £16,659 for the year to 5 April 2012, and secondly, for the period thereafter to the...
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Upper Tribunal (Immigration and asylum chamber), 2018-12-20, OA/08476/2013
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