OA077672013

S S is a citizen of India, currently living there, who was born on 3 rd January 1980. In the interests of continuity I will continue to refer to him as �the Appellant� and to the Secretary of State as �the Respondent�, the titles by which they were known before the First-tier Tribunal. The Appellant and his former wife have a daughter J who was born in the United Kingdom on 18 th February 2008 and is thus now aged 6 years. The child is a British citizen. She is living with the Appellant in India.

The Appellant�s immigration history so far as time spent in the United Kingdom is concerned appears to be that he first came to the United Kingdom in 2006 and claimed asylum in March 2007. Following refusal of that claim he did not leave. He had met his former wife in or about November 2006 and a relationship developed. J was born in early 2008. The Appellant left the United Kingdom in November 2008 accompanied by his then wife and J and the couple married in India on 25 th November 2008.

The appeal was heard before First-tier Tribunal Judge Colyer at Nottingham Magistrates' Court on 12 th March 2014. He dismissed the appeal under the Immigration Rules and upheld the refusal under paragraphs 320(7A) and 320(11) but went on to state in the decision:

�I find that the decision of the Entry Clearance Officer breaches the Appellant�s derived rights under the community treaties conferring rights of entry and residence on the primary carer of a British citizen and I allow the appeal on that aspect.

At the hearing Mr Dhanji for the Appellant accepted that the judge had made a slip in stating that the appeal be allowed under Article 8. That is clearly right. The judge considered Article 8 issues at paragraph 73 to 79 of his determination and found that there was no breach of Article 8.