OA029762013

The appellant is the Entry Clearance Officer in Dhaka ("the Entry Clearance Officer"). The respondent is a citizen of Bangladesh who was born on 1 March 1986 ("the claimant"). The Entry Clearance Officer has been given permission to appeal the determination of First-Tier Tribunal Judge Elson MBE ("the FTTJ") who allowed the claimant's appeal against the Entry Clearance Officer's decision to refuse him entry clearance to the UK as the dependent spouse of a Points-based System migrant under the provisions of paragraph 319C of the Immigration Rules.

The FTTJ concluded found that the marriage was genuine and subsisting, that the claimant came to the UK with the intention of studying but that he had difficulties with his studies and that his command of the English language was unlikely to be at the highest level. She found that the claimant made mistakes and did not deliberately seek to mislead the Entry Clearance Officer. She concluded that the claimant had established that he met the requirements of paragraph 319 and allowed the appeal under the Immigration Rules.

In reply to my question Mr Khan confirmed that there has been no witness statement from the claimant. The evidence as to what happened at the interview was given by the sponsor at second-hand on the basis of what the claimant told her.

I find that it was not open to the FTTJ to make these findings in relation to the interview report or to conclude that it was of limited value such that she should not give it full evidential weight. The error is compounded because the FTTJ then went on to examine the report as the basis for her conclusion that the claimant made mistakes and did not deliberately seek to mislead the entry clearance officer.

I find that the FTTJ erred in law and I set aside her decision. However, the Entry Clearance Officer has not sought to dispute the FTTJ's findings except in relation to the interview report and I preserve her other findings of fact including the finding that the sponsor was a credible witness.