OA67392014

The appellant before the Upper Tribunal is the Secretary of State for the Home Department and the respondent is a citizen of Pakistan born on 8 January 2015. However, for the sake of convenience I shall refer to the latter as the �appellant� and to the Secretary of the State as the �respondent�, which are the designations they had in the proceedings before the First-tier Tribunal.

The appellant�s appeal to the First-tier Tribunal Judge Mensah was against the decision of the respondent dated 30 May 2014 and 11 November 2014 who refused the appellant�s application for entry clearance as a spouse under Appendix FM of the Immigration Rules. The Judge allowed the appellant�s appeal in a decision dated 11 November 2014.

Permission to appeal to the Upper Tribunal was granted by First-tier Tribunal Judge Grimmett who stated that it is arguable that the Judge had erred in her application of evidential flexibility as the appellant could not provide the 12 months bank statements as required. The Judge nevertheless allowed the appeal on the basis that the Entry Clearance Officer should have applied the policy. It is arguable that the Judge erred in allowing the appeal outright on that basis as the discretion can only be exercised by the respondent not by the Judge.

It was accepted by the parties that the Judge made a mistake when he said at paragraph 10 that the appellant�s sponsor�s minimarket started on 1 May 2013. The market in fact started in 2012.

There is no suggestion that the First-tier Judge�s consideration of the subsistence of the relationship between the appellant and her sponsor in respect of the Immigration Rules is materially flawed. The respondent did not challenge this finding in the grounds of appeal. This finding by the Judge�s therefore is upheld.