IA079712015

The Appellant was born on 20 January 1982 in Kosovo. On 21 July 2011 he married his British wife in Kosovo. She was originally from Kosovo. He entered the United Kingdom a number of times to visit her after their marriage and she also visited him in Kosovo. Sometimes she took their son with her. The Appellant last entered the United Kingdom on 28 October 2014, as a visitor. On 22 December 2014 he applied for leave to remain here as his wife's spouse. This application was refused on 19 February 2015 and he appealed on 25 February 2015.

On 26 August 2015 First-tier Tribunal Judge Row dismissed the appeal. It was not argued at that appeal that the Appellant could succeed under the Immigration Rules. The Appellant did argue that he had a derivative right of residence but this ground of appeal is no longer relied upon.

The Appellant appealed on 4 September 2015 and First-tier Tribunal Judge Hollingworth granted him permission on 29 December 2015 on the basis that First-tier Tribunal Judge Row should have considered the Appellant's circumstances at the date of the appeal hearing when considering whether his Article 8 rights had been breached. The Respondent made a Rule 24 response on 18 January 2016.

Counsel for the Appellant also submitted that First-tier Tribunal Judge Row did not apply the law relating to the Appellant's son's best interests correctly in paragraphs 22 to 25 of his decision. Counsel said that he failed to properly assess the impact on the child of separation from the Appellant when they currently lived together and the Appellant cared for him. He also relied on the case of JO and Others (section 55 duty) Nigeria [2014] UKUT 517 (IAC) .

When formulating his decision First-tier Tribunal Judge Row did not refer to the Immigration Rules or consider relevant case law such as R (on the application of Nagre) v Secretary of State for the Home Department [2013] EWHC 720 and consider whether there were any exceptional circumstances which entitled the Appellant to leave to remain outside the Immigration Rules. Instead, he started by considering whether Article 8 of the European Convention on Human Rights would be breached if the Appellant was removed from the United Kingdom.