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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2025-001353 |
|
First-tier Tribunal Nos: HU/62844/2023 LH/06367/2024 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 3 rd of June 2025
Before
UPPER TRIBUNAL JUDGE KEITH
Between
MS VIDDHASHINI BEEHARRY
(NO ANONYMITY ORDER MADE)
Appellant
and
ENTRY CLEARANCE OFFICER
Respondent
Representation :
For the Appellant: Mr S Rungasamy, Solicitor-Advocate of Cutty Sark De Larue Solicitors
For the Respondent: Ms L Clewley, Senior Home Office Presenting Officer
Heard at Field House on 19 th May 2025
DECISION AND REASONS
1. These written reasons reflect the full oral decision which I gave to the parties at the end of the hearing.
Background
2. The appellant appeals against the decision of a Judge of the First-tier Tribunal following a hearing on 16 th December 2024, in which the Judge refused the appellant's appeal on human rights grounds pursuant to Article 8 ECHR. The issues taken in the earlier refusal of entry clearance had been first, whether the couple were in a subsisting relationship. The second question was whether the appellant and/or the sponsor had met the financial requirements of the Immigration Rules as a married couple. The third issue was whether, in any event, the refusal of leave to enter was in breach of the couple's right to respect for family life under Article 8 ECHR.
The Judge's decision under challenge
3. In the skeleton argument presented to the Judge by Mr Rungasamy, who also appeared before them, while the Entry Clearance Officer been concerned about the limited evidence about the relationship, at the hearing before the Judge, the appellant had provided detailed evidence, said to comprise over 2,000 pages in the Tribunal bundle, and which included substantial WhatsApp messages and the couple's witness statement. The appellant accepted that he did not meet the income requirements of the Immigration Rules, but said that in the context of a proportionality assessment, refusal of leave to enter was in breach of the couple's right to respect for family life, particularly in the context that the sponsor, currently in the UK, was awaiting surgery in the UK and so could not relocate to Mauritius, the appellant's country of origin.
4. I do no more than summarise the gist of the Judge's decision. The Judge considered that there were two issues, at §12. First, the respondent's concern was that the relationship was not subsisting. Second, the financial requirement of the Immigration Rules was not met. At §13, the Judge noted, and Mr Rungasamy before me confirmed, that there was no dispute that the appellant was, at the time of the application, and was at he time of the hearing, unable to meet the financial requirements of the Immigration Rules. He had been made redundant in October 2022, had been out of work and at the time of the application had only begun to start work and even then, his salary was not sufficient to meet the increased income requirement of £29,000. The Judge noted at §13:
"On the submitted evidence I find that the appellant is unable to meet the financial requirements and the appeal cannot be successful."
The Judge then went on to include two further paragraphs, the first at §14 began by stating:
"As I have found that the appellant cannot be successful in this appeal, it would be superfluous for me to consider and make a finding on whether the parties are in a subsisting relationship."
In the remainder of the paragraph, the Judge criticised the appellant's evidence, and particularly the names of the parties communicating in the WhatsApp evidence, which the Judge said was not addressed in oral evidence. The Judge concluded, at the end of §14:
"On the submitted evidence, the parties would be in difficulties demonstrating a subsisting relationship, however, as the appeal cannot succeed in any event, due to the financial requirement. I will make no formal finding on the relationship."
At §15, the Judge continued:
"15. It was submitted in the skeleton argument and in oral submissions that the refusal of the application is a disproportionate interference with family life. Given my observations in the above paragraph, and the quality of the supporting evidence of a family life, I consider this submission to be on weak ground. In addition, the human rights implications of the financial requirement was fully aired in the landmark case of MM Lebanon 2017 UKSC 10, which found that the financial requirement for a spouse visa was lawful and in line with article 8 ECHR."
5. The Judge accordingly dismissed the appeal.
The Appellant's appeal and grant of permission
6. The appellant raised two grounds of appeal. The first was that the Judge had failed to consider other factors relating to the financial requirements, and that the income gap was not that wide. There were also medical circumstances about the sponsor's inability to increase his hours whilst he awaited surgery and the willingness of the appellant to seek employment in the UK. There were exceptional circumstances.
7. The second ground was that the Judge had erred in law in not considering making any, or insufficient findings regarding the relationship of the appellant and the sponsor. He had appeared to make partial findings or criticisms of the WhatsApp documents. In any event, the issue of the identity of the WhatsApp communicants had not been raised nor challenged by any of the parties and if it had been, it could have been clarified, but in any event, the appellant had adduced substantial additional evidence, not only the WhatsApp evidence. The Judge had erred in making the financial requirement determinative of the appeal.
8. A Judge of the First-tier Tribunal granted permission on 20 th March 2025. The grant of permission was not limited in its scope.
The Hearing before me
9. I confirmed with the representatives that no Rule 24 reply had been provided. I do no more than summarise the gist of the additional submissions.
The Appellant's position
10. The appellant reiterated that there had been issues taken in the refusal letter as to the claimed relationship and the financial requirement. It was important that the Judge grapple with the genuineness of the relationship, as the judgment might be read as being that there had been adverse findings on the existence of family life, which potentially had serious implications for any future application. In any event, the appellant's appeal was by reference to human rights and the Judge had ignored a structured approach, which ought to have been to start through the lens of the Immigration Rules, and then make findings on family life and the extent to which family life had been interfered with, and the proportionality of the refusal. The appellant had accepted at the beginning of the hearing that she did not meet the financial requirements of the Immigration Rules, and the Judge had erred by dismissing the appeal solely on that basis.
