OA018002015

Although this is an appeal by the Entry Clearance officer (ECO) I refer to the parties as they were in the First-tier Tribunal.

The Appellant, a national of Pakistan, appealed to the First-tier Tribunal against a decision of the ECO dated 20 th December 2014 to refuse her application for entry clearance under Appendix FM of the Immigration Rules as the partner of Mr Mohammed Abbas. Judge of the First-tier Tribunal Suffield-Thompson allowed the Appellant's appeal in a decision dated 14 th June 2015. The Secretary of State appeals with permission against that decision.

The judge identified the two main areas of dispute as being whether the Sponsor is employed or self-employed and whether the Sponsor has been self-employed for the entire requisite period or whether he gave up work in December 2013 to become a student. The judge considered all of the evidence before the ECO including the Sponsor's bank statements, his self-assessment tax returns, HMRC SA302 form, a letter from the Sponsor's accountant, business accounts, national insurance bill payment and invoices.

The judge considered the documents and also considered the ECO's guidance (Annex FM Section FM 1.7 paragraph 9.3.7) which states that self-employed income can be cash in hand but it would be expected that the person's business or personal bank statements would fully reflect all gross pre-tax cash income and that flexibility may only be applied where the decision maker is satisfied that the cash income relied upon is fully evidenced by the tax returns and accounts information.

The judge went on to find that the guidance, which had been specifically referred to in the Appellant's application and was therefore before the ECO, showed that the ECO did not consider this policy. The judge considered that the business accounts, the HMRC form and the self-assessment tax return fully evidenced the income [20]. The judge found that the Sponsor was self-employed, not employed and that the Respondent had erred in not finding this to be the case.