OA158172013

This is an appeal by the Secretary of State against a determination of First-tier Tribunal Judge Pirotta, promulgated on 12 th June 2014, in which she allowed the appeal under both the Immigration Rules and Human Rights Convention.

Mrs Hammond is a citizen of the United States of America born on 25 th November 1975. She sought leave to enter as the spouse of a British citizen Mr Philip Hammond. The application was refused on 5 th July 2013 on a number of grounds the only one of which was live before the Judge being that relating to the ability of Mrs Hammond to satisfy the maintenance requirements.

The Judge notes some confusion regarding exactly who was the subject of the application in the mind of the Entry Clearance Officer (ECO) as a result of misleading information being included in the application form. In relation to the maintenance requirements the Judge states in paragraph 19 of her determination:

The Sponsor has established in this appeal by probative evidence that the facts are as stated and that he does meet the income threshold stipulated in Appendix FM. The Sponsor has shown an employment history, working abroad on a pattern with pay which is not liable to be taxed in any country, accounts show his fees were sufficient to meet the income criteria that he had disclosed all relevant information.

The decision to refuse entry on the basis of the Appendix FM criteria was not unreasonable in the circumstances when made but the persistence of that decision is not proportionate as the ambiguities have been cleared and the true facts disclose the parties meet the threshold for income and durability of the relationship. A further refusal in these circumstances would unlawfully interfere with the Article 8 rights to private and family life of the Appellant and the Sponsor.