Upper Tribunal (Immigration and asylum chamber), 2022-12-18, HU/07020/2020
| Appeal Number | HU/07020/2020 |
| Hearing Date | 10 November 2022 |
| Published date | 03 January 2023 |
| Date | 18 December 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-000290
HU/07020/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2022-000290
HU/07020/2020
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 10th November 2022 |
On 18th December 2022 |
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Before
UPPER TRIBUNAL JUDGE KEITH
Between
AYIZA KASHIF
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE ENTRY CLEARANCE OFFICER
Respondent
Representation:
For the Appellant: Mr L Youssefian, instructed by House of Immigration Solicitors
For the Respondent: Ms A Nolan, Senior Home Office Presenting Officer
DECISION AND REASONS
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This is the remaking of the decision in the appellant’s appeal against the respondent’s refusal of her application for entry clearance to settle with her husband, a British citizen, Mohammad Hussain. Her appeal was based on her right to respect for her family and private life under Article ECHR.
Background
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The respondent refused the appellant’s application for entry clearance, in a decision dated 24th April 2020. This was on the basis that the appellant did not meet the financial evidence requirements of paragraph EC-P.1.1 of Appendix FM of the Immigration Rules. Specifically, the respondent concluded that there were gaps in the evidence relating to Mr Hussain’s income, necessary to meet the requirements of para E-ECP.3.1 to 3.4, to prove a gross income of at least £18,600. Whilst he had claimed to have been employed and earned an annual income of £24,000 from 1st April 2019, the respondent had concluded that he did not meet the evidential requirements of Appendix FM-SE, specifically paragraph 9(b). Mr Hussain had been appointed on 21st March 2017 as a co-director and co-owner of the company by whom he was employed, alongside his brother, who was his fellow director and shareholder. This meant that the evidence requirements relating to self-employment, rather than arms-length employment, applied. On 1st April 2020, the respondent asked Mr Hussain to provide evidence of payslips and bank statements for the relevant period. He did not do so. The respondent concluded that the appellant had failed to meet the following requirements of Appendix FM-SE: para 9, sub-paras (b)(v), (c)(i), (c)(ii) and (d)(i), and (ii). The respondent was additionally concerned that whilst unaudited accounts indicated directors’ salaries of £10,000, there were no other administration expenses of either salary or dividend payments, despite the appellant being in a partnership with his brother. Even if Mr Hussain had provided the specified evidence, he would not have met the financial requirements. Moreover, Mr Hussain had submitted documents relating to a later tax year, ended on 31st March 2020 which were submitted after the application date, and therefore could not be relevant to meet the requirements of paragraph 9(b) of Appendix FM-SE. Also, whilst the appellant asserted that there was evidence of rental income, the respondent was not satisfied that Mr Hussain received the income.
The FtT’s Decision
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As I already identified in my error of law decision, the FtT erroneously excluded evidence at the date of the hearing on the basis of a misapplication of law that had predated 20th October 2014, specifically an earlier provision of Section 85 of the Nationality, Immigration and Asylum Act 2002. As a consequence I had set aside the FtT’s decision without preserved findings of fact. I retained remaking in this Tribunal, on the basis of being invited to do so by both representatives. The respondent also consented to my considering new matters, specifically that the appellant and Mr Hussain have two young British citizen children, who currently live with the appellant in Pakistan but who make regular trips to see Mr Hussain, his parents and family, in the UK. I set out below my findings about the family’s circumstances.
The Issues
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I agreed with the representatives the issues in the remaking decision before me. On behalf of the appellant, Mr Youssefian accepted that at the date of the application for entry clearance, the appellant’s application did not satisfy Appendix FM-SE.
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However, he contended that at the date of the hearing before the FtT, on 24th June 2021, the evidence, which the FtT had declined to consider, was sufficient to meet the requirements of Appendix FM-SE. Ms Nolan disputed this. Mr Youssefian’s submission was that if the appellant met the requirements of Appendix FM-SE at the FtT hearing, although matters have moved on since then, that would be a significant factor in the appellant’s favour for the purposes of the proportionality assessment under Article 8.
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Mr Youssefian went on to confirm that at the date of this hearing before me, the appellant did not have evidence which met the requirements of Appendix FM-SE. He was careful, in his measured submissions, not to assert that it would have been impossible for the appellant to have adduced such evidence before me. Rather, he stated that because relevant tax returns were not due to be filed until 31st December 2023, that might present some difficulties in providing evidence which complied with Appendix FM-SE. Ms Nolan disputed that the appellant had ever complied with Appendix FM-SE. Drawing the issues together these are therefore:
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Whether the appellant’s evidence before the FtT on 24th June 2021 satisfied the requirements of Appendix FM-SE.
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For the purposes of Article 8 ECHR, it being accepted that family life existed and exists between the appellant, Mr Hussain, and their children and the best interests of those children, if the appellant’s evidence did meet the requirements at 24th June 2021, whether that was determinative of the Article 8 appeal (see the authority of TZ (Pakistan) and Another v SSHD [2018] EWCA Civ 1109).
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Regardless of whether the appellant has complied with the strict requirements of Appendix FM-SE, whether the appellant has established that ‘in reality,’ she meets the income requirements of Appendix FM, such that refusal of her application for entry clearance is disproportionate.
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I do not recite all of the evidence to which I have been referred or the parties’ respective submissions, except where it is necessary to resolve contested findings. Mr Hussain gave brief oral evidence, which supplemented a witness statement in his bundle. The bundle itself ran to some 464 pages and I agreed with the representatives that I would not refer to the documents relating to finances unless expressly referred to them.
Findings
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Mr Hussain is a British citizen, born in the UK, and lives in the UK in a multi-generational household with his parents and two siblings. He has four other siblings who live in their own houses in close proximity. He also has nieces and nephews who live nearby, and his entire family live in the UK. He is currently aged 33, married the appellant in October 2019 and stayed with her in Pakistan for a few months until he returned to resume his work in the UK. The couple have two children, whom it is unnecessary to name: a son born on 17th November 2020; and a daughter born on 4th July 2022. Both children are British citizens. The appellant’s son has visited the UK a few times, typically for a couple of weeks, although he is currently with his father for a more extended period because of today’s hearing. The normal arrangement is that the children live with the appellant in Pakistan but it is difficult for her to cope by herself. Mr Hussain visits the appellant in Pakistan every couple of months for a couple of weeks. He finds it exhausting to do so, misses her and his children terribly and finds it hard mentally.
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Turning to Mr Hussain’s financial arrangements and his work, in her refusal letter, the respondent had rejected the appellant’s application because of the absence of the documentation set out below. I asked Mr Youssefian to point out the documents relied on for the proposition that by the date of the hearing before the FtT on 24th June 2021, as opposed to the date of the application for entry clearance on 4th March 2020, the appellant had addressed each of those omissions.
Corporate/business bank statements covering a 12 month period as at the company tax return CT600 were required under Appendix FM-SE, para 9(b)(v). The appellant had applied for entry clearance on 4th March 2020 and had referred to Mr Hussain’s employment from 1st April 2019 by VIP Driven Limited, but given his link to his employing company, as a director and sibling of a shareholder, he was required to provide a CT600 or company tax return for the last full financial year and evidence that the CT600 had been filed with HMRC. The bank statements needed to cover that period. The CT600 for the period from 1st April 2019 to 31st March 2020 begins at page [21] of the appellant’s bundle. Mr Youssefian relied on the Barclays current account statements for the directors of VIP Driven Limited, at pages [257] to [288B]. I observe that these statements relate to the following year from April 2020 to April...
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