Umair Hameed v Entry Clearance Officer, Pakistan

For the self-employment financial requirement in Appendix FM, the relevant financial year is the tax year. It is not an accounting year selected by the sponsor’s business. The latest self-assessment tax return must show the required gross income, unless averaging the two most recent tax returns establishes it.

Where refusal merely requires an applicant outside the United Kingdom to reapply once the Rules can be met, it is not a disproportionate interference with Article 8 rights on the facts of this case.

The appellant sought entry clearance as the partner of a British citizen. The Entry Clearance Officer refused the application. Judge McGavin in the First-tier Tribunal dismissed the appellant’s appeal on 21 October 2013.

The appellant argued that the sponsor’s income should be averaged over two business accounting years. Her business had begun part-way through the first relevant tax year, so averaging the two tax returns did not meet the income requirement. The Upper Tribunal considered whether Appendix FM permitted use of the selected accounting years and whether Article 8 of the European Convention on Human Rights required a different result.

1. Appeal dismissed. The First-tier Tribunal’s determination contained no material error of law and stood.

2. Paragraph 7 of the evidence requirements under Appendix FM required evidence of tax payable, paid and unpaid for the last financial year and the latest self-assessment tax return. The Upper Tribunal held that, in that context, the financial year meant the tax year, not a business’s chosen accounting year.

3. The latest tax return had to establish the necessary gross income. The only permitted alternative was to average the two most recent tax returns where the latest return alone did not show the required income. The sponsor’s accountant’s figures for two selected accounting years could not satisfy the Rule.

4. The Tribunal expressed reservations about the First-tier Tribunal’s view that section 113 of the Nationality, Immigration and Asylum Act 2002 excluded human-rights issues where the appellant was outside the United Kingdom. It considered that section did not have that effect. The issue did not require further analysis because it was not raised by the grounds and no Article 8 submissions were pursued.

5. In any event, the refusal required only that the appellant reapply when the Rules could be met. On those facts, this was not a disproportionate interference with Article 8 rights.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal and allowed the First-tier Tribunal’s determination to stand.
• First-tier Tribunal: Judge McGavin dismissed the appeal against refusal of entry clearance on 21 October 2013.