Upper Tribunal (Immigration and asylum chamber), 2017-04-19, HU/10605/2015 & Ors.
| Appeal Number | HU/10605/2015 & Ors. |
| Hearing Date | 04 April 2017 |
| Published date | 20 May 2022 |
| Date | 19 April 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: HU/10605/2015
HU/10573/2015
HU/10584/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/10605/2015
HU/10573/2015
HU/10584/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 4 April 2017 |
On 19 April 2017 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
MRS SHOKORIA ZARMIR
miss muslima zarmir
mr abdul REHMAN zarmir
(ANONYMITY DIRECTION not made)
Appellants
and
ENTRY CLEARANCE OFFICER, ISLAMABAD
Respondent
Representation:
For the Appellant: Mr A Decker as Non-Legally Qualified Representative
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer
DECISION AND REASONS
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These are appeals by the Appellants against the decision of First-tier Tribunal Judge L M Shand QC (the judge), promulgated on 1 December 2016, in which she dismissed their appeals. The appeals to the First-tier Tribunal had been against the Respondent’s decisions of 6 October 2015, refusing deemed human rights claims (in the form of entry clearance applications) for the Appellants to join the Sponsor, Mr Ismail Zarmir, in the United Kingdom. The first Appellant is the Sponsor’s wife and she is the mother of the second and third Appellants. The Sponsor is the children’s father.
The judge’s decision
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The appeals came before the judge on 17 October 2016. The Sponsor was not legally represented but he attended with a family friend, Mr A Decker. Mr Decker sought to present the Appellants’ case before the Tribunal. At paragraph 9 the judge makes reference to Mr Decker, stating that the Sponsor was an articulate and fluent English speaker, and that it was he who presented the Appellant’s case, conferring at times with Mr Decker. It is also stated that Mr Decker was permitted to make some closing submissions at the end of the hearing.
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There were essentially three live issues in the appeals. The first was whether or not false representations had been made by the Appellants when making the applications. This issue is resolved in the Appellant’s favour at the end of paragraph 15. The second issue was that relating to whether or not the first Appellant met the English language requirements under Appendix FM to the Rules. This too was resolved in the Appellant’s favour, at paragraph 30. The third and most important issue was that of the financial requirements under Appendix FM, with reference to Appendix FM-SE. In addressing this issue the judge took the date of applications as being 1 June 2015 (see paragraph 2).
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She then proceeded on the basis that the only bank statements submitted with the applications had been those covering the months November 2014 to April 2015. It is clearly stated at paragraph 17 that there was no bank statement covering May 2015. As a result of this the judge reached the conclusion that the evidence provided did not satisfy the particular requirements of Appendix FM-SE. It is said that the income reflected in the evidence covering November 2014 to April 2015 was insufficient to meet the agreed financial threshold in these appeals of £24,800. A further point made by the judge (in paragraph 21) is that cash wages of £216 a month could not be taken into account because the Sponsor, when depositing this money into his account, topped the figure up to £220 and as this £220 figure did not precisely match the £216 wage the judge took the view that the income could not be considered. At paragraph 22 the judge suggested even if this cash income could be taken into account it was only to the extent that the net figure was relevant, not the gross figure. On the judge’s calculations the net figure when totalled up over the course of the relevant period would result in a figure below the £24,800 threshold.
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The final point in respect of the evidential requirements is taken at paragraph 23, in which the judge refers to an employer’s letter for Italianio Pizza and notes that the letter was undated. In the judge’s view this could not comply with the requirements of Appendix FM-SE paragraph A1.2(b).
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As a result of his findings the judge concludes that the requirements of Appendix FM were not satisfied and therefore she dismissed the appeals purportedly on the erroneous basis that the Appellant was able to assert that the Respondent’s decisions were not in accordance with the Immigration Rules (the appeals are governed by the amended provisions of the Nationality, Immigration and Asylum Act 2002).
The grounds of appeal and grant of permission
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The grounds of appeal, though rather lengthy, can be boiled down to the following: first that there was procedural unfairness by the judge in her refusal to allow Mr Decker to present the Appellants’ case during the course of the hearing; second, the judge materially erred in law when considering the evidence and requirements of Appendix FM-SE. It is said that relevant evidence was overlooked, in particular a bank statement covering May 2015.
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Permission to appeal was granted by First-tier Tribunal Judge Pooler on 13 March 2017. The grant of permission makes reference to the procedural unfairness challenge and goes on to suggest that if there had been unfairness this might have materially affected the presentation of the Appellant’s case in relation to the financial requirements under Appendix FM.
The hearing before me
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The Sponsor did not attend the hearing. I was satisfied that notice of hearing had been sent out to the correct address, that the Sponsor was aware of the hearing and that I could proceed in his absence. In any event Mr Decker who had appeared below, also attended this hearing. He informed me that the Sponsor had not wanted to attend.
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The preliminary issue to be decided was whether Mr Decker could indeed represent the Appellants (and, in effect, the Sponsor) in the Upper Tribunal. Mr Decker provided me with a short document entitled “letter of authority”, dated 2 April 2017, which purported to confirm on the Appellants’ behalf that Mr Decker was able to represent them at this hearing. I made certain enquiries of Mr Decker at the outset about the nature of his representation. He confirmed to me that he was a friend of the family, that he was a flatmate of the Sponsor, and had met him through their local mosque. He also confirmed that he had no financial relationship with the Sponsor or the Appellants, that no money had exchanged hands at any stage, that he himself is a student, and that he is not engaged in any business whatsoever relating to the provision of immigration advice or representation. Mr Singh did not seek to challenge any of this information.
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I concluded that Mr Decker was indeed a family friend and not a person engaging in any relevant business. Therefore he was not a person whose representation at the hearing was prohibited by virtue of section 84 of the Immigration and Asylum Act 1999. Instead, he was a family friend whose ability to represent at a hearing has long been recognised by the Tribunal (see for example RK [2011] UKUT 409 (IAC)). In consequence of the foregoing, I decided that Mr Decker was able to represent the Appellants before me.
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There followed a discussion about the correct date of the applications made by the Appellants to the Respondent. As I have mentioned already, the judge proceeded on the basis that these were made on 1 June 2015. Both representatives agreed that this was in fact incorrect and that the applications had in fact been made on 26 June 2015.
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I then heard from Mr Decker. He relied on the grounds of appeal. In respect of the representation issue he submitted that the judge had refused to allow him to present the case as the hearing unfolded. The judge had permitted him to confer with the Sponsor and indeed to make some closing submissions at the end of the hearing but that was not, submitted Mr Decker, the same as being able to present evidence and potentially ask questions and seek clarification during the course of the hearing. Mr Decker added that the hearing had ended very late in the day and that if he felt that submissions were rather rushed, and he came away believing that he had not been able to set out all that he had wanted to in those closing submissions.
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On the representation issue Mr Singh very candidly referred to the note of the Presenting Officer which as far as Mr Singh could see was consistent with Mr Decker’s account, as set out above. He acknowledged that there was a difference between a Sponsor or family friend being a representative and a McKenzie Friend. Mr Singh suggested that if Mr Decker or people in a similar position were not confined to being McKenzie Friends, allowing them to appear before the Tribunal and present cases would amount to the creation of a “new category” of representative, and this should be avoided. Mr Singh did however acknowledge that judge’s have case management powers which enable them to deal with proceedings before them in a manner they deem fit, subject to the requirements of procedural fairness to both parties.
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I then asked both representatives about the issue of whether any procedural unfairness relating to representation...
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