IA194172013 & ors

The First-tier Tribunal allowed an appeal by the respondents (hereafter the claimants) against a decision dated 17 th May 2013 of the appellant (hereafter the SSHD) to refuse to vary their leave to remain as a Tier 1 (Entrepreneur) with dependants. The SSHD had also taken a decision to remove the claimants in accordance with s47 Immigration Asylum and Nationality Act 2006. The First-tier Tribunal judge found that the claimants did not meet the requirements of the Immigration Rules, in particular paragraph 41-SD(c).

Permission to appeal was granted on the grounds that the First-tier Tribunal had failed to give adequate consideration to the relevant legislation, had paid no regard to the relevant paragraphs of the Immigration Rules, and had in effect found that the criteria in the PBS Rules impose a higher test than the proportionality test of Article 8.

There is no reference in the determination to the need to weigh the public interest against the individual circumstances of the claimants. The First-tier Tribunal has, I am satisfied, in effect concluded that the requirements of the Rules imposed too high a burden and could thus be disregarded in the instant case. I set aside the decision of the First-tier Tribunal judge to allow the appeal on Article 8 grounds to be remade.

On the evidence before me I am satisfied, weighing the legitimate interest of the SSHD in the maintenance of immigration control and the matters raised in favour of the claimants as set out above, that the decision to refuse the claimants� leave to remain is not disproportionate.

I therefore allow the appeal of the SSHD; the appeal by the claimants against the decision by the SSHD to refuse to vary their leave is dismissed.