Asma Begum v The Secretary of State for the Home Department

The appellant is a citizen of Bangladesh , born in 1995. On 12 February 2018, she applied for entry clearance to the United Kingdom under Appendix FM to the Immigration Rules, on the basis of her family life with Shahin Ahmed, her British citizen husband, who is present and settled in the United Kingdom. The couple were married in Bangladesh in December 2016.

The relevant provision for our purposes of Appendix FM are as follows:-

Appendix FM-SE (Family members – specified evidence) sets out the specified evidence which applicants need to provide , in order to meet the requirements of the rules contained in Appendix FM . At paragraph 13 of Appendix FM-SE (calculating gross annual income under Appendix FM) , we find the following:-

On 7 June 2018, the respondent refused the appellant’s application for entry clearance. The letter of refusal had this to say about t he eligibility financial requirement, which was the only matter at issue:-

The respondent did not consider that there were exceptional circumstances in the appellant’s case , which would render refusal a breach of Article 8 of the ECHR because it could or would result in unjustifiably harsh consequences for her or her family. The respondent therefore refused the application.

It is common ground that th e refusal of the application constituted the refusal of a human rights claim made by the appellant. Accordingly, the refusal gave rise to a right of appeal to the First-tier Tribunal under section 82 of the Nationality, Immigration and Asylum Act 2002. Section 113(1) provides that a “human rights claim” means a claim made by a person that (amongst other things) to refuse her entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998. Section 6 prohibits a public authority from acting contrary to the ECHR. Section 84(2) of the 2002 Act states that an appeal under section 82(1)(b) (Refusal of a human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the 1998 Act.

The appellant appealed to the First-tier Tribunal. Following a hearing at Taylor House on 17 May 2019, First-tier Tribunal Judge Gibb dismissed the appellant’s appeal in a decision promulgated on 24 June 2019. A t paragraph 6 of his decision, the judge noted that any matters relevant to the substance of the decision under appeal can be considered by the First-tier Tribunal, including those arising after the date of decision (section 85(4) of the 2002 Act).

The judge heard evidence from the sponsor, who was cross-examined. The sponsor told the judge that he had stopped working for Renowned Investments Ltd in April 2018 and had become self-employed.

Under the heading “Findings” the judge said as follows:-

At paragraph 18, the judge said that he had decided to dismiss the appeal . His reasons can be summarised as follows. The judge considered it to be “a matter of considerable concern” that considerable time and effort had been spent in showing that the respondent’s reasons for refusing the application were unjustified. This was because , in the judge’s view, the appeal “could not succeed given the change in the sponsor’s circumstances since the date of decision”. The entire focus of the appellant’s representatives had been on the position at the date of the respondent’s decision, and on countering the points made by the respondent in the letter of refusal. The judge considered that the representatives had “missed the glaringly obvious point that successfully countering the refusal would not lead to an outcome in the appellant’s favour, where the sponsor no longer met the financial requirements by the date of the hearing”. The judge said that “even in the days when there were appeals that focussed on the date of decision, it was still always the case that entry clearance would not have been granted if relevant circumstances had altered following the date of decision”.

At paragraph 20, the judge concluded that, in the light of his findings, “the decision [of the respondent] was not justified, in that the appellant has established that he was employed as claimed. The suitability point falls with the point about his earnings”. The judge acknowledged that this “may lead the appellant and the sponsor to feel a sense of injustice, in that if the decision had been correct, entry clearance might have been granted”. Nevertheless, according to the judge, from the moment the sponsor left his job in April 2018, “the entire legal position changed”. Success for the appellant was, thereafter, “going to depend on the sponsor gathering together and presenting sufficient evidence to establish earnings over the required level”.

At paragraph 21, the judge a ccepted that there “may be certain cases where an appeal can succeed on Article 8 grounds even where the financial and specified evidence requirements are not met”. The judge observed, however, that no submission to that effect had been made in the present case. There was no mention in the witness statements or other documents “that could form the basis of an exceptional circumstances Article 8 argument”.

