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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/20162/2018

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On 16 December 2020	On 03 March 2021

 

 

Before

 

UPPER TRIBUNAL JUDGE PITT

DEPUTY UPPER TRIBUNAL JUDGE STOUT

 

 

Between

 

PRISCILLA ANKOMAH

(ANONYMITY DIRECTION NOT MADE)

Appellant

and

 

ENTRY CLEARANCE OFFICER - UKVS SHEFFIELD

Respondent

 

 

Representation :

For the Appellant:

For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

 

1.              This is an appeal against the decision issued on 26 July 2019 of First-tier Tribunal Judge Sweet which allowed the appellant's appeal against the refusal of entry clearance as a spouse.

2.              The appellant is a citizen of Ghana, born on 6 April 1972. Her daughter, Emanuella, born on 16 August 2011, is her dependant in this matter.

3.              The appellant and her UK sponsor, Mr Alex Ankomah, were married in the UK in 2001. They have three children together. While Ms Ankomah was working abroad as a diplomatic officer for the Ghanaian government, Emanuella lived with her and the two older children lived with their father in the UK.

4.              On 18 May 2018 the appellant applied for entry clearance as a spouse with her daughter as her dependant. The application was refused on 20 August 2018. The decision found that the appellant could not meet a number of the provisions of the Immigration Rules.

5.              Firstly, the respondent found that appellant had not provided valid medical certificates showing that she and her daughter had undergone screening for tuberculosis and did not have the disease.

6.              Secondly, although it was accepted that the appellant had a degree from University of Ghana, she did not provide a UK NARIC certificate to demonstrate that this had been taught in English.

7.              Thirdly, the respondent found that the sponsor's financial documents did not meet the requirements of Appendix FM-SE. He had to show that he had a gross income of at least £22,400 in order to support his wife and daughter. In order to do so, he relied on his employment at the Greenwich School of Management (GSM) and at Tesco supermarket. In relation to those employments, the sponsor had to comply with the following requirements of Appendix FM-SE set out in paragraph A1(2):

2. In respect of salaried employment in the UK (except where paragraph 9 applies), all of the following evidence must be provided:

(a)           Payslips covering:

 

(i)             a period of six months prior to the date of application if the person has been employed by their current employer for at least six months (and where paragraph 13(b) of this Appendix does not apply): or

 

(ii)          any period of salaried employment in the period of twelve months prior to the date of application if the person has been employed by their current employer for less than six months (or at least six months but the person does not rely on paragraph 13(a) of this Appendix), or in the financial year(s) relied on by a self-employed person.

 

(b)          A letter from the employer(s) who issued the payslips at paragraph 2(a) confirming:

 

(i)             the person's employment and gross annual salary;

 

(ii)          the length of their employment;

 

(iii)        the period over which they have been or were paid the level of salary relied upon in the application: and

 

(iv)        the type of employment (permanent, fixed term contract or agency).

 

(c)           Personal bank statements corresponding to the same period(s) as the payslips at paragraph 2(a), showing that the salary has been paid into an account in the name of the person or in the name of the person and their partner jointly.

 

8.              The respondent found that these requirements were not met. The sponsor had not provided a wage slip for the Tesco employment for May 2018. The sponsor's NatWest bank statements showed payments in line with the Tesco pay slips provided but did not cover May 2018. Further, there was no employer's letter as required by paragraph 2 (b).

 

9.              Also, the sponsor had not provided wage slips from GSM for January, February and March 2018. The Santander bank statements showing payments from GSM covered the periods July 2016 to May 2017 and January 2018 to March 2018 and so did not cover the last six month period prior to the application. There was no employer's letter from GSM.

10.          The appellant appealed against the decision on 2 October 2018 and on 22 January 2019 the Entry Clearance Manager (ECM) reviewed the case. The Entry Clearance Manager (ECM) considered the additional documentation that had been provided by then but was satisfied that the original decision to refuse was correct. The appellant had supplied tuberculosis certificates but not in the required format. The absence of a NARIC certificate had not been remedied. Regarding the financial documents, the requisite payslips from Tesco had been provided but there was no bank statement showing the salary deposit for 6 April 2018. Payslips from GSM for January, February and March 2018 were still missing. A job offer dated 1 March 2016 from GSM has been submitted but did not meet the requirements of paragraph 2(b) and there was no employer letter from Tesco.

11.          The appeal came before First-tier Tribunal Judge Sweet on 17 July 2019. At that hearing the appellant's sponsor attended to present her case and there was no representation for the respondent. The judge noted that on 1 May 2019 the appellant had provided further evidence beyond that provided in support of the original application and to the ECM. The judge found that the appellant had provided the requisite tuberculosis certificate and UK NARIC certificate. The respondent did not seek to dispute those findings before us.

