Discussion
11. As far as we are aware, and Mr Avery’s researches came to a similar conclusion, there is no decided authority on the interpretation of the phrase “lawfully derived” in paragraph 1(d) of Appendix FM-SE.12. We have set out above the respondent’s arguments in this regard, based on a combination of what is said to be the natural meaning of the words in the Rule and the potential difficulties arising if an alternative interpretation were adopted. On the other hand, Mr Hussain argues that all that concerned him was the fact of the money he received and the issue regarding whether or not tax and national insurance were paid over to the Revenue was a matter between his employer and the Revenue.13. It is clear from the judge’s findings that Mr Hussain’s income was derived from employment that he carried out in his work for Chicago Pizza. There is no suggestion that can be maintained that he did not do that work and nor is there any suggestion that can any longer be maintained that he was in any sense complicit in the non-payment by his employer of tax and national insurance deductions to the Revenue. It seems to us clear that the income in this case was, on a common sense interpretation of the phrase, lawfully derived by Mr Hussain. The fact that in the background the tax and national insurance deducted from his wages which should have been paid to the Revenue were, unknown to him, not so paid, cannot in our view detract from the fact that his income arose perfectly lawfully from lawful employment. It seems to us that it would be significantly too broad an interpretation of the Rule to regard Mr Hussain’s income as not having been lawfully derived on the basis that his employer failed to pass on the deducted tax and national insurance to HMRC. We do not think that the interpretive approach urged on us by Mr Avery can be sustained. Each case must be decided on its own facts, and that, we think, is a proposition that finds support from the absence of any attempt to provide any further clarification of the phrase “lawfully derived” either in the Immigration Rules or in any policy document. In a case as here where an employee has behaved perfectly lawfully it would in our view be quite wrong to interpret paragraph 1(d) in such a way as to taint him with what may well have been fraud on others on the part of his employer.14. We do not propose to make any attempt to define what is meant by “lawfully derived” in paragraph 1(d). As we say, this is a matter that must be considered on the facts of each case as and when they arise. In this case we are confident that the income of Mr Hussain was lawfully derived. In line with the guidance in TZ (Pakistan) [2018] EWCA Civ 1109; [2018] Imm AR 1301, at paragraph 34, “where a person satisfies the Rules … this will be positively determinative of that person’s article 8 appeal, provided their case engages Article 8(1), for the very reason that it would then be disproportionate for that person to be removed” [refused entry clearance] the appeal is allowed.15. As a consequence, the appeal is allowed on Article 8 grounds.