Permission to appeal to the Upper Tribunal was refused by the First-tier Tribunal on 13 September 2019. On 10 October 2019, the Upper Tribunal refused the appellant’s renewed application for permission. The grounds of application were drafted by the appellant’s present solicitor, Mr Seelhoff, who had not appeared before First-tier Tribunal Judge Gibb.

Mr Seelhoff’s grounds submitted that the First-tier Tribunal j udge had failed to follow the process of question s and answer s set out by Lord Bingham in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 at paragraph 17 ; [2004] Imm AR 381 . The questions are:-

The grounds drew attention to the fact that , in paragraph 13 of Appendix FM-SE , where a person is in salaried employment in the United Kingdom, what is required to be shown is evidence of such employment, with the same employer, for at least six months; and evidence of pay throughout the period of the six months prior to the date of application, at a level of gross annual salary that equals or exceeds the level relied upon. The gross amount of any specified non-employment income is also to be determined by reference to income received in the twelve months prior to the date of application.

In the light of the positive findings by First-tier Tribunal Judge Gibb , the grounds contended that the appellant had satisfied the requirements of the relevant Immigration Rules. Th is meant that the respondent could not point to the importance of maintaining immigration control s as a factor weighing in her favour , in striking the proportionality balance under ECHR A rticle 8. In refusing to allow the appeal, the judge had effectively imported into the R ules a requirement that is not present in them; namely , a requirement to maintain income at the specified level throughout the duration of the period of initial entry clearance/leave to remain as a partner under Appendix FM. According to the grounds, the “requirement is clearly only to prove an ability to earn at the level at the date of application”.

Following the refusal of permission by the Upper Tribunal, the appellant sought judicial review of that refusal, by application to the High Court under CPR 54.7A. On 10 December 2019, Mostyn J granted permission to bring judicial review. Citing the case of Marbury v Madison (1803) 5 U.S. (1 Cranch) 137 for the proposition “that where there is a right there must be a remedy”, Mostyn J said:-

Following the quashing, by High Court O rder, of the refusal of permission, the application for permission accordingly comes before the Upper Tribunal to be decided afresh. With the helpful consent of Ms Cunha, we found that permission should be granted to the appellant. Having granted permission orally, dispensing under rule 7 of the Tribunal Procedure (Upper Tribunal) Rules 2008 with the relevant procedural requirements, we proceeded to hear submissions from Mr Seelhoff and Ms Cunha on the substantive appeal.

Ms Cunha confirmed that the respondent d id not take issue with the conclusion of the First-tier Tribunal Judge that the decision taken in respect of the Immigration Rules was wrong, in that, as at the date of application, the appellant did, in fact, meet the requirements of those R ules. The question , therefore, is whether the judge was right to hold that the human rights appeal nevertheless fell to be dismissed. It is plain that the judge reached his conclusion because of his view that “the entire legal position changed” when the sponsor left his salaried employment in April 2018 and became self-employed.

T here can be only two reasons why the First-tier Tribunal Judge would have be en entitled to reach such a conclusion. The first would be if the R ules were framed in such a way that the appellant not only had to show her husband was in the requisite employment at the date of application (and had been in it for the past six months) , but also that h e had continued in that employment, not only at the date of the respondent’s decision but also at the date of the hearing of the appellant’s appeal. In th is scenario, the appellant’s failure to meet the requirements of the R ules would have meant she could only succeed in her human rights appeal by showing that her exclusion from the United Kingdom would still represent a disproportionate interference with Article 8 family life. In other words, she needed to make a case for admission on human rights grounds , outside the R ules. As the judge remarked, no such case was advanced on behalf of the appellant.

The second reason why the judge would have been entitled to dismiss the appeal would be if he had reason to conclude that, even though the appellant met the requirements of the R ules, it w as nevertheless not a disproportionate interference with A rticle 8 rights to refuse her admission.

It is clear from paragraphs 19 and 20 of his decision that the First-tier Tribunal Judge based his dismissal of the appeal on the first reason . He was of the view that the Immigration Rules relating to income from employment ha ve the “ ambulatory ” character described in paragraph 20 above .

