OA087972013

This is the appeal of the Entry Clearance Officer against the determination of First-tier Tribunal Judge Cox promulgated 15.7.14, allowing the claimant�s appeal against the decision of the respondent, dated 11.3.13, to refuse his application made on 21.12.12 for entry clearance to the United Kingdom as the partner of Qurat Ul-Ain Jamil, a British citizen present in the UK. The Judge heard the appeal on 2.7.14.

The relevant background can be briefly summarised as follows. The application was refused because the Entry Clearance Officer was not satisfied that the claimant met the financial requirements and specifically that he failed to provide the specified evidence under Appendix FM-SE.

In granting permission to appeal, Judge Saffer was �satisfied that it is arguable that there is merit in the grounds for the reasons set out in the application, and in particular the failure to apply Ukus (discretion: when reviewable) [2012] UKUT 307 (IAC) , which says that in such cases it should not be determined substantively but should be remitted back to the respondent for failing to exercise discretion.�

In summary, Judge Cox considered section D of Appendix FM-SE and acceded to the submission that D(d)(iii) and (e) applied and that it was in the circumstances open to the Tribunal to dispense with the strict requirements of FM-SE. The judge was satisfied that the sponsor�s income exceeded �18,600 and that she had satisfactorily explained why she could not produce a bank statement showing the salary, which was paid in cash, paid into the account. The judge also found that the missing information from the employer�s letter was easily identifiable from the wage slips and bank statements.

However, there is a more serious difficulty with the decision of the First-tier Tribunal. That is that Judge Cox purported to exercise a discretion the Tribunal did not have.