OA098682014 & OA098692014

First-tier Tribunal Judge Adio dismissed the appeals making his findings further to Appendix FM, stating that the appellants were not exempt from the financial requirements as defined under paragraph E-ECP.3.3.1. Judge Adio appeared to accept that the respondent "noted that the sponsor needs a gross income of at least £18,600 per annum or if applying with one child £22,400 and an additional £2,400 for each additional child".

Permission to appeal was filed, stating that the issue of discretion in relation to the relevant specified documents that the entry clearance should have considered was not exercised by the Entry Clearance Officer and further the matter should have been considered under paragraph 297 of the Immigration Rules and it was not. Further Article 8 was not considered.

It was apparent from the hearing that both the children remained in Nepal whilst both parents are in the UK. Mr Hawkin and Mr Walker agreed that the relevant Rule was paragraph 297 of the Immigration Rules and not Appendix FM which was applied by both the Entry Clearance Officer and Judge Adio. The relevant Rule would be Appendix 297(i)(f).

The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007) and remake the decision under section 12(2) (b) (ii) of the TCE 2007.

The appeal is allowed to the extent set out above in that it should be returned to the Entry Clearance Officer for a lawful decision.