At the end of paragraph 19 of his decision , we have seen how the judge recalled that , even in the days when appeals were focussed on the date of decision, it was still the position that entry clearance would not be granted , if relevant circumstances had altered. This was, however, b ecause the pre-July 2012 R ules possessed an ambulatory or forward-loo k ing nature. An applicant had to show that there would be adequate maintenance, without recourse to public funds, during the currency of the leave granted by the respondent. The question is whether that is still the position.

It is wel l- established that the Immigration Rules are to be given their ordinary meaning : Mahad v Entry Clearance Officer [20 09 ] UK SC 16 ; [2010] Imm AR 203 . As we have seen , E-ECP.3.1. requires the applicant to “provide specified evidence from the sources listed … of … a specified gross annual income of at least … £18,600”. E-ECP.3.2. provides that only certain specified sources of income will be taken into account “when determining whether the financial requirement in paragraph E-ECP.3.1. is met”. None of these provisions can, in our view, properly be construed as imposing any sort of ambulatory requirement to continue in the relevant employment, beyond the date of application. That conclusion is reinforced when on e examines paragraph 13 of Appendix FM-SE. Th is paragraph is firmly focussed on the past six months or, in some cases, twelve months, preceding the date of application. The only exception is at paragraph 13(c) and (d), where the applicant’s partner has been outside the United Kingdom but is returning to salaried employment within it. Even here, however, the reference to paragraph 15(b) of Appendix FM-SE focusses attention on relevant earnings over the previous twelve months. Particularly g iven the amount of detail in paragraph 13, it would have been perfectly possible for the respondent to make specific provision if, in the case of the partner’s employment in the United Kingdom, the employment in question (or some at least equally remunerative alternative) has to subsist beyond the date of application. One looks in vain for any such provision.

The terms of the financial requirements in E-ECP.3.1. also stand in stark contrast with those of E-ECP.3.4., w here the applicant “must provide evidence that there will be adequate accommodation, without recourse to public funds, for the family …” (our emphasis). E-ECP.3.4. is, thus, a forward-looking provision, with the result that any materially adverse change in the accommodation position after the date of application will amount to a change in circumstances.

What this means is that, if any such change in the accommodation relied on occur s before the respondent makes her decision on the application, paragraph 27 of the Immigration Rules entitles the respondent to refuse the application. Paragraph 27 provides that an “application for entry clearance is to be decided in the light of the circumstances existing at the time of the decision …”. I n addition, if a person is granted entry clearance (and, thereby, leave to enter) but an I mmigration O fficer establishes, at the port of entry, that “there has been such a change in the circumstances of that person’s case since the leave was given, that it should be cancelled”, paragraph 321A of the Immigration Rules provides for the cancellation of th e leave.

Since the Immigration Rules have been framed in such a way as to fix the relevant financial requirements at the date of application, it follows that rule 27 does not enable the respondent to refuse an application on the basis that the evidenced employment has ceased, after the date of application. Likewise, paragraph 321A does not enable the respondent to cancel leave to enter at port, since there has been no change of circumstances in this scenario.

Although the present case does not involve the points-based system of Immigration Rules (“PBS”) , the provisions of Appendix FM-SE share much in common with it, so far as concerns the highly prescriptive nature of the specified evidence requirements. In the context of the PBS, t he Higher Courts have been at pains to explain that the reduction in administrative discretion and in the risk of inconsistent decision-making comes at a price : see eg Mandalia v S ecretary of State for the Home Department [2015] UKSC 59 , para graph 2; [2016] Imm AR 180 ; R ( Pathan ) v Secretary of State for the Home Department [2020] UKSC 41, para graph s 1, 65, 68; [2021] Imm AR 235; R (Taj) v Secretary of State for the Home Department [2021] EWCA Civ 19, paragraph 57. An individual who might objectively be regarded as worthy of l e ave to enter or remain – and who may under the p revious regime have merited the exercise of discretion in their favour - can nevertheless now be denied leave , as a result of the mechanistic operation of the PBS . The PBS rules do not fall to be judicially re-written , in order to favour such an individual. It seems to us tha t the present case is an example of the other side of this coin. The respondent has decided that earnings from employment will be determined wholly by reference to the position up to (but not beyond) the date of application. That is her choice. But, just like the unsuccessful individuals in the cases just mentioned, she cannot expect the Tribunal to interpret the Rules in order to give her the best of both worlds.

