Upper Tribunal (Immigration and asylum chamber), 2021-04-14, [2021] UKUT 115 (IAC) (Begum (employment income, Rules/Article 8))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Mr C M G Ockelton, Vice President |
| Status | Reported |
| Date | 14 April 2021 |
| Published date | 14 May 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | employment income, Rules/Article 8 |
| Hearing Date | 31 March 2021 |
| Appeal Number | [2021] UKUT 115 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Begum (employment income; Rules/Article 8) [2021] UKUT 00115 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House by Skype |
Decision & Reasons Promulgated |
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On 31 March 2021 |
14 April 2021 |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT
Between
ASMA BEGUM
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr A Seelhoff, Solicitor, A Seelhoff Solicitors
For the respondent: Ms S Cunha, Senior Home Office Presenting Officer
(1) In an application for entry clearance as the partner of a person present and settled in the United Kingdom, the financial requirements in E-ECP.3.1 of Appendix FM to the Immigration Rules regarding income from employment relate to the period of 6 months prior to the date of the application. There is no requirement to continue in the relevant employment (or some at least equally remunerative employment) thereafter.
(2) The significance of P being found by the Tribunal to satisfy a provision of the Immigration Rules, which the Secretary of State considered P did not satisfy, and which caused her to refuse P’s application, applies to entry clearance cases, as it does to cases where P is in the United Kingdom. Provided that ECHR Article 8 is engaged, the Secretary of State will 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 relates to the particular rule that the Tribunal finds was satisfied: OA and others (human rights; “new matter”; s. 120) Nigeria [2019] UKUT 65 (IAC).
(3) There may be situations in which, even though it is found on appeal that P meets the requirement of a particular rule, which the Secretary of State wrongly concluded P did not meet, and which led her to refuse the application, circumstances have, nevertheless, come to light that mean the Secretary of State can legitimately invoke some other provision of the Rules, in order to deny P entry. One can also envisage an extreme case (eg. forced marriage) where, whether or not the Rules make express provision for it, the true position is such that the very purpose of Article 8 would be subverted by facilitating P’s entry. Or, more generally, it may appear that deception has been employed or that the applicant has behaved in such a way that public policy requires their exclusion.
DECISION AND REASONS
A. THE APPELLANT AND HER HUSBAND
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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.
B. THE IMMIGRATION RULES
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The relevant provision for our purposes of Appendix FM 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.
E-ECP.2.2. The applicant must be aged 18 or over at the date of application.
E-ECP.2.3. The partner must be aged 18 or over at the date of application.
E-ECP.2.4. The applicant and their partner must not be within the prohibited degree of relationship.
E-ECP.2.5. The applicant and their partner must have met in person.
E-ECP.2.6. The relationship between the applicant and their partner must be genuine and subsisting.
E-ECP.2.7. If the applicant and partner are married or in a civil partnership it must be a valid marriage or civil partnership, as specified.
E-ECP.2.8. If the applicant is a fiancé(e) or proposed civil partner they must be seeking entry to the UK to enable their marriage or civil partnership to take place.
E-ECP.2.9. Any previous relationship of the applicant or their partner must have broken down permanently, unless it is a relationship which falls within paragraph 278(i) of these Rules.
E-ECP.2.10. The applicant and partner must intend to live together permanently in the UK.
Financial requirementsE-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 from 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.
In this paragraph ‘child’ means a dependent child of the applicant or the applicant’s partner who is
(a) under the age of 18 years, or who was under the age of 18 years when they were first granted entry under this route;
(b) applying for entry clearance as a dependant of the applicant or the applicant’s partner, or is in the UK with leave as their dependant;
(c) not a British Citizen, settled in the UK, or in the UK; and
(d) not an EEA national with a right to be admitted to or reside in the UK under the Immigration (European Economic Area) Regulations 2006.
E-ECP.3.2. When determining whether the financial requirement in paragraph E-ECP. 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.”
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Appendix FM-SE (Family members – specified evidence) sets out the specified evidence which applicants need to provide, in order to meet the requirements of the rules contained in Appendix FM. At paragraph 13 of Appendix FM-SE (calculating gross annual income under Appendix FM), we find the following:-
“13. Based on evidence that meets the requirements of this Appendix, and can be taken into account with reference to the applicable provisions of Appendix FM, gross annual income under paragraphs E-ECP.3.1., E-LTRP.3.1., E-ECC.2.1. and E-LTRC.2.1. will, subject to paragraph 21A of this Appendix, be calculated in the following ways:
(a) Where the person is in salaried employment in the UK at the date of application, has been employed by their current employer for at least 6 months and has been paid throughout the period of 6 months prior to the date of application at a level of gross annual salary which equals or exceeds the level relied upon in paragraph 13(a)(i), their gross annual income will be (where paragraph 13(b) does not apply) the total of:
(i) The level of gross annual salary relied upon in the application;
(ii) The gross amount of any specified non-employment income (other than pension income) received by them or their partner in the 12 months prior to the date of application; and
(iii) The gross annual income from a UK or foreign State pension or a private pension received by them or their partner.
(b) Where the person is in salaried employment in the UK at the date of application and has been employed by their current employer for less than 6 months (or at least 6 months but the person does not rely on paragraph 13(a)), their gross annual income will be the total of:
(i) The gross annual salary from employment as it was at the date of application;
(ii) The gross amount of any specified non-employment income (other than pension income) received by them or their partner in the 12 months prior to the date of application; and
(iii) The gross annual income from a UK or foreign State pension or a private pension received by them or their partner.
In addition, the requirements of paragraph 15 must be met.
(c) Where the person is the applicant’s partner, is in salaried employment outside of the UK at the date of application, has been employed by their current employer for at least 6 months, and is returning to the UK to take up salaried employment in the UK starting within 3 months of their return, the person’s gross annual income will be calculated:
(i) On the basis set out in paragraph 13(a); and also
(ii) On that...
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