Upper Tribunal (Immigration and asylum chamber), 2015-09-14, IA/16776/2014

JurisdictionUK Non-devolved
Date14 September 2015
Published date18 January 2016
Hearing Date04 September 2015
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberIA/16776/2014

Appeal Number: IA/16776/2014

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/16776/2014


Heard at Field House

Decision & Reasons Promulgated

On 4th September 2015

On 14th September 2015










For the Appellant: Mr M K Mustafa of Kalam, solicitors

For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer


1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2. The Secretary of State for the Home Department brings this appeal, but in order to avoid confusion, the parties are referred to as they were in the First Tier Tribunal. This is an appeal by the Secretary of State against the decision of First Tier Tribunal Judge Knowles, promulgated on 17 March 2015, which allowed the appellant’s appeal against the respondent’s decision dated 20 March 2014 to refuse the appellant leave to remain in the UK and to give directions for his removal.


3. The appellant was born on 15 April 1979 and is a national of Bangladesh.

4. On 17 February 2014, the appellant applied for further leave to remain in the UK as a student. The respondent refused the appellant’s application on 20 March 2014. The appellant appealed against that decision on 7 April 2014 on grounds which related entirely to his pursuit of education in the UK. In addition, he argued that his pursuit of academic study in the UK created private life within the meaning of Article 8 ECHR which would be breached by his removal.

5. On 10 October 2014, the appellant filed a statement of additional grounds under Section 120 of the Nationality, Immigration and Asylum Act 2004. In that Section 120 notice, the appellant claimed that he qualified for leave to remain as a partner under Section R-LTRP of Appendix FM to the Immigration Rules following his marriage to a British citizen on 3 September 2014.

The Judge’s Decision

6. The appellant appealed the respondent’s decision of 20 March 2014 to the First Tier Tribunal. First Tier Tribunal Judge Knowles (“the judge”) allowed the appeal against the respondent’s decision, finding that the appellant fulfilled the requirements of Appendix FM of the Immigration Rules. In doing so, the judge found that the appellant’s application for leave to remain in terms of Appendix FM was made when the Section 120 notice was served on 10 October 2014.

7. Grounds of appeal were lodged and on 18 May 2015, First Tier Tribunal Judge Lever granted permission to appeal, stating inter alia:

It is arguable that the judge had not applied the correct period of production of financial documents, that being the six month period prior to the date of application.”

The Hearing

8. Mr Tarlow, for the respondent, focused on [54] and [55] of the judge’s decision and referred me to Paragraph 2(a)(i) of Appendix FM-SE which specifically sets out a requirement for payslips covering “a period of six months prior to the date of application…” He told me that that provision was written in unambiguous and straightforward terms and was not capable of the interpretation given to it by the judge in [54] and [55] and, that had a correct interpretation been placed on that provision, the appeal could not have been allowed under the Immigration Rules.

9. Mr Mustafa argued for the appellant that there is a conflict between primary and secondary legislation. He referred to Section 85(2) and Section 85(4) of the Nationality, Immigration and Asylum Act 2002. He relied on Patel and others v SSHD [2013] UKSC 72 and SS Congo [2015] EWCA Civ 387, and argued that there is no error in the judge’s decision. The judge was obliged to consider all matters placed before him because of the operation of Section 85 of the 2002 Act and said that the apparent conflict between primary and secondary legislation can only be resolved by a purposive interpretation of the Immigration Rules.


10. There is no conflict between primary and secondary legislation. Section 85 of the 2002 Act requires a tribunal to consider any matter raised in the grounds of appeal and, to an extent, that is what the judge did. Unfortunately, in considering all of the matters raised, the judge incorrectly interpreted Paragraph 2 of Appendix FM-SE.

11. There is force in Mr Tarlow’s submission that Paragraph 2 of Appendix FM-SE is written in unambiguous terms. It demands payslips covering “(i) a period of six months prior to the date of application…” There is a difference between the date of application and the date of lodging of the Section 120 notice (in this case, seven months after the date of decision appealed against). The harsh truth is that although the appellant and his wife have produced a sequence payslips covering a six month period, they have produced payslips for the wrong period. The application was made in February 2014. The payslips should therefore date from September 2013 to complete the six months sequence required by Paragraph 2 of Appendix FM-SE. The judge correctly found (at [54]) that the earliest payslip (and so the commencement of the six month period) is dated October 2013. The straightforward terms of Appendix FM-SE cannot be fulfilled.

12. I therefore find that the decision promulgated on 17 March 2015 is tainted by a material error of law and must be set aside.

13. Although I set aside the decision promulgated on 17 March 2015, I preserve the findings made by Judge Knowles and so go on to decide the appeal of new.

14. The judge found that the appellant and the sponsor were credible witnesses, that they are married and that the sponsor is pregnant with their first child. The original decision was made in terms of paragraph 322(1) of the Immigration Rules. Paragraph 322 (1) of the rules sets out a mandatory refusal because the variation of leave was sought for a purpose not covered by the Rules. At [48], the judge found that that decision was “unassailable”. No challenge is raised to that decision. The focus in this case was on Section R-LTRP of Appendix FM.

15. It is beyond dispute that the date of application was February 2014. It is equally beyond dispute that a sequence of payslips starting in October 2013 was produced. October 2013 is five months prior to the date of submission of the application. Because the payslip for September 2013 has not been produced, the appellant cannot fulfil the requirements of the Immigration Rules.

16. It is submitted that the appellant’s rights in terms of Article 8 ECHR are breached and that the facts and circumstances of this case merit consideration of Article 8 out-with the Rules.

17. R (on the application of Esther Ebun Oludoyi & Ors) v SSHD (Article 8 – MM (Lebanon) and Nagre) IJR [2014] UKUT 00539 (IAC) in which it was held that there is nothing in R (Nagre) v SSHD [2013] EWHC 720 (Admin), Gulshan (Article 8 – new Rules – correct approach) Pakistan [2013] UKUT 640 (IAC) or Shahzad (Art 8: legitimate aim) [2014] UKUT 00085 (IAC) to indicate that a threshold test was being suggested as opposed to making it clear that there was a need to look at the evidence to see if there was anything which has not already been adequately considered in the context of the Immigration Rules and which could lead to a successful Article 8 claim. These authorities must not be read as seeking to qualify or fetter the assessment of Article 8. This is consistent with para 128 of R (MM & Others) v SSHD [2014] EWCA Civ 985, that there is no utility in imposing a further intermediate test as a preliminary to a consideration of an Article 8 claim beyond the relevant criterion-based Rule. As is held in R (Ganesabalan) v SSHD [2014] EWHC 2712 (Admin), there is no prior threshold which dictates whether the exercise of discretion should be considered; rather the nature of the assessment and the reasoning which are called...

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