The First-tier Tribunal judge was, therefore, wrong to dismiss the appeal on the basis that the appellant did not meet the requirements of the Immigration Rules at the date of the hearing. That error would not, nevertheless, be a material one if the appeal would still have fallen to be dismissed for the second reason, set out in paragraph 21 above .

This means we must assess the significance in a human rights appeal of the fact that the appellant meets the requirements of the Immigration Rules , which the respondent considered she did not meet . The basic position is now settled. As explained in Charles ( h uman rights appeal: scope) [2018] UKUT 00089 (IAC), the significance lies in the application of the “ Razgar questions” (see paragraph 14 ) above. If both questions (1) and (2) are answered in the affirmative, we enter the realm of A rticle 8(2). This provides:-

As was pointed out at paragraph 58 of Charles , the requirement, addressed in question (3) , that the interference be “in accordance with the law” can still be met, even if the application of that law in the particular circumstances of an individual case involves an error on the part of the respondent. Both Strasbourg and domestic authority holds that the nature of question (3) is whether the proposed interference has a proper basis in domestic law, including whether that law is accessible to the person concerned and foreseeable as to its effects. We consider that the relevant provisions of Appendix FM and Appendix FM-SE have such a proper basis and are sufficiently accessible and foreseeable. Question (3) is therefore answered in the affirmative.

Given that the Article 8 interference inherent in the minimum income requirement of th ese provisions of the Rules has been held by the Supreme Court in MM (Lebanon) and Others v Secretary of State for the Home Department [2017] UKSC 10 ; [2017] Imm AR 729 not to be inherently unlawful, question (4) falls to be answered in the affirmative.

As is almost always the position in cases of this kind , t he o nly real issue is , thus, whether the interference is proportionate to the legitimate public end sought to be achieved. In OA and Others (human rights; “new matter”; s .120 ) Nigeria [2019] UKUT 65 (IAC), paragraph 1 ; [2019] Imm AR 647 of the headnote reads:-

In the same vein, Sir Ernest Ryder, Senior President of Tribunals held in TZ (Pakistan) and Another v Secretary of State for the Home Department [2018] EWCA Civ 1109 ; [2018] Imm AR 1301 that:-

Th ose cases were concerned with persons, all of whom were in the United Kingdom. There is, however, in our view no relevant difference between that category of case and the one with which we are concerned ; namely, an entry clearance case in which an individual wishes to live with his or her settled partner in the United Kingdom. As Lord Wi l son held at paragraph 44 of MM : -

There may, of course, be situations in which , even though a person shows on appeal that they meet the requirement of a particular rule , which the respondent wrongly concluded that person did not meet, and which led the respondent to refuse the application, circumstances have, nevertheless, come to light that mean the respondent can legitimately invoke some other provision of the R ules , in order to deny entry. For example, it may subsequently appear that deception has been employed or that the applicant has behaved in such a way that public policy requires their exclusion. One can also envisage an extreme case where, whether or not the R ules make express provision for it, the true position is such that the very purpose of A rticle 8 would be subverted by allowing entry. Such a situation would, in our view, arise where, in an entry clearance case involving marriage, cogent evidence emerge s to show that the applicant ha s undergone a f orced marriage and that it would be contrary to her human rights if she were to be admitted in order to live with her husband in the United Kingdom . In this regard, it is important to bear in mind the general purpose of Appendix FM , which is to give effect to Article 8 considerations.

There is , however, no suggestion whatsoever in the present case that any such hyp o thetical situation may exist . The refusal of entry clearance was entirely due to the respondent’s view about the sponsor’s ability to meet the financial requirements of the Rules by virtue of employment. The First-tier Tribunal found that view was wrongly held. That mistaken view continues to be the sole ground for refusal. As such, the present case falls squarely within the scope of cases envisaged in OA and TZ (Pakistan) . It would manifestly be a disproportionate interference with the A rticle 8 family life that exists between the appellant and her husband for the respondent to refuse the appellant entry clearance.