This unreported appeal was heard in the Upper Tribunal (Immigration and Asylum Chamber), (“UT”) before Deputy Upper Tribunal Judge McGinty on 19th March 2019 which challenged the decision of the First-tier Tribunal (“FtT”) Judge Woolley who had dismissed the Appellant’s human rights appeal on the basis of a failing to meet the financial requirement under Appendix FM of the Immigration Rules.
The Appellant, an Indian national married to a British national, applied for entry clearance as the partner of the Sponsor under Appendix FM of the Immigration Rules. He had previously lived in UK as a Tier 4 (General) Student.
Appendix FM of the Immigration Rules required a Sponsor to meet financial requirements by demonstrating a gross income of at least £18,600 per annum.
The Sponsor’s earnings were £9,125 per annum. However, she was also in receipt of money from Coventry Social Services for her role, held since 2011, a court-appointed special guardian, with parental responsibility, for two children aged 14 and 12. In that role, the Sponsor received £12,000 per annum.
The Sponsor’s special guardianship order did not remove the parental responsibility of the biological parents but meant that the Sponsor had primary responsibility for the two children. Evidence was also presented to demonstrate that the children had supervised visits with their biological mother every six weeks
Findings of the FtT
The FtT judge found that the money from the special guardianship allowance could not be taken into account under those provisions of the Immigration Rules when determining the level of the Sponsor’s income.
It was argued on behalf of the Appellant, and the noted by the judge, that GEN 3.1 of Appendix FM should apply to the receipt of the income from the special guardianship.
GEN 3.1 of the Immigration Rules stated as follows:
a) the financial requirement in paragraph E-ECP 3.1, E-LTRP 3.1 (in the context of an application for limited leave to remain as a partner), E-ECC 2.1 or E-LTRC 2.1 applies and is not met from the specified sources referred to in the relevant paragraph; and
b) It is evident from the information provided by the Applicant that there are exceptional circumstances which could render refusal of entry clearance or leave to remain a breach of Article 8 of the European Convention on Human Rights (ECHR), because such refusal could result being unjustifiably harsh consequences for the Applicant, their partner or relevant child; then the decision maker must consider whether such an actual requirement is met to be taken account of the sources of income, financial support or funds set out in paragraph 21A(2) of Appendix FM-SE .”
The FtT judge ultimately concluded that as there had not been a breach of Article 8 ECHR and the refusal by the Secretary of State for the Home Department (SSHD) did not result in unjustifiably harsh consequence for the Appellant, Sponsor or child, he was not allowed under GEN 3.1 to take account of other sources of income under paragraph 21A(1).
Permission to appeal was granted to the Appellant who sought to argue that the argued that the judge wrongly made a decision under the Rules without properly considering GEN 3.1 of Appendix FM of the Immigration Rules and misapplied that provision in the circumstances.
Findings of the UT
Before the UT the SSHD conceded that the Sponsor’s role has a special guardian with parental responsibility for two minor children amounted to exceptional circumstances
The SSHD accepted that the provisions of GEN 3.1 did not require the FtT judge to conduct a full Article 8 assessment outside of the immigration rules and reach findings on whether or not there would actually be a breach of Article 8 ECHR in that regard. In consideration of whether exceptional circumstances existed in this case which could render refusal of entry clearance or leave to remain a breach of Article 8 ECHR because of unjustifiably harsh consequences, the UT found the judge did not properly deal with that issue. The FtT judge did not apply the correct test and had not properly considered the effect of the special guardianship. This amounted to a material error of law.
The decision of the FtT Judge Woolley was therefore set aside in its entirety and the case remitted for rehearing to the FtT and before any FtT Judge other than FtT Judge Woolley.