Recent Upper Tribunal Decision
In a recent Upper Tribunal decision, one of our In House Solicitors managed to successfully persuade a Senior Immigration Judge to set aside a decision refusing an appeal to the First Tier Tribunal. The decision was substituted, and the appeal, as brought to the First Tier Tribunal, was allowed under the Immigration Rules.
The case concerned a British national who was trying to sponsor her husband to the UK as the spouse of a settled person. Her husband, being married to a UK Citizen sought entry clearance as a partner under Appendix FM of the Immigration Rules.
This application was refused by an Entry Clearance Officer (ECO). Three reasons were cited for the refusal:
Number 1. There were no photographs submitted after the wedding day.
Number 2. The partner had not met person for over two years. Further, chat records ‘raised concerns.’ The ECO was not satisfied that the relationship was genuine and subsisting or that the parties intended to live together permanently in the UK.
Number 3. The financial aspect of the application was based on the appellant being in receipt of disability living allowance (DLA), but the necessary documentation from the Department of Work and Pensions (DWP) had not been submitted.
The ECO maintained that there were no exceptional circumstances to warrant a grant of entry clearance under Article 8 of the ECHR, outside the Immigration Rules.
The refusal was upheld by a Judge at the First Tier Tribunal in Glasgow. We sought permission to appeal to the Upper Tribunal on the following grounds:
Number 1. That there was no conclusive finding on whether there was a genuine and subsisting relationship.
Number 2. We maintained that the DWP letter provided with the application should have been taken into account.
Number 3. That the best interests of the child were not considered when assessing Article 8.
Our In House Solicitor elaborated on the foregoing during legal submissions and argued that the Judge did not reach a legally sound conclusion in determining the outcome of the appeal. In terms of the relationship being genuine and subsisting, our In House Solicitor made the point that despite some ups and downs, there were no more than may be expected in many relationshipsand that the evidence as a whole showed it to be more likely that not the relationship was genuine and subsisting and that the parties clearly intended to live together in the UK.
We then continued by relying on Appendix FM-SE paragraph 4D (ii), the terms of which dictate that a decision maker ‘may contact the applicant’ where a specified document has not been found. The Home Office argued hard to counter this point, and made the submission that it was not their policy to request missing documents where an application is to be refused for other reasons anyway. Our In House Solicitor countered this by pointing out that the other reason for refusal, pertaining to the subsisting relationship, was weak, contradicted by the evidence and bordering on irrational.
This was enough to persuade the Senior Immigration Judge to set aside the decision of the First Tier Tribunal and now we have a very happy young man who can finally live with his wife and son in the UK!