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

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: OA/09073/2015

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 8 th November 2017	On 28 th November 2017

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

 

Between

 

mrs farida begum

(ANONYMITY DIRECTION not made)

Appellant

 

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

 

For the Appellant: Mr M K Mustafa, Solicitor, Kalam Solicitors

For the Respondent: Mr N Bramble, Home Office Presenting Officer

 

 

DECISION AND REASONS

 

1.              The Appellant a national of Bangladesh appealed to the First-tier Tribunal against the decision of the Entry Clearance Officer of 30 ^th April 2015 to refuse her application for entry clearance as a partner under Appendix FM of the Immigration Rules. First-tier Tribunal Judge Walters dismissed the appeal and the Appellant appeals to this Tribunal with permission granted by First-tier Tribunal Judge Brunnen on 19 ^th September 2017.

2.              In the grounds and at the hearing before Mr Mustafa essentially made two submissions. It is firstly contended that the First-tier Tribunal Judge erred in his conclusions in relation to the number of visits made by the Sponsor to Bangladesh to visit the Appellant. It is contended that the judge appears to have failed to take into account the visit made by the Sponsor after the date of the ECO's decision. It is secondly contended that the First-tier Tribunal Judge appeared to be absorbed by the purported length or number of any visits and failed to take into account the significant amount of other evidence put forward in relation to the ongoing continuous nature of the marriage.

3.              Mr Bramble made no submissions.

Error of Law

4.              In the decision the judge says that he took into account the Appellant's bundle [4]. However in his findings the judge makes no reference to the evidence of remittances set out at pages 64 to 93 of the bundle; the evidence of emails between the Appellant and Sponsor at pages 94 to 113; the phone records at pages 114 to 136; and the photographs at pages 137 to 145 of the Appellant's bundle.

5.              Further, as submitted by Mr Mustafa, the Sponsor's passport was before the judge showing a visit to Bangladesh in September 2015 and the judge appears not to have taken into account this second visit.

6.              The judge's failure to refer to any of that evidence in reaching his conclusions amounts to a material error of law.

7.              Accordingly I find that the judge made a material error of law in failing to take account of relevant evidence before him and I set the decision of the First-tier Tribunal aside.

Re-Making the Decision

8.              I remake the decision on the basis of the evidence that was before the First-tier Tribunal Judge. The unchallenged finding of the First-tier Tribunal Judge at paragraph 15 is that the Appellant was earning £18,720 per annum in the twelve months preceding the date of the application. In light of this unchallenged finding I am satisfied that the Appellant met the financial requirements at the date of the hearing.

9.              The Entry Clearance officer's refusal decision raises two other issues under the Immigration Rules.

10.          The first issue raised in the refusal decision is whether the Appellant made misleading representations in relation to the Sponsor's ongoing employment and income. However, in light of the unchallenged findings at paragraphs 16 and 17 of the First-tier Tribunal's decision that the Sponsor had continued working in the same restaurant but that only the limited company owning the restaurant had changed, I find that there was no material change in circumstances in the Sponsor's employment after the application was made. I find that it has not been established that misleading representations have been made in relation to the Sponsor's ongoing employment and income.

11.          The other issue raised in the refusal notice is whether the Appellant met the relationship requirements and can demonstrate that the relationship is genuine and subsisting and that the couple intend to live together permanently in the UK in accordance with paragraph E-ECP.2.6 & 2.10 of Appendix FM of the Rules.

12.          In terms of the genuineness of the relationship I take into account the evidence in the Sponsor's witness statement as to the ongoing nature of the relationship. I take into account the evidence of remittances which show money transfers covering a period from March 2014 to November 2016 showing transfers from the Sponsor to the Appellant. I take into account the emails between the Sponsor and the Appellant contained in the Appellant's bundle between pages 94 and 113. I take into account the evidence of telephone calls as set out in the Sponsor's telephone bills from 2014, 2015 and 2016. I take into account also the photographs of the couple together. Considering all of this evidence I accept that the Appellant has demonstrated that her relationship with the Sponsor is genuine and subsisting.

13.          In these circumstances the Appellant has demonstrated that she meets the requirements of the Immigration Rules. The appeal before me is on the basis of human rights only due to the date of the decision. In light of the fact that the Appellant has a genuine and subsisting marriage with the Sponsor I am satisfied that she has a family life and that the decision to refuse entry clearance amounts to an interference with her family life. In considering proportionality I take into account that that the Appellant has shown that she meets the requirements of the Immigration Rules. In these circumstances and on the basis of all of the evidence before me I am satisfied that there is no public interest in maintaining the decision.

14.          In light of all of the evidence before me I am satisfied that the decision to refuse entry clearance is not proportionate to the public interest.

Notice of Decision

 

The decision of the First-tier Tribunal contained a material error of law.

 

I set the decision of the First-tier Tribunal aside.

 

I remake the decision by allowing the appeal on human rights grounds.

 

No anonymity direction is made.

 

 

Signed Date: 27 ^th November 2017

 

 

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT

FEE AWARD

 

I have allowed the appeal and I impose a fee award of any fee that has been paid.

 

 

 

Signed Date: 27 ^th November 2017

 

 

 

Deputy Upper Tribunal Judge Grimes