Upper Tribunal (Immigration and asylum chamber), 2022-01-27, HU/20675/2019
| Jurisdiction | UK Non-devolved |
| Date | 27 January 2022 |
| Published date | 15 February 2022 |
| Hearing Date | 06 January 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/20675/2019 |
Appeal Number: HU/20675/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/20675/2019
THE IMMIGRATION ACTS
|
Heard at Cardiff Civil Justice Centre |
Decision & Reasons Promulgated |
|
On 6 January 2022 |
On 27 January 2022 |
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Remotely by Microsoft Teams |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
ENTRY CLEARANCE OFFICER, SHEFFIELD
Appellant
and
SHAZIA BIBI
Respondent
Representation:
For the Appellant: Mr C Bates, Senior Home Office Presenting Officer
For the Respondent: Mr S Woodhouse, SH Solicitors Ltd
DECISION AND REASONS
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Although this is an appeal by the Entry Clearance Officer (“ECO”), for convenience I will refer to the parties as they appeared before the First-tier Tribunal.
Introduction
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The appellant is a citizen of Pakistan who was born on 20 September 1987.
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On 7 November 2015, the appellant married, Mohammed Riyasat in Pakistan. Mr Riyasat is a British citizen. On 6 December 2019, the appellant gave birth to the couple’s daughter.
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On 5 September 2019, the appellant applied for entry clearance to join her husband (the sponsor) in the UK under Appendix FM of the Immigration Rules (HC 395 as amended). On 19 November 2019, the ECO refused the appellant’s application. The ECO was not satisfied that the relationship between the appellant and her husband was genuine and subsisting such that the requirement in E-ECP.2.6 of Appendix FM was met. Further, the ECO was not satisfied that the appellant met the financial requirements in E-ECP.3.1 to 3.4 of Appendix FM.
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On 27 February 2020, the Entry Clearance Manager (“ECM”) upheld the ECO’s decision on both bases.
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The appellant appealed to the First-tier Tribunal. In a decision sent on 25 February 2021, Judge Ali allowed the appellant’s appeal, on the only available ground of appeal, namely that the refusal of entry clearance breached Art 8 of the ECHR.
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First, the judge found that the relationship between the appellant and sponsor was a genuine and subsisting one. Secondly, although the judge accepted that the appellant did not meet the financial requirements of appendix FM at the date of application, he accepted, on the basis of the evidence before him, that the sponsor’s income (in the form of savings and pensions) met the requirements of the Rules at the date of the hearing. On the basis of that finding, and having regard to the public interest, the judge found that the refusal of entry clearance would breach Art 8 of the ECHR as being disproportionate.
The Appeal to the Upper Tribunal
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The ECO appealed to the Upper Tribunal on a single ground, namely that the judge had failed to resolve an issue relied upon by the Presenting Officer at the hearing, namely whether the sponsor’s savings were, in fact, genuinely his given the increase in savings between September 2019 and February 2021 from just under £23,000 to over £38,000 despite the sponsor’s total annual income being approximately £13,500.
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On 14 April 2021, the First-tier Tribunal (Judge Keane) granted the ECO permission to appeal on that sole ground.
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Thereafter, on 13 May 2021, the Upper Tribunal (UTJ Norton-Taylor) made directions in relation to a “typed note” prepared by the Presenting Officer following the First-tier Tribunal hearing which, it was said, recorded that he had raised the issue of the genuineness of the savings held by the sponsor before the judge.
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In response to those directions, the ECO on 25 May 2021 indicated that the “typed note” was in fact the Presenting Officer’s hearing minute summarising the events at the appeal and prepared on the day of the appeal. That hearing minute had been provided with the grounds of appeal.
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On 6 January 2022, the appeal was listed for hearing at the Cardiff Civil Justice Centre. I was present in court and Mr Bates, who represented the ECO, and Mr Woodhouse, who represented the appellant, joined the hearing remotely by Microsoft Teams.
