OA016232015

This is an appeal by the Secretary of State for the Home Department (SSHD). However, for the purposes of this decision, I shall refer to the SSHD as the respondent and Mrs Nasrin as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.

The appellant is a citizen of Pakistan, born on 1 April 1961. She applied for entry clearance to the United Kingdom as a partner under paragraph EC-P.1.1 of Appendix FM of the immigration rules . Her application was refused on 18 December 2014 on the grounds that she could not meet the financial requirements in paragraph E-ECP.3.3 since she had not provided the specified evidence required under Appendix FM-SE of the immigration rules to demonstrate that her sponsor's gross annual income met the level required under the rules.

Permission to appeal to the Upper Tribunal was sought by the respondent on the basis that the judge had erred by going on to exercise discretion and apply some form of evidential flexibility to post application evidence which he was not entitled to do.

As I advised the parties, the judge had, in my view, clearly erred in law in his decision under the immigration rules and in relation to the evidential flexibility provisions. He had plainly treated the requirements of Appendix FM-SE as little more than a technicality and had in effect considered the fact that the appellant was able to meet the substantive financial requirements in Appendix FM as sufficient to justify the conclusion he reached.

Having set aside the appellant's appeal on that basis I turned to the grounds of appeal in relation to Article 8 which Judge Khan had not considered, clearly because he had otherwise allowed the appeal under the immigration rules.