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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/17678/2018

 

THE IMMIGRATION ACTS

 

Heard at Manchester Civil Justice Centre	Decision & Reasons Promulgated
On 2 September 2019	On 3 September 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

 

Between

ARSLAN AZIZ

(ANONYMITY DIRECTION NOT MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

Representation :

For the Appellant: Mr J Holt counsel

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

 

DECISION AND REASONS

Introduction

1.          I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2.          The Secretary of State for the Home Department brings this appeal but in order to avoid confusion the parties are referred to as they were in the First-tier Tribunal. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Cole, promulgated on 9 June 2019 which allowed the Appellant's appeal against the refusal of a human rights claim.

Background

3.          The Appellant was born on 14 September 1989 and is a national of Pakistan.

4.          On 3 April 2018 the Appellant applied for entry clearance as a Spouse. In that application the Appellant claimed that his wife, the Sponsor, earned £14,000 and therefore did not meet the minimum threshold of £18,600 but argued that the criteria under Appendix FM Gen 3.1 applied that refusal would result in unjustifiably harsh consequences for the applicant, his partner and child and therefore third party support from the Sponsors father could be considered and the minimum threshold would be met.

5.          On 22 July 2018 the Secretary of State refused the Appellant's application. The refusal letter gave a number of reasons:

(a)        The payslips provided for the period 4.10. 2017- 4.4.2018 from GI Group showed and annual income of £11,504.47.

(b)        No evidence of exceptional circumstances allowing third party funding to be considered was shown.

6.          Grounds of appeal were lodged arguing that:

(a)        The Judge failed to reconcile inconsistencies as to the Sponsors income in determining whether the income threshold was met.

(b)        The Judges findings at paragraphs 40-43 are unclear given that they start by stating that the income earned by the Sponsor was, not particularly clear.' But then go on to find that the minimum income threshold was met.

(c)        The proportionality assessment was inadequate.

7.          On 9 July 2019 Upper Tribunal Judge Keith gave permission to appeal stating

8.          At the hearing I heard submissions from Mr McVitie on behalf of the Respondent that:

(a)        The Judge had very confused evidence before him as to the Sponsors income at the time of the hearing which he failed to reconcile.

(b)        The Sponsor produced a P60 for 2018-2019 which contradicted the Appellants oral evidence as to her income at the time of the hearing but the Judge simply ignored it which was perverse.

(c)        The Judge made a finding at paragraph 42 that the Sponsor was earning £14,000 per annum but failed to make clear, given the contradictory evidence, before him where he derived that figure from.

(d)        The proportionality assessment must be flawed if the minimum income threshold was not met.

9.          On behalf of the Appellant Mr Holt submitted that:

(a)        The Judge accepted what the Appellant said her earnings being £14,000 per year.

(b)        The problem was that the P60 appeared to contradict this.

(c)        However the Sponsor was not challenged about this in cross examination and to raise that as a discrepancy without giving the Appellant the opportunity to address the issue in cross examination would have been procedurally unfair.

(d)        The Sponsor was now working different hours at the time of the hearing and therefore there was a difference between the income claimed then and now but this was not specifically raised in the grounds.

10.       In reply Mr McVitie on behalf of the Respondent submitted that

(a)        The P60 was relied on at the hearing by the Appellant.

Finding on Material Error

11.       Having heard those submissions I reached the conclusion that the Tribunal made no material errors of law.

12.       This was a human rights appeal as it was a refusal of entry clearance to a spouse who had applied to join his wife and child in the UK. As stated at paragraph 34 of TZ and PG [2018] EWCA Civ 1109

"where a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person's article 8 appeal, provided their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed."

13.       The Judge in this case was therefore required to make clear findings as to whether the Appellant met the income requirements of the Rules when her income and that of her father were combined because if she did then her application should have been granted and to refuse her application would be disproportionate. It was accepted that the Appellant could not meet the income requirements by reference to the Sponsors income alone and that income was set out in the refusal letter as £11504.47. There was no dispute in the refusal letter that she had not provided the mandatory evidence to show that this income was received in the form of pay slips and bank statements simply that her income alone had not reached the threshold of £18,600. Had the Respondent wished to challenge that evidence by reference to Appendix FM-SE it would have been open to him to do so in the refusal letter and it would have been open to the Judge, particularly given the Appellant was unrepresented to establish at the start of the hearing that the Appellant was not required to prove this again.

14.       The Judge's decision to find that there were circumstances justifying consideration of third party support has not been challenged. The evidence of the income available at the time of application by way of third party support set out at paragraph 35 and supported by clear and consistent documentary evidence was that the Sponsors father could afford to provide £9,100 per annum and therefore the Sponsor had to demonstrate that her earnings at the time of the application were at least £9,500 which was accepted in the refusal letter.

15.       The Judges findings as to the Sponsors income are set out at paragraphs 39 onwards. These were arguably unnecessary given what was in the refusal letter but any erroring re opening the issue was not material given his conclusion . While he does not explicitly refer the £11,504.77 accepted in the refusal letter he states at paragraph 42 that the Sponsor 'earns in excess of £9500' which was enough to satisfy the requirements of the Rules. While he went on the look at the income at the time of the hearing I am satisfied that he was not required to make findings about that as he had determined that the Appellant met the Rules at the date of application and therefore the application should have been granted. Given that the P60 related to the Sponsors income at the time of the hearing I am satisfied that any deficiency of findings in relation to that were not material to the issues he had to determine.

16.       I take into account what was said by the Court of Appeal in MD (Turkey) [2017] EWCA Civ 1958 at paragraph 26:

"The duty to give reasons requires that reasons must be proper, intelligible and adequate: see the classic authority of this court in Re Poyser and Mills' Arbitration [1964] 2 QB 467. The only dispute in the present case relates to the last of those elements, that is the adequacy of the reasons given by the FtT for its decision allowing the appellant's appeal. It is important to appreciate that adequacy in this context is precisely that, no more and no less. It is not a counsel of perfection. Still less should it provide an opportunity to undertake a qualitative assessment of the reasons to see if they are wanting, perhaps even surprising, on their merits. The purpose of the duty to give reasons is, in part, to enable the losing party to know why she has lost. It is also to enable an appellate court or tribunal to see what the reasons for the decision are so that they can be examined in case some error of approach has been committed."

17.       I am therefore satisfied that the Judge's determination when read as a whole set out findings that were sustainable and sufficiently detailed and based on cogent reasoning and the findings he made as to third party support when taken together with the income accepted in the refusal letter the minimum income requirements were met.

CONCLUSION

18.       I therefore found that no errors of law have been established and that the Judge's determination should stand.

DECISION

19.       The appeal is dismissed.

 

Signed Date 3.9.2019

Deputy Upper Tribunal Judge Birrell