OA006262013

This is an appeal by the Entry Clearance Officer against a decision of First-tier Tribunal Judge Coleman who allowed the appellant's appeal against a decision to refuse entry clearance as a partner. The refusal was based on Appendix FM of HC 395 (as amended). For convenience, I refer to the parties as they were before the First-tier Tribunal.

The sponsor was given notice of the hearing before me by letter from the Tribunal but she did not attend. There was no notification to the Tribunal that she had wanted to attend but was unable to for some reason. The appellant was also notified of the hearing, the significance of that being that he would also have been able to ask his wife to attend. There was no reason to do other than to proceed with the hearing notwithstanding the absence of the sponsor.

The appellant is a citizen of Kenya, born on the 13 September 1969. The application for entry clearance was refused on the basis that he had not satisfied the financial requirements of the rules in terms of evidence provided in relation to his sponsor's employment and salary.

Judge Coleman concluded at [9] that the appellant was not able to succeed in his appeal under the Immigration Rules because he had not provided his sponsor's contract of employment and the bank statements did not coincide with the period covered by the wage slips. The latter months were not covered in the bank statements although the earlier months were. There were no wage slips for the earlier months. At [10] she stated that the Rules are specific and do not admit of any discretion.

In relation to Article 8, she appears to have found at [13] that the appellant could not meet