(1) In an application for entry clearance as the partner of a person present and settled in the United Kingdom, the financial requirements in E-ECP.3.1 of Appendix FM to the Immigration Rules regarding income from employment relate to the period of 6 months prior to the date of the application. There is no requirement to continue in the relevant employment (or some at least equally remunerative employment) thereafter.
(2) The significance of P being found by the Tribunal to satisfy a provision of the Immigration Rules, which the Secretary of State considered P did not satisfy, and which caused her to refuse P’s application, applies to entry clearance cases, as it does to cases where P is in the United Kingdom. Provided that ECHR Article 8 is engaged, the Secretary of State will not be able to point to the importance of maintaining immigration controls as a factor weighing in her favour in the proportionality balancing exercise, so far as that factor relates to the particular rule that the Tribunal finds was satisfied: OA and others (human rights; ‘new matter’; s. 120) Nigeria [2019] UKUT 65 (IAC).
(3) There may be situations in which, even though it is found on appeal that P meets the requirement of a particular rule, which the Secretary of State wrongly concluded P did not meet, and which led her to refuse the application, circumstances have, nevertheless, come to light that mean the Secretary of State can legitimately invoke some other provision of the Rules, in order to deny P entry. One can also envisage an extreme case (eg. forced marriage) where, whether or not the Rules make express provision for it, the true position is such that the very purpose of Article 8 would be subverted by facilitating P’s entry. Or, more generally, it may appear that deception has been employed or that the applicant has behaved in such a way that public policy requires their exclusion.
[2021] UKUT 115 (IAC)
Bailii
England and Wales
Updated: 17 August 2021; Ref: scu.666424
