OA018112013

That application was refused by the Entry Clearance Officer on 19 December 2012. An appeal against that decision was refused by the Entry Clearance Manager on 25 September 2013. A further appeal was allowed by the First-tier Tribunal in a decision promulgated on 7 February 2014. The Entry Clearance Officer appeals with permission against the decision of the First-tier Tribunal.

When the matter was reconsidered by the Entry Clearance Manager it was noted that despite the reasons for the original decision and a subsequent invitation to Binto Badgie to submit additional evidence, she had failed to do so. On this basis the Entry Clearance Manager not only confirmed the reasons for the original decision, but considered that this was a proportionate decision under Article 8(2) of the ECHR.

The First-tier Tribunal considered that the best interests of Abdul would be provided by him living with both parents in the United Kingdom. Accordingly it found that the original decision was a disproportionate �... interference with the right to family life ...� and allowed the appeal.

The grounds of appeal to the Upper Tribunal are: firstly, that the First-tier Tribunal failed to direct itself that where an individual fails to obtain leave to remain under the Immigration Rules, it is only if there are compelling circumstances not sufficiently recognised under the Rules that an individual should be granted leave to remain on Article 8 grounds and; that Binto Badgie�s remedy lay not in an appeal, but by making further applications which accorded with the Rules such that no compelling circumstances could be said to exist in this case.

There is a reflection of those observations in the more recent case of SSHD v Rodriguez and Others [2014] EWCA Civ 2 , which was considering the extent to which the �evidential flexibility policy� affords flexibility to the Secretary of State and Tribunals in overcoming defects or omissions in documentation provided in support of immigration applications.