8. Here the Entry Clearance Officer submits that the First-tier Tribunal has failed to have regard to two of the considerations listed in s117B.
9. Section 117B (2) provides that it is in the public interest that persons who seek to enter the United Kingdom are able to speak English, because persons who can speak English are better able to integrate into society, and are less of a burden on taxpayers. The ECO submits that the Judge failed to have regard to that consideration. As Mr Basra very properly accepts, this ground is misconceived, because Mr Bangalie had evidenced his ability to speak English by submitting the required certificate. That was a matter accepted by the ECO from the outset, and so was not a matter that the Tribunal was required to address.
10. Section 117B(1) provides that the maintenance of effective immigration control is in the public interest. 'Effective immigration control" means, in this context, the ability to comply with the Immigration Rules. Here it was accepted that Mr Bangalie could not do that, since at the date of his application for entry clearance his wife was living with him in Sierra Leone, and so earning substantially below the minimum income requirement set out in Appendix FM, and, it might be said, her former earnings in the UK. Related to that, but not precisely the same calculation, is the requirement at s117B(3) that persons who seek to enter the United Kingdom are financially independent, because such persons are not a burden on taxpayers, and are better able to integrate into society. I say not the same calculation because the Rules require the migrant to show that his or her household income will be at least £18,600 per annum. A household could be earning substantially less but still be "financially independent". The case put for the Entry Clearance Officer by Mr Basra is that the decision below must be set aside for a failure to mention either of these provisions.
11. For Mr Bangalie, Ms Saifolahi submitted that the grounds represented a very narrow, and unrealistic, reading of the decision. The sole ground for refusing Mr Bangalie under the rules was that he and his sponsor could not meet the minimum income requirement. That was the whole point of the case: see paragraph 3 of the First-tier Tribunal's decision. That being accepted by Mr and Mrs Bangalie the only thing left for the Tribunal to decide was whether, as it directed itself in paragraph 3, the decision would have an "unjustifiably harsh" impact on this family. The reasoning that follows, at paragraphs 8 and 9, went simply to that issue. It is therefore nonsensical to suggest that between paragraph 3, where the Tribunal correctly identified the issue, and paragraph 8 where it gave its reasons, the Tribunal forgot why the application had been refused.
12. Although I accept Mr Basra's point that the First-tier Tribunal decision does not expressly refer to s117B of Nationality, Immigration and Asylum Act 2002, I am satisfied on balance that this is not an error such that the decision should be set aside.
13. Firstly because I accept Ms Saifolahi's submission that the Tribunal was plainly well aware that the rules had not been met. As she put it, that was the whole point of the case. Not only does the Tribunal set that out at its paragraph 3, but it reminds itself at the outset of its reasoning on proportionality in paragraph 8.
14. Secondly because this was not in fact a proportionality balancing exercise wholly outwith the rules. The test being applied was that at GEN 3.1 (and 3.2) of Appendix FM: whether this decision would have "unjustifiably harsh" consequences. The public interest is here reflected in that high test, and that is where the Tribunal properly focused its reasoning. The facts underpinning its finding that the test was met include the Sponsor's personal history of the most serious trauma, her poor mental health, that she is now receiving talking therapy in the UK as well as medication, which (see ground 1 above) she found very difficult to access in Sierra Leone; the Tribunal further accepts that were he to be admitted to the UK, Mr Bangalie would be able to offer his wife support, and help her to bring up their daughter. The Tribunal also finds that in view of her health conditions it would not be reasonable to expect the Sponsor to move back to Sierra Leone with her young baby. Those were all factors that the Tribunal was plainly entitled to have regard to in finding that the test at GEN 3.1 was met.
15. Thirdly, in respect of the requirement at s117B(4) that Mr Bangalie demonstrate financial independence, it does not appear to me that the case was ever put by the ECO that this family would need to have recourse to public funds. Until she took her recent maternity leave the Sponsor has always worked, and Mr Bangalie himself is fit and able to do so. Even on the relatively meagre income Mrs Bangalie managed to earn working 'remotely' whilst she was in Sierra Leone, this family would have an income in excess of universal credit levels. In those circumstances the only remaining substance to ground (ii) falls away.
Notice of Decision
16. The appeal is dismissed, and the decision of the First-tier Tribunal is upheld.
17. There is no order for anonymity.
Upper Tribunal Judge Bruce
4 th May 2023