The Respondent's position
11. Ms Clewley argued that the Judge's decision had to be read as a whole. Although there had been a reference to no formal finding on the existence or the genuineness of the claimed relationship, this should properly be read as being in the context of the Immigration Rules and not a finding or a failure to consider that Article 8 had not been engaged. At §15, the Judge had clearly considered the proportionality of the respondent's decision. The Judge was entitled to consider the quality of the evidence, when considering the weakness of any proportionality argument in the appellant's favour, particularly where the income requirement had been held to be lawful in the context of MM (Lebanon). In the alternative, Ms Clewley invited me to consider that any error, if there were such an error, was immaterial, as based on the evidence, the Judge was bound to reach the same decision. I explored with Ms Clewley the question of a lack of challenge to the WhatsApp evidence as to whom the two parties communicated were. In relation to this, Ms Clewley referred me to the case of Abdi & Ors v Secretary of State [2023] EWCA Civ 1455 and in particular at §32, the proposition that any need to put specific issues was qualified if the points were obvious. In this case, the respondent had expressly challenged the genuineness of the relationship and it should have been obvious to the appellant's solicitors that communications which did not name both parties clearly should have been explained more fully in the witness evidence.
Discussions and Conclusions
12. I reminded myself of the need to read the Judge's decision as a whole and that I should not focus on isolated phrases in a judgment. This goes to the core of Ms Clewley's resistance to the challenge, on the basis that the Judge's phrases can only sensibly be read as meaning that the Judge has expressly rejected the existence of family life, within the Article 8 ECHR sense.
13. Despite the clarify of Ms Clewley's submissions, for which I was grateful, the Judge's findings cannot safely be read as analysing and rejecting the existence of family life and interference with it. Taking a step back, the appellant had accepted that she did not meet the requirements of the Immigration Rules. The questions were whether the relationship as claimed was subsisting and the proportionality of refusal of leave to enter. The Judge only reached findings on the one issue which was not in fact in dispute, namely that the appellant did not meet the financial requirements of the Immigration Rules. While at §14, the Judge made criticisms of the evidence as to the nature of the relationship, those criticisms were book-ended, at the beginning and the end of §14, in the way already cited, namely that it would be superfluous to make a finding on whether there was a subsisting relationship, and a reiteration that there was no 'formal finding'. Whilst Ms Clewley submitted that this should be read as limited to an analysis under the Immigration Rules, the appeal was by reference to the appellant's human rights. It also fits uneasily with the contention that whilst that phrasing could only be read fairly as referring as to a finding under the Immigration Rules, nevertheless it was also similarly potentially applicable to the analysis in §15, by reference to Article 8 ECHR. In summary, while the Judge made observations on the evidence (which they were entitled to do), the Judge stated at the beginning and the end of these criticisms that they had not made a finding on the relationship. That was critical in the Article 8 analysis, because the nature and the quality of the relationship is pivotal to consideration of whether Article 8 is engaged and whether a refusal is disproportionate. I also accept Rungasamy's submission that the Judge's decision lacked the structure required for an Article 8 assessment (I reminded myself of the well-known five stage process in R (Razgar) v SSHD [2004] UKHL 27 and Section 117 of the Nationality, Immigration and Asylum Act 2002). In the absence of any finding on family life, the Article 8 assessment was flawed.
14. I turn to the alternative of Ms Clewley's submissions, which is that any error was not material. She argued that because of the Judge's observations, and I emphasise that they are merely observations, about the quality of the supporting evidence, the Judge was entitled to conclude that an argument that refusal of leave to enter would breach Article 8 was weak. However, these were merely observations and even if considered weak, the Judge made no findings. The Judge did not reject the claim of the existence of family life or the quality of it, and there was a clear flaw in the proportionality assessment. In this context, I cannot be satisfied that the failure to make any finding on the existence of family life would have made no difference, as the Judge was bound to reach the same decision.
15. Finally, I reject Ms Clewley's submission that the concern about the identities of the two WhatsApp communicants was so obvious, in the Abdi sense, that it did not need to be raised in the hearing. While such a concern may be justified (about which I have formed no view), it was procedurally unfair that the sponsor never had an opportunity to address them.
Notice of Decision
16. The Judge erred in law such that his decision is not safe and cannot stand. I set it aside, without preserved findings.
Disposal
17. I canvassed the views of both representatives as to how I should dispose of the appeal. I have set aside the Judge's decision without preservation of any findings, and in fact there were few findings in any event because the one issue on which there were findings had never in fact been disputed, namely the level of the appellant's income. Both representatives urged me to remit matters to the First-tier Tribunal. I have borne in mind paragraph 7.2(a) and (b) of the Senior President's Practice Statement. The errors fall into both exceptions from the presumption that I should retain re-making in the Upper Tribunal. One is in relation to the Judge criticising the parties in relation to the WhatsApp evidence which appears never to have been put to either party. I am satisfied that had an effect of depriving the appellant of a fair hearing. Second and more importantly, the nature and extent of the fact-finding is extensive. There are no preserved findings. The Judge has made no findings on the nature of the family life other than to raise criticisms with the evidence. In essence, the whole of the appeal needs to be considered afresh.
18. Accordingly, it is appropriate that I remit matters back to the First-tier Tribunal, to Taylor House, to a judge other than the Judge who reached the decision.
J Keith
Judge of the Upper Tribunal
Immigration and Asylum Chamber
22 nd May 2025