IA196682013 & ors

The first appellant (�the appellant�) entered the UK as a student in 2004. She was later granted leave to remain in the Tier 1 (Post-Study Work) category until 13 January 2012, with her husband and children as her dependants. On 11 January 2012 she sought leave to remain on the basis of her relationship with her husband and two children. By letter dated 10 May 2013 the Respondent refused the applications under Appendix FM of the Immigration Rules (considering the partner route, private life, the family unit, and leave to remain as a child).

First-tier Tribunal Judge Agnew dismissed the appellant�s appeals by determination promulgated on 20 December 2013.

The judge erred in law in carrying out a proportionality assessment under Article 8 in that she failed to consider a relevant factor, while at the same time considering an irrelevant consideration. At paragraph 31 of the determination it was submitted that the family had now been residing in the UK for 9 years and 9 months and would be able to apply for indefinite leave to remain under the 10 years long residence rule, and that this is � relevant � in the Article 8 assessment.

However, the judge at paragraphs 32-36 considered the appellant�s continued residence under the Post Study Work visa category and concluded:

Mr Ndubuisi said that Ground 1 discloses an adverse credibility finding wrongly reached. The judge went wrong because she failed to note that the Post Study Work category does not impose a requirement to take employment. Its purpose is to give international students freedom to remain. It was not really feasible for the appellant to have found work, in her circumstances. He accepted that she has never worked, so there was no question of maternity leave.