The Issues
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At the hearing, Mr Bates did not rely upon the ground of appeal upon which permission had been sought and granted by the First-tier Tribunal. He accepted that if the appellant met the financial requirements of Appendix FM on the basis of the specified documents required by Appendix FM-SE, then it was not relevant whether the funds held by the sponsor in his savings account were genuinely his or not. It was sufficient that the specified documents showed, in accordance with the requirements of Appendix FM, that taking together his pensions with his savings, he met the financial requirements in E-ECP.3.1–3.4.
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Instead, Mr Bates contended that the documentation did not meet the requirements of Appendix FM-SE. In short, he submitted that the bank statements could not be shown to be on “official bank stationery” or, if “electronic bank statements” were accompanied by a letter from the bank on its headed stationery confirming that the documents were authentic or that each page bore an official stamp by the bank (see para A1(1)(a)(v) of Appendix FM-SE). In relation to the sponsor’s state and private pensions, there was no official documentation from the Department for Work and Pensions and the pension company confirming a pension entitlement and its amounts (see para A1(10)(e)(i)(1) and (3) of Appendix FM-SE).
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Mr Bates accepted that these points had not been previously raised by the ECO, ECM, or before the First-tier Tribunal or in the grounds of appeal. Nevertheless, he invited me to, in effect, allow the ECO to amend his grounds of appeal to allow a challenge to the judge’s finding that the sponsor’s income met the financial requirements of the Rules at the date of hearing.
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On behalf of the appellant, Mr Woodhouse submitted that it was now too late for the ECO to raise this argument at the hearing in the Upper Tribunal. In any event, he submitted that there were supporting documents in relation to the two pensions at pages 81–86 and 80 of the bundle. He also submitted that the bank statements did meet the requirements of the Rules.
Discussion
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The judge’s finding that the appellant’s relationship with the sponsor was genuine and subsisting is not challenged. Further, the judge’s finding that the appellant could not meet the financial requirements at the date of application is also not challenged. That would have required the appellant to rely on joint accounts held by the sponsor and his two sons in Pakistan which the judge concluded was not permitted by the Rules.
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Nevertheless, at para 25 of his decision the judge found that a combination of the sponsor’s annual pensions plus his savings in his sole name did meet the requirements of the Rules at the date of hearing. Para 25 is as follows:
“However, as this is an appeal brought under Article 8 of the Human Rights Act I am able to consider the circumstances of the appellant at the time of the hearing. At the time of the hearing the sponsor’s income was presented as follows; he was in receipt of UK State Pension of £564.60, which is paid to him every four weeks. He was in receipt of a private pension of £518.35 from Lafarge UK Pensions, which is paid to him every month. The pensions combined yield an annual income of £13,560. In addition to this the sponsor submitted bank statements in his name only, that he held with the NatWest Bank (pages 11 to 26 of AB). The bank statements showed an account balance of £12,029.07 (bank account ending 7706 as of 01.02.2021) and £26,035.35 (Bank Account ending 0485 as of 01.02.2021) respectively and so in total he had a total savings of £38,064.45, applying the above there was a deficit of £5,040 in order to meet the income requirement of £18,600. In applying the respondent’s own guidance, the appellant would require a minimum savings of £28,600 in order to meet the income requirement. It is evident that on the evidence before me the sponsor’s savings of £38,064.45 far exceeds the minimum savings of £28,600 that is required. On that basis I find that the appellant is able to satisfy the financial eligibility requirements of Appendix FM. This is a factor which I can take into account when considering the proportionality of the decision to refuse leave to enter”.
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The actual figures disclosed by the documents relied on by the judge are not, in fact, disputed. However, as was accepted before me, the judge made a mistake by taking the highest figure for the sponsor’s savings over the relevant period of time rather than the lowest continuous figure over that period.
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The appellant had to establish that the sponsor’s income was £18,600. The pension showed that he had an annual income of £13,560. That was a shortfall of £5,040. In order to rely upon...
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