OA045252014

This is the appeal of the Secretary of State against the determination of First-tier Tribunal Judge Foudy, promulgated 9.9.14, allowing the claimant�s appeal against the decision of the respondent, dated 12.9.13, to refuse entry clearance to the United Kingdom as the partner (spouse) of Mr Ozair Tayyib, a British citizen present and settled in the UK. The Judge heard the appeal on 4.9.14.

The Entry Clearance Officer refused the application under Appendix FM, stating that he/she was not satisfied that the claimant�s relationship with the sponsor is genuine or subsisting or that they intend to live together permanently in the UK.

It follows that the application of the appellant was refused on one ground only, the genuine and subsisting marriage requirement. Judge Foudy considered that only that issue was before the First-tier Tribunal. She considered the evidence and reached the conclusion, for the reasons given, that the relationship between the appellant and the sponsor is genuine and subsisting. The Entry Clearance Officer has not appealed that finding.

However, the grounds of appeal suggest that regardless as to whether a final decision had been made on the financial requirements, �in order to allow the appeal the Judge of the First-tier Tribunal needed to make his own findings on this and as per Kwok On Tong could not allow the appeal unless satisfied that the requirements of all the relevant Immigration Rules were met. This would involve making findings in relation to the financial requirements.�

Permission to appeal was granted by Judge Easterman stating, �In my view, it was arguably not open to the Judge to conclude that the financial aspects were met or agreed and, as a result, before the appeal could be allowed it is certainly arguable that the Judge should have satisfied herself that all the elements required under the rules had been shown.