Entry Clearance Officer (Islamabad, Pakistan) v Razia Sultana & Ors

Applicants must meet both the substantive financial requirement and the mandatory specified-evidence requirements in Immigration Rules Appendix FM-SE. The evidential-flexibility provisions do not cure wholesale failures to provide required documents; they are dispensing provisions for minor omissions or defects capable of ready correction or waiver.

The discretion belongs to the primary decision maker, not the Tribunal on appeal. Applicants seeking its exercise should identify the relevant provision and grounds in their application. A material failure to recognise, consider or lawfully exercise such a discretion may make a decision unlawful.

Immigration Directorate Instructions cannot amend or determine the meaning of the Immigration Rules, although an applicable instruction may be a material consideration.

The respondents, a mother and her three children, applied for entry clearance to join the mother's settled husband in the United Kingdom. Their sponsor relied on self-employment income from takeaway and decorating businesses.

The Entry Clearance Officer refused the applications because specified tax, registration, reference-number and bank-statement evidence required by Appendix FM-SE had not been supplied. The First-tier Tribunal allowed the appeals after considering further material and accepting that the sponsor's work involved cash payments.

The Entry Clearance Officer appealed. The central issues were whether the specified-evidence requirements had been met, whether evidential flexibility assisted the respondents, and whether the First-tier Tribunal could allow the appeals despite the deficiencies in the original applications.

1. The Entry Clearance Officer's appeal was allowed. The First-tier Tribunal's decision was set aside and re-made by dismissing the respondents' appeals. The Entry Clearance Officer's refusal decisions were affirmed.

2. Appendix FM-SE required the respondents to satisfy the stipulated evidence requirements as well as the applicable financial threshold. The applications omitted numerous mandatory documents, including tax, registration and reference material, and contained non-compliant bank evidence. The later evidence did not rectify those systemic deficiencies: [14]; [17]-[19].

3. Paragraph [D] did not assist. Its discretion concerning documents in the wrong format or copies was remote from an outright failure to supply numerous specified documents. There was therefore no basis to find that the Entry Clearance Officer's failure to exercise the discretion was unlawful. That discretion was exclusively for the primary decision maker and could not be exercised by either tribunal on appeal: [16]; [18].

4. By way of general guidance, powers of waiver and further enquiry are dispensing provisions for minor defects or omissions that can readily be remedied or excused. An applicant who seeks such discretion should make the request, identify the relevant provision and explain the grounds when applying. If the request is refused, the decision maker should provide a brief intelligible explanation. A material failure to recognise, consider or lawfully exercise such a discretion may render an immigration decision not in accordance with the law: [20]; [24]-[25].

5. Immigration Directorate Instructions are subordinate to the Immigration Rules. They cannot amend the Rules or determine their meaning, though an engaged instruction is a material consideration and its non-recognition, misconstruction or misapplication may vitiate a decision: [27]-[30].

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Entry Clearance Officer's appeal, set aside the First-tier Tribunal's decision, and re-made it by dismissing the respondents' appeals.
• First-tier Tribunal: Allowed the respondents' appeals against the Entry Clearance Officer's refusal of their entry-clearance applications.