12.          The First-tier Tribunal also indicated in paragraph 3 of the decision that the appellant had provided NatWest bank statements in respect of earnings from Tesco and payslips from January and March 2018 from GSM.

13.          The judge made the following findings in paragraphs 14 and 15:

"14. Having considered the documentation now provided, including the oral evidence of the appellant's sponsor, I am satisfied that he does meet the financial requirements, as his combined annual earnings from his two employers are approximately £40,000. These figures exceeded the necessary figure of £18,600 and £3,800 required under the Immigration Rules. I am also persuaded that the appellant (and her daughter) has met the TB screening requirements and, as her degrees were conducted in the English language, the English language requirements.

15. If I concluded that the appellant had not met the requirements of the Immigration Rules, I would have allowed this GEN.3.1. and GEN.3.2. of Appendix FM in respect of the exceptional circumstances pertaining under Article 8 ECHR, because there are clearly very harsh consequences for the family not to be able to live together."

The judge went on to allow the appeal under Article 8 ECHR.

14.          The respondent appealed against that decision and was granted permission to appeal by the First-tier Tribunal on 23 October 2019. The grounds maintained that the decision failed to provide adequate reasons for finding that the sponsor had met the provisions of Appendix FM-SE. There was also no reasoning explaining how there could be unjustifiably harsh consequences capable of outweighing the public interest if the Immigration Rules were not met.

15.          We found that the respondent's grounds had merit. That was so even where Mr Whitwell conceded that the sponsor had provided the First-tier Tribunal with the required payslips and bank statements covering his Tesco employment and for the GSM employment other than the payslip for February 2018 (for which there was no payslip as Mr Ankomah did not work, and so was not paid, every month).

16.          We found nothing in the materials that had been before the First-tier Tribunal showing that the sponsor had provided a letter from either employer that met the requirements of paragraph 2(b). The letter dated 1 March 2016 from GSM was a job offer and did not refer to the length of employment or the period over which the sponsor had been paid the level of salary relied upon in the application. There was no letter from Tesco before the First-tier Tribunal. The decision of the First-tier Tribunal only states that the judge was "satisfied" that the financial requirements were met without any detail or clarity as to how that could have been so.

17.          We were also unable to identify anything that was capable of supporting the finding of the First-tier Tribunal as to there being unjustifiably harsh circumstances if entry clearance was not granted. The decision does not refer to any specific matters that might do so and there was nothing the materials capable of doing so.

18.          It was therefore our conclusion that the decision did not provide adequate reasons explaining how the judge reached the conclusions he did. We found that these matters amounted to a material error on a point of law such that the decision had to be set aside to be remade.

19.          After canvassing the views of the parties, we reserved the decision re-making the appeal until after the appellant had been afforded the opportunity to provide the employer's letters complying with paragraph 2(b). She was also directed to explain the missing pay slip from GSM for February 2018. The respondent was to be afforded the opportunity to comment on the appellant's additional materials.

20.          The appellant provided a new bundle of materials comprising 28 pages under cover of an email dated 15 January 2021. The respondent did not respond to the direction to comment on those materials by 8 February 2021.

21.          The appellant's further materials did not include an employer letter from either GSM or Tesco capable of meeting the requirements of paragraph 2(b). The appellant continues to rely on a letter dated 1 March 2016 from GSM which was provided for the First-tier Tribunal hearing which as we have noted above is only a job offer and does not set out the information required by Appendix FM-SE. The letter does not identify the length of the sponsor's employment or refer to the period over which the sponsor was paid as relied on in the application. The sponsor has provided a letter from Tesco dated 31 May 2016 which is also a job offer and does not set out the sponsor's gross annual salary, the length of his employment or identify the salary paid over the period relied on in the application. This information is also not included in the statements of Terms and Conditions of Employment that the sponsor has provided for each employment.

22.          We found that the requirements of Appendix FM-SE were not shown to have been met at any material time, therefore. This is not a case where the appellant has shown that if she were to apply now that the Immigration Rules would be met and so that that factor may be weighed positively in the Article 8 ECHR proportionality assessment. The new materials contained nothing showing anything that could approach the threshold of unjustifiably harsh consequences if entry clearance was not granted or that the decision to refuse entry clearance could be said to be a disproportionate breach of Article 8 ECHR.

23.          For these reasons, we found that the Article 8 ECHR appeal had to be dismissed.

Notice of Decision

24.          The decision of the First-tier Tribunal discloses an error of law and is set aside to be remade.

25.          We remake the appeal under Article 8 ECHR as dismissed.

 

 

Signed: S Pitt Date: 21 February 2021

Upper Tribunal Judge Pitt