OA153462012 & ors

This is an appeal with permission by the Entry Clearance Officer against a decision by Judge of the First-tier Tribunal A D Smith MBE, TD allowing these appeals. The respondents are a mother and two children, all nationals of Iraq.

The appeal to the First-tier Tribunal was brought against decisions of the Entry Clearance Officer refusing the respondent�s entry clearance as the spouse and children of Mr Faik Tahir Qazi, who is the sponsor for their applications for entry clearance and is present and settled in the UK. There are two older children of the family, who were originally parties to the appeal, but their appeals were withdrawn before the First-tier Tribunal.

The Judge of the First-tier Tribunal recorded that it was agreed between the parties that the level of income required to constitute adequate maintenance was �312.53 per week. This figure was derived by taking the level of income support for a couple with two children and adding to it �15.05 for mortgage payments and �38.89 per month for council tax. The judge noted that although these were the figures agreed by the parties for mortgage payments and council tax they appeared to be the wrong way round but nothing turned on this.

Following the grant of permission to appeal the Entry Clearance Officer wrote to the Tribunal pointing out that there was an error in the calculation in the application for permission to appeal. The shortfall alleged of �16 had been multiplied by 108 weeks but the figure should have been multiplied by 117 weeks, which was the number of weeks in a 27 month period. If the 117 week period had been used then the amount required from the sponsor�s savings was �1,872.

At the hearing before me Mr Dewison, appearing for the Entry Clearance Officer, argued that it was inappropriate for the judge to average out the sponsor�s earnings over 3 years. The date by reference to which earnings should be calculated was the date of decision. The judge�s approach was wrong and arrived at a figure which was not representative. Mr Dewison hypothesised that if within the 3 year period the sponsor had been unemployed for a period then the average earnings over the 3 years would be much less.