Asma Begum v The Secretary of State for the Home Department

The financial requirement for a partner’s employment income under Appendix FM is assessed by reference to the specified evidence and the period before the application. It does not impose an unstated continuing-employment requirement after the application date.

Where an entry-clearance applicant establishes on appeal that the relevant Immigration Rule was met, and Article 8 is engaged, refusal will ordinarily be disproportionate. The public interest in immigration control cannot be relied upon in respect of the rule wrongly treated as unmet. A different result may follow if a separate Rule, deception, exclusion on public-policy grounds, or exceptional circumstances independently justify refusal.

The appellant, a Bangladeshi national, applied for entry clearance as the spouse of a British citizen under Appendix FM to the Immigration Rules. The respondent refused the application because she considered that the sponsor’s claimed salaried employment and income were not genuine.

The First-tier Tribunal found that the sponsor had in fact been genuinely employed and earned more than the required amount at the application date. It nevertheless dismissed the human-rights appeal because the sponsor had left that employment before the hearing and could not evidence subsequent self-employment income.

After a judicial-review order quashed the refusal of permission to appeal, the Upper Tribunal granted permission and determined the substantive appeal. The central issue was whether cessation of the sponsor’s employment after the application date meant that the appellant no longer met the Rules and whether refusal was proportionate under Article 8.

1. Appeal allowed. The First-tier Tribunal made an error of law. Its decision was set aside and the Upper Tribunal substituted a decision allowing the appellant’s human-rights appeal.

2. The ordinary meaning of Appendix FM and Appendix FM-SE paragraph 13 fixes the relevant employment-income evidence by reference to the six months before the application date. Paragraph E-ECP.3.1 requires specified evidence of the stipulated income, and paragraph 13 is expressly directed to past earnings before the application. Neither provision requires the sponsor to remain in that employment, or equally remunerative employment, when the respondent decides the application or when the appeal is heard.

3. This construction is reinforced by the contrasting forward-looking wording of paragraph E-ECP.3.4 concerning adequate accommodation. Paragraph 27 of the Immigration Rules therefore did not permit refusal merely because the evidenced employment ceased after the application. Nor would paragraph 321A permit cancellation at the port on that basis, because there had been no relevant change of circumstances.

4. Applying the Razgar framework, the Rules had a proper, accessible and foreseeable legal basis, and the minimum-income requirement was capable of pursuing a legitimate aim. The decisive issue was proportionality. The Tribunal applied OA and Others and TZ (Pakistan) and Another: once the appellant had established that the Rule which caused refusal was met, the public interest in maintaining immigration control could not weigh against her in respect of that Rule.

5. The same principle applies to entry clearance as to applications by persons already in the United Kingdom. No separate adverse matter arose here. The sole stated ground for refusal was the financial requirement, which the First-tier Tribunal had found satisfied. Refusal was consequently a manifestly disproportionate interference with the parties’ Article 8 family life.

6. The Tribunal observed, without deciding such a case, that separate grounds may justify refusal despite satisfaction of a particular Rule. Examples include a newly applicable Rule, deception, public-policy exclusion, or cogent evidence that entry would subvert the protective purpose of Article 8, such as a forced marriage.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal on Article 8 grounds, set aside the First-tier Tribunal’s dismissal, and substituted a decision allowing the appeal.

• High Court: A judicial-review order quashed the Upper Tribunal’s earlier refusal of permission to appeal. The judgment records no neutral citation.

• First-tier Tribunal: Dismissed the appeal after finding that the sponsor had met the employment-income requirement at the application date but had later ceased that employment.