OA097412014

The judge's assessment of this matter is to be found at paragraphs 22 and 23 of the decision. The judge quite properly recognises that under Appendix FM-SE, the Tribunal must look at the financial circumstances at the date of the application and the six months leading up to that date. The judge quoted verbatim from Appendix FM-SE D(a) as follows:

"In deciding an application in relation to which this Appendix states that specified documents must be provided, the Entry Clearance Officer or Secretary of State ("the decision maker") will consider documents that have been submitted with the application and will only consider documents submitted after the application where sub-paragraph (b) or (e) applies."

These paragraphs (b) and (e) are commonly referred to as the evidential flexibility criteria, pursuant to which the ECO may (and in some circumstances must) request additional documents. The judge turned his mind to both of them and came to the conclusion that in this instance neither was applicable. He was clearly of the view and it is undisputedly correct that the evidential flexibility criteria were of no application. There is no cross-appeal in relation to this issue.

Those latter two points have no bearing on the interpretation to be given to Appendix FM-SE D which has been routinely interpreted in such a way that a First-tier Tribunal when hearing an appeal should be limited (save where one of the prescribed exceptions applies) to the evidence which was submitted with the application. Any other conclusion would be wholly inconsistent with the natural meaning of Appendix FM SE and indeed would defeat its very purpose.

The appeal has been resisted in commendably brief submissions which recognise the reality that this ground is properly made. The admission into evidence of post-application documents was plainly error of law. In the circumstances this appeal must be allowed.