OA024712015

The judge found [16] that if the appellant joined the family in Birmingham then the property in which they were living would be overcrowded. He therefore dismissed the appeal under the Immigration Rules but went on to consider Article 8 ECHR. At [28], the judge considered the accommodation issue in the context of Article 8. He noted that the two elder siblings had planned to move out of the house which would make room for the appellant. He also considered that,

the legitimate aim of lawful immigration control is narrowed in this case because the remainder of the family has been brought over on a family reunion visa. If this child had been born pre-flight would have qualified without the stringent Rules being applied under Appendix FM

The respondent submits that, if the accommodation was not adequate for the purposes of the Immigration Rules, it cannot have been adequate for the appellant under Article 8; it would not be in the best interests of the child (section 55 of the Borders, Citizenship and Immigration Act 2009) not be met by his being expected to live in overcrowded accommodation. The family should find a larger property and then apply again for entry clearance.

Mrs Aboni accepted the submission of Mr Ahmed, for the appellant, that the grounds of appeal are incorrect stating that the relevant date for assessing the evidence in the appeal was the date of the application. Section 85(4) of the Nationality, Immigration and Asylum Act 2002 (as amended) provides for all human rights appeals (including those in respect of appellants living abroad) be considered at the date of the appeal (see Section 85(4) of the 2002 Act (as amended)).

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008