OA154372014

This is an appeal by the Secretary of State for the Home Department (SSHD). However, for the purposes of this decision, I shall refer to the SSHD as the respondent and Mr Shah as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.

The appellant lodged an appeal against that decision. In response to the appeal the respondent maintained the decision. The respondent noted, with respect to the sponsor's second place of employment, that her cash salary from that employment was not reflected in her bank statements. The respondent did not consider that the decision was in breach of the appellant's Article 8 rights.

Permission to appeal to the Upper Tribunal was sought by the respondent on the basis that the judge had in effect applied a "near miss" principle in his proportionality assessment and that this did not constitute compelling circumstances as set out in the case of The Secretary of State for the Home Department v SS (Congo) & Ors [2015] EWCA Civ 387 .

At the hearing Mr McVeety relied upon the grounds of appeal and the principles in SS (Congo) . He submitted that the judge had implied that the requirement in Appendix FM-SE was a mere technicality, whereas it clearly was not. The appellant, in order to succeed under Article 8, had to demonstrate compelling circumstances, which he had failed to do. He was best advised to make a fresh application.

"51. In our judgment, the approach to Article 8 in the light of the Rules in Appendix FM-SE should be the same as in respect of the substantive LTE and LTR Rules in Appendix FM. In other words, the same general position applies, that compelling circumstances would have to apply to justify a grant of LTE or LTR where the evidence Rules are not complied with.