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This is an appeal against a decision of a First-tier Judge promulgated on 13 February 2014. It is an appeal brought by the respondent, the Entry Clearance Officer Islamabad against that decision. The original decision, which was made by the Entry Clearance Officer, was made on 30 March 2013.
The appellant, as I will continue to refer to her and to the Entry Clearance Officer as the respondent as that was how they were before the judge, had applied, for entry clearance as a partner under ECP.1.1 of Appendix FM. The issue as it has developed is that of first the ability to meet the financial requirements of the Immigration Rules and thereafter Article 8 of the European Convention on Human Rights.
The judge accepted that the couple had shown on balance that they were in a genuine and subsisting marriage, which was a matter of dispute by the respondent initially. The judge went on to note that the correct documentation had not been filed with the application and therefore it had not been shown that the sponsor was earning over �18,600 and the appeal therefore had to fail under the Rules but she went on to consider the situation under Article 8.
She said it was clear from the evidence before her, in particular the payslips, that the income would equate to just under �22,500 by the end of the tax year and considered it would be disproportionate to require the appellant to apply under the Rules again or apply from abroad and allowed the appeal on the basis that it would be disproportionate to do otherwise
The respondent sought permission to appeal against this decision on the basis that the judge erred in allowing the appeal under Article 8 because it was clear from Gulshan that the Article 8 assessment should only be carried out when there were compelling circumstances not recognised by the Rules, contrary to the judge�s findings at paragraph 19 and no such compelling circumstances had been identified and reference was made also in the grounds to Mr Justice Sales� decision in Nagre very much to the same effect as that in Gulshan and noting what the judge said about the relevance of MM.
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