United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

Upper Tribunal

(Immigration and Asylum Chamber)                   Appeal Number: HU/02565/2019 

 

THE IMMIGRATION ACTS

 

Heard at Manchester	Decision & Reasons Promulgated
On 23 September 2019	On 30 September 2019

 

Before

 

UPPER TRIBUNAL JUDGE PICKUP

 

Between

 

S h 

(ANONYMITY DIRECTION NOT MADE)  

Appellant

 

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

Representation:

 

For the Appellant:          Not legally represented 

For the Respondent:      Mr A McVeety, Senior Home Office Presenting Officer 

 

DECISION AND REASONS

 

1.             There was no application for an anonymity direction.  The First-tier Tribunal did not make an anonymity direction and, in the circumstances, I do not make an anonymity direction. 

2.             At the outset of the hearing it appeared that the appellant was not legally represented.  She brought with her a friend who did speak English, a Dr Stanikzai.  I indicated that I was content for him to assist the appellant.  The appellant told me that she did understand English but as it transpired during the hearing she did not understand as well as she thought and at times it was necessary for the friend to interpret what was being said.  I asked them specifically whether she wanted to continue or whether she wanted to adjourn for the provision of an interpreter and through her friend she said that they wanted to continue with the hearing today. I should also add that the appellant was also escorted by her partner, the sponsor.  In the circumstances I was satisfied that it was appropriate and consistent with overriding object to deal with cases fairly and justly to continue the error of law hearing, bearing in mind that at this stage the hearing was confined to submissions, rather than the taking of any evidence.         

3.             This is the appellant’s appeal against the decision of First-tier Tribunal Judge Devlin promulgated on 16 June 2019 dismissing on all grounds the appellant’s appeal against the decision of the Secretary of State dated 9 March of 2019 refusing her application made on 3 December 2018 for leave to remain as the partner of a settled person in the UK. 

4.             First-tier Tribunal Judge Scott-Baker granted permission to appeal on 30 July 2019.  Thus, the matter came before me on 23 September 2019 in the Upper Tribunal. 

5.             In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such as to require Judge Devlin’s decision to be set aside.  The grounds assert primarily that the judge was incorrect not to have taken the sponsor’s previous salaried earnings into account on the basis that he was not in employment at the date of application.  It is also asserted that the sponsor had been credible explaining why the amounts in his bank statement was less than the amounts declared in his tax return.  Thirdly, it is argued that the finding in relation to fertility treatment in Afghanistan was flawed given that the Upper Tribunal had accepted that such treatment was not available in Afghanistan and that the appellant and the sponsor had no family in Afghanistan. 

6.             Dealing first with the evidence in relation to financial eligibility, the judge neglected to note that under paragraph 13(e) of Appendix FM-SE that a self-employed person’s gross annual income equates to the total of income from all sources in the “last full financial year” or an “average of the last two full financial years”.  Instead, the judge took a different route, concluding that it was possible to look forward to the future income of the sponsor and relying on Section 85 of the 2002 Act and the sponsor’s assertion that in the current financial year, 2018 /2019, he had earned £19,103, and had enclosed some documentation in relation to that. 

7.             It was argued before the First-tier Tribunal that the appellant now met the financial eligibility requirements and therefore the appeal should be allowed.  However, in a very long decision comprising some 268 paragraphs, Judge Devlin concluded that the documentary evidence to support the future income was not present and in nay e event insufficient to meet the requirements of the Rules.  I need not detail all of that, because it is set out quite clearly in Judge Devlin’s decision. 

8.             With regard to paragraph 13(e), the judge may have erred in failing to take into account the previous earnings, being the sponsor’s part-time employment salary of £8,970 from the employment at a takeaway which terminated in March of 2018, and his self-employed income of £10,040.  Those two figures, if able to be taken together, exceed the £18,600 minimum financial threshold.  On the basis of paragraph 13(e) it was arguable that those two figures could be taken together, provided that they fell within the last full financial year.  In those circumstances, I am satisfied that the judge fell into error.  I am not satisfied that he was right in considering a future income under the Rules. However, whether the judge was right to consider future income or not, and even though the judge was wrong in relation to failing to appreciate the effect of paragraph 13(e) of Appendix FMSE, the fact remains that the specified documentary evidence required to evidence either the past or the future income was not available. 

9.             In essence, the sponsor was paid cash in hand and he was unable to show payments into a bank account which matched any form of income.  It would be impossible for the respondent in those circumstances to verify the income. The documentary evidence required was not produced. It follows that the appellant’s claim must fail, even though the judge approached it in a legally incorrect way. 

10.         As far as the issue about the availability of infertility treatment in Afghanistan, the appellant relied on an unreported decision of the Upper Tribunal, which the judge should not have considered, but it did not in effect assist the appellant.  It remains for the appellant to show, in relation to medical treatment, that such treatment is not available in the country from which she comes.  However, there is no evidence to suggest that IVF treatment is not available in Afghanistan.  Of course, it might be doubtful that IVF was available in Afghanistan, but the fact remains it was for the appellant to show that it was not.  Today, she told me that she had no such evidence but just “knew” that it was not available. 

11.         In any event, I am not satisfied that the issue of IVF treatment is capable of amounting to Article 3 ECHR grounds outside the Rules or even insurmountable obstacles to family life continuing outside the UK in pursuit of paragraph EX1 under Appendix FM.  This is not the situation where the appellant has a medical condition for which she will not be able to receive treatment.  Similarly, I am not satisfied that the wish to obtain or pursue IVF treatment and its alleged unavailability can amount to compelling circumstances.  It follows that I find no error of law in relation to that issue. 

12.         In the circumstances, although, as I have stated, the judge proceeded on an incorrect legal basis with reference to the requirements under Appendix FM-SE, the appeal was doomed to failure from the outset.  The Rules could not be met, and there was nothing compelling outside the Rules to justify granting leave on the basis that the decision would otherwise be unjustifiably harsh. 

13.         It remains open to the appellant to make a further application, taking care to demonstrate that the application is accompanied by all the relevant legal evidential requirements.  They are quite complex, and the appellant may be best assisted by a legal representative. 

14.         It follows from the above that I find no error of law in the impugned decision.       

Decision 

15.         The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law such that the decision should be set aside. 

I do not set aside the decision. 

The decision of the First-tier Tribunal stands and the appeal remains dismissed on all grounds. 

 

 

 

No anonymity direction is made.

 

                                                         

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Signed

 

Upper Tribunal Judge Pickup  

 

          Dated                                    27 September 2019

 

 

To the Respondent

Fee Award

 

 

I have dismissed the appeal and therefore there can be no fee award.

 

 

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Signed                                 

 

Upper Tribunal Judge Pickup

 

          Dated                                    27 September 2019