OA199782012

This appeal comes before me following the grant of permission to appeal to the ECO by Designated First-tier Tribunal Judge McClure on 14 August 2013. For the sake of convenience I continue to refer to the ECO as the respondent and to Mrs Thi as the appellant. No anonymity order was made by the First-tier Tribunal and none has been requested of the Upper Tribunal.

The appellant is a Vietnamese national born on 19 December 1971 who seeks entry clearance as a partner under Appendix FM of the rules. The sponsor is Tan Lac. The application was made on 23 July 2012 but was refused on 27 September 2012 under paragraph EC-P.1.1(d) and E-ECP.3.1 because the specified documents in Appendix FM-SE were not produced and the financial requirements were not met.

The appeal came before First-tier Tribunal Judge Adio at Hatton Cross on 3 July 2013. The sponsor attended and gave oral evidence and the judge allowed the appeal. On 17 July 2013 the respondent sought permission to appeal.

The hearing then came before me on 31 October 2013. I heard submissions on whether or not the judge had made an error of law.

In response, Mr Douglas submitted that the rules had changed and that they now required the document to be submitted �if available�. As it was not available, it being non existent, it could not have been submitted and the appellant should not be penalised for that. He submitted that the rules had changed to allow this additional phrase and that it was for the Secretary of State to show that this had not been the rules at the relevant time.