(Immigration and Asylum Chamber) Appeal Number: HU /14121/2017
THE IMMIGRATION ACT
Heard at Civil Justice Centre, Manchester
Decision & Reasons Promulgated
On 1st April 2019
On 03 rd April 2019
DEPUTY UPPER TRIBUNAL JUDGE MCCLURE
Mr Zulfiqar Haider
(NO ANONYMITY DIRECTION MADE)
THE ENTRY CLEARANCE OFFICER SHEFFIELD
For the Appellant: Mr Ahmed Counsel instructed by MA Consultants (Blackburn)
For the Respondent: Mr McVitie, Senior Home Officer Presenting Officer
DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Saffer promulgated on the 11 th December 2018 whereby the judge dismissed the appellant's appeal against the decision of the respondent to refuse the appellant entry clearance to the UK as the spouse of a person present and settled in the UK under the Immigration Rules, specifically Appendix FM. The appellant appealed against the decision on the basis that it breached his and his spouse's Article 8 right to family life.
2. I have considered whether or not it is appropriate to make an anonymity direction. Having considered all the circumstances I do not consider it necessary to do so.
3. Leave to appeal to the Upper Tribunal was granted by First-tier Tribunal Judge Landes on 14 th January 2019. Thus the case appeared before me to determine whether or not there was a material error of law in the decision.
Chronology of material events
4. The appellant made an application on 6 October 2016 for entry clearance to the United Kingdom under the Immigration Rules, specifically appendix FM as the spouse of Maryum Ali, the sponsor herein, and on the basis of Article 8 of the ECHR.
5. At the time of the application the sponsor was working for 2 businesses, one of which was Haji's Halal meat. She worked for Haji's Halal meat as a "sales assistant" on a part-time basis. The sponsor had allegedly been working for the business since 4 April 2016.
6. Much though it is not mentioned to any significant extent the appellant was also working for ECON Restaurants Ltd [McDonalds]. There is an employer's letter confirming that she had started working for McDonalds in July 2008.
7. In order to meet the financial requirements of Appendix FM the sponsor had to be earning £18,600. The evidence from HMRC discloses that the sponsor working for ECON Restaurants Ltd had earned £15,159 to the 5 th April 2016 and to 5 April 2017 had earned £15,137. It was the shortfall between those earnings and the financial requirements of the rules that was to be met by the income from Haji's Halal Meat. It appears to be accepted that the sponsor was at the time of the application earning sufficient to meet the rules from the earnings in the two jobs identified.
8. On 17 February 2017, nearly 6 months after the application, the respondent checked the claimed employment with Haji's Halal meat. The proprietor stated that the sponsor no longer worked for the business and had ceased employment in December 2016. The proprietor did not know the date that the appellant had started work with the business.
9. Further information was requested and it was confirmed that only one person was employed by the business, at the time of checking, and the duties of such an individual were basic and did not justify the salary that the sponsor had claimed. The employment did not require any specific expertise. It is unclear whether or not the proprietor was asked what the sponsor had earned in the time that she had been working or whether any checks have been conducted with HMRC.
10. It appears that the respondent sought to contact the sponsor but telephone calls to her mobile number were unanswered. The respondent was seeking to contact the sponsor in late February 2017. According to the evidence given the sponsor was visiting her husband, the appellant, in Pakistan between 13 February 2017 and 22 May 2017. The sponsor gave evidence that she had noted telephone calls from the UK whilst in Pakistan but as no number had been left, she had been unable to contact the persons calling.
11. On 10 August 2017 the appellant's application for entry clearance was refused on the basis that the appellant did not meet the financial requirements of Appendix FM E-ECP.3.1-3.4. In effect the ECO was not satisfied at the date of the decision that the sponsor was earning the income level of £18.600 to meet the requirements of the rules. There was no other reason given for refusing the application.
12. The appellant appealed against the decision. The appeal was listed to be heard on 17 October 2018.
13. By the time of the hearing the sponsor had returned from Pakistan and had resumed working in both businesses. The business Haji's Halal Meat had been taken over. The sponsor was again working for two employers and was again earning over £18,600. On the basis of the evidence submitted it was accepted that the sponsor was earning sufficient to meet the requirements of the rules.
14. I note within the grounds of appeal that it is argued that the appellant only needed to meet the requirements of the rules at the time of the application. As the appellant met the rules at the time of the application it is sought to be argued that the appeal ought to be allowed upon that basis
15. In that respect I draw attention to Rule 27 of the Immigration Rules the material parts of which provide:
' 27 An application for entry clearance is to be decided in light of the circumstances existing at the time of the decision ...'
16. The sole saving from that is where an individual having made an application whilst under 18 attains 18 before a decision is made. That saving does not apply to the present circumstances. Consideration of the appellant's application under the Immigration Rules had to be based upon the facts in existence at the date decision. At the date of the decision the appellant did not meet the requirements of the rules.
17. The leave granted raises the issue that the appeal is under Article 8 and that Article 8 family life and proportionality have to be determined at the date of the hearing.
18. What is being submitted is that as the appeal is being brought on Article 8 grounds the issue should be whether or not consideration of proportionality should be at the date of hearing where an appellant although not meeting the rules at the date of the decision by the respondent, met them at the date of application and at the date of hearing before the Tribunal.
19. In part the reason, for not meeting the rule at the date of the decision, was the delay of the respondent. If the application had been decided within a reasonable time of several days or a month, the appellant and sponsor would have met the Immigration Rules.
20. Mr McVitie on behalf of the respondent accepted that the appellant and sponsor met the requirements of the rules at the time of application and for at least two months thereafter. Mr Mc Vitie also accepted that the appellant and sponsor at the time of the hearing again met the requirements of the rules. Mr McVitie also accepted that the delay on the part of the respondent had resulted in the sponsor travelling to Pakistan to visit her husband, the appellant.
21. Mr McVitie did not oppose the appeal. He accepted taking all the circumstances together that this was a genuine marital relationship and that the decision interfered with that relationship. He accepted that, whilst the decision was in accordance with the law and for the purposes of maintaining immigration control as an aspect of the economic well-being of the country, taking all the circumstances into account including the fact there was delay on the part of the respondent to deal with the appellant's application with reasonable expedition which brought about the appellant no longer meeting the requirements of the rules for a period of time, it was not proportionately justified to refuse the appellant's application.
22. Mr McVitie made the point that the result of maintaining the present decision would mean that all the appellant had to do was to make another application and that that application would be successful in the circumstances. Given that that application would be successful Mr McVitie conceded that it could not be said that the present decision was proportionately justified taking all those factors into account.
23. On behalf of the appellant, Mr Ahmed had nothing to add.
24. As Mr McVitie has conceded that there is a material error of law and accepts on the evidence that the appeal should be allowed, for the reasons set out I rule there is a material error of law in the decision. On the basis of the concessions made I set the decision aside and substituted decision allowing the appeal.
Notice of Decision
25. I set aside the original decision and substituted a decision allowing the appeal.
Deputy Upper Tribunal Judge McClure Date 1 st April 2019