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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: OA/03911/2013

 

 

THE IMMIGRATION ACTS

 

 

Heard at Newport	Determination Promulgated
On 19th June 2014	On 30th June 2014

 

 

Before

 

upper tribunal judge POOLE

 

Between

 

GELIM REGIS

(ANONYMITY DIRECTION NOT MADE)

 

Appellant

and

 

ENTRY CLEARANCE OFFICER KINGSTON

Respondent

 

 

Representation:

 

For the Appellant: Mr Andrew Joseph, Counsel instructed by Crowley & Co

For the Respondent: Mr David Mills, Home Office Presenting Officer

 

 

DETERMINATION AND REASONS

 

 

1.                  In this document I will refer to the parties using the descriptions adopted before the First Tier Tribunal.

 

2.                  The appellant is a male citizen of Haiti born 28 June 1986. He applied for entry clearance to settle in the United Kingdom as the spouse of his sponsor following their marriage in the Dominican Republic on 5 February 2010.

3.                  The respondent refused the application upon the basis that the applicable Immigration Rules had not been satisfied. That decision was made on 13 May 2012.

 

4.                  The appellant appealed against that decision and his appeal came before Judge of the First Tier Tribunal Britton on 12 February 2014. Both parties were represented. During the course of that hearing it was noted that sponsor/wife is in receipt of Income Support, but that she receives financial help (as does the appellant) from a third-party, Mrs Amaran Sadiq and her husband Mr Maqbool Sadiq. Based upon this third-party support Judge Britton decided to allow the appeal.

 

5.                  The respondent sought leave to appeal. The grounds contended an error on the part of the judge in not explaining his conclusions and whether the appeal was allowed under the rules or under ECHR. It was contended that the third-party support that was available had not been adequately evidenced and that any conclusions reached by the judge were inadequately explained.

 

6.                  The application was then considered by a Judge of the Upper Tribunal sitting in the First Tier who granted leave gave the following reasons:

 

“1. The respondent seeks permission to appeal, in time, against a decision of the First Tier Tribunal (Judge Britton) who, in a determination promulgated on 27 February 2014 allowed the appellant’s appeal against the Entry Clearance Officer’s decision to refuse him leave to enter as a spouse.

 

2. The grounds assert that the judge erred in that he makes no clear finding under the Immigration Rules and thus the basis in which the appeal is allowed and that the third-party support, accepted by the judge had not been adequately evidenced. If the judge allowed the appeal on Article 8 grounds the judge has failed to give reasons for justifying considering Article 8 outside the Immigration Rules.

 

3. This was an appeal that fell to be determined under paragraph 281 of the Immigration Rules. Gulshan (Article 8 - new Rules - correct approach) [2013] UKUT 640 (IAC) has no application.

 

4. However, the determination is barely reasoned and it is not clear on what basis the judge concluded that third party support was acceptable or on what basis he has allowed the appeal.

 

5. The grounds are arguable”.

 

7.                  Hence the matter comes before me in the Upper Tribunal.

 

8.                  Mr Mills in his submission said the determination was non- specific as to whether the appeal had been allowed under Rule 281 or under Article 8 ECHR, or indeed both. The respondent now challenged both. It was accepted that because of the date of the decision the case of Gulshan was not relevant. There had been a complete lack of reasoning within the determination. As to reference to the Immigration Rules, Mr Mills explained the history of third-party support and the fact that such support could now be taken into account, but it had to be borne in mind that such support was not enforceable, such support needed to be proven to be assured. In doing so the burden of proof was upon the appellant. In this case the judge had not made any findings on whether or not the support could be assured and if so, why. Mr Mills questioned how the judge could be satisfied as to the adequacy of the support from Mr and Mrs Sadiq. There was not enough money in the bank. There was an income of £110 a week, but no details have been given with regard to Mr and Mrs Sadiq’s other commitments.

 

9.                  With regard to Article 8, this is mentioned in what is likely to be paragraph 17 (un-numbered) and it is not clear at all as to how the judge reached his conclusions.

 

10.              Mr Joseph in reply referred to paragraph 10 of the determination where regular payments of £40 to £90 have been mentioned. He referred to a previous visit visa appeal in respect of the appellant, wherein it was accepted that the Sadiq’s sent money as they said. Mr Joseph submitted that the findings were open to the judge and there was a letter from Albany Fish Bar offering the appellant work. The determination was sufficiently reasoned and in respect of Article 8 it was very brief, but again sufficient.

 

11.              At this stage, I indicated that for the reasons now given herein I considered there was an error of law within the determination. It was material and the decision must be set aside. I indicated that my view was that because there had been very little findings that could be preserved and evidence will need to be taken with regard to the financial aspects with regard to third-party support, it was appropriate for the matter to be remitted for re-hearing. Both representatives were in agreement.

 

12.              In reaching a conclusion that the determination had to be set aside, I noted in particular that the judge had not made clear findings by reference either to the rules or to Article 8. Indeed it is not even clear upon which basis the appeal was allowed. The judge noted that payments by way of support had been made to the appellant/sponsor in the past, but because of the nature of the balances held in the bank account of Mr and Mrs Sadiq, it would be necessary to look also at the income position. Whilst Mr Sadiq’s income was noted, there was no reference to his outgoing’s and therefore no clear picture of his ability to meet the shortfall could be understood from a reading of the determination. Such an explanation would be needed to explain to the respondent as the losing party why the decision was made. The conclusions reached by the judge have been inadequately explained and this would amount to an error of law material to the outcome.

 

13.              The grounds seeking leave, together with the reasons given for granting permission to appeal also are acceptable and explained why the decision cannot stand.

 

14.              I am satisfied that this case meets the criteria set out in the relevant practice statement for appeals and that it is appropriate to remit the case to the First Tier Tribunal.

 

15.              Decision of the respondent’s appeal allowed. The decision of the First Tier Judge is set aside and the case remitted for re-hearing.

 

 

 

 

Signed Date

 

 

Upper Tribunal Judge Poole