OA024842014

No further determination was in fact made and it appears from the papers within the file that although there was what is described as "a cursory review" by an Entry Clearance Manager the Entry Clearance Officer was not prepared to concede the appeal and the decision to refuse entry clearance was maintained.

The claimant appealed against the decision refusing him entry clearance and his appeal was heard before First-tier Tribunal Judge Colvin sitting at Taylor House on 11 March 2015. In a decision dated 1 April 2015 and promulgated shortly thereafter, Judge Colvin allowed the appeal. Her reasons for allowing the appeal included relying on the Entry Clearance Officer's statements within the refusal letter set out above, to the effect that a final determination as to whether the claimant met the income threshold and/or evidential requirements under the Rules may be made at a later stage and that in making any such determination further account would be taken of any further information or documents enclosed with his appeal.

The Entry Clearance Officer now appeals against this decision, permission to do so having been granted by First-tier Tribunal Judge Brunnen on 3 June 2015.

Before me on behalf of the Entry Clearance Officer, Mr Wilding submitted that the judge was not entitled to disregard the evidential requirements under Appendix FM-SE. Although Section 85 of the Immigration and Asylum Act 2002 allowed a court to take account of evidence submitted after the decision which related back to the decision in question this had no bearing on the evidential requirements under Appendix FM-SE which were mandatory. Before an application could be granted there was a requirement to provide the evidence in the form specified and in this case what was required was evidence that the sponsor had had income from the particular employments for a period of six months prior to the date of the application.

I should state at this point that Judge Colvin had found as a fact (and the evidence in support of this finding is very clear indeed on the papers) that the suggestion that the sponsor may have ceased her employment with Panache Outerwear was unfounded. There was evidence before the judge which is before this Tribunal also which makes it quite clear that the employment of the sponsor with this company has been a continuous one since 2013 and on behalf of the Entry Clearance Officer Mr Wilding did not seek to suggest otherwise. It would appear from the evidence contained within the file that on this point the Entry Clearance Officer simply made a mistake.

However, even though the Entry Clearance Officer did not in fact reconsider the decision that had been made, as Mr Wilding pointed out the basis on which the paragraphs had been added to the refusal letter was that this would bite if and to the extent that the Higher Courts upheld the decision which had been made in MM (Lebanon) which if correct would mean that in certain circumstances an income lower than that specified in Appendix FM-SE might be sufficient. In the event the Court of Appeal allowed the Secretary of State's appeal and so this point did not arise.

On behalf of the claimant Mr Saini's primary submission was that as the Entry Clearance Officer had indicated that he may reconsider he should have done so and that this indication effectively meant that he has agreed to waive the specific requirements of Appendix FM-SE. Regrettably I am unable to accept this submission. While it is right that the Entry Clearance Officer certainly has a discretion in certain circumstances to grant entry clearance outside the Rules it is clear from the refusal letter that the Entry Clearance Officer was not saying that he would dispense with the requirements under the Rules. Indeed it is stated specifically within the letter that the point was being taken that "you have failed to provide the specified documents of your sponsor's employment ... [which] documents are specified ... in Appendix FM-SE and must be provided".

Accordingly in my judgment and as I say regrettably on the facts of this case, there was no proper basis upon which Judge Colvin could have allowed the claimant's appeal. The fact is that the claimant did not satisfy the requirements under the Rules on any basis, these requirements are mandatory, and they had not been specifically waived. As I have already said, there was no evidential basis upon which an Article 8 claim could have succeeded, although I do not doubt that had Mr Saini, who appeared before me, been instructed at a much earlier stage an Article 8 claim may very well have been pursued and evidence might have been obtainable for this purpose.

It follows that the decision of the First-tier Tribunal must be set aside and this Tribunal must remake the decision dismissing the appeal. Before formally making this decision, however, I should add that on the evidence which has been considered by this Tribunal it does appear that a further application if made now ought to succeed. It is clear from the evidence that the sponsor has now been working for Panache Outerwear for considerably longer than six months (around two years) and that she has also now been working for McDonald's for considerably longer than the six month period required under the Rules. As I have already noted, her combined income from these employments is now over £20,000 and indeed from the evidence which is before me it appears that her income in the period before the application was made (even though not evidenced in a way which satisfied the evidential requirements under the Rules) was even then above the level required. In these circumstances, especially bearing in mind that the couple have a young son, who is a British citizen, and who ideally ought to be brought up in a family where both his parents are present, I would hope that if a further application is now made in which the evidential requirements are satisfied, this application will be considered very speedily indeed as any further delay should be kept to a minimum.