OA059702013

The Appellant appealed with permission granted by First-tier Tribunal Judge Parkes on 5 March 2014 against the determination of First-tier Tribunal Judge Newberry who had allowed the Appellant �s appeal against the Entry Clearance Officer�s decision dated 5 February 2013 to refuse to grant the Respondent leave to enter as a spouse under Appendix FM of the Immigration Rules. The determination was promulgated on 13 February 2014.

The Respondent is a national of Turkey , born on 11 May 2012. She is the dependant daughter of Mrs Derya Savul, her mother who was born on 1 November 1980. Their appeals to the First-tier Tribunal were linked. The judge found that the Respondent�s sponsor, her father, was earning income through his business in excess of the relevant minimum threshold laid down in Appendix FM, accepting by implication if not expressly that the sponsor had provided the relevant specified evidence laid down in Appendix FM-SE.

Permission to appeal to the Upper Tribunal as sought by the Appellant was granted by Judge Parkes because he considered that it was arguable that the judge had erred by failing (a) to consider Appendix FM-SE 7, which specified that 12 months of trading had to be shown where reliance was placed on earnings from self employment and (b) to note that the relevant date for the First-tier Tribunal was the date of the application, not the date of decision or any subsequent review.

Mr Tufan for the Secretary of State relied on the grounds of onwards appeal and the terms of the grant of permission to appeal. It was a simple case where the specified documents had not been provided. The solution was for a fresh entry clearance application to be made once the necessary evidence of 12 months earnings from self employment was available.

Mr Rendle for the Respondent agreed that the basic premise had to be showing compliance as at the date of the application. He submitted that it was possible to view the entry clearance application as an ongoing process in that the original decision invited a response to which a second decision was the result. The judge had received sufficient evidence to make a positive finding. There was no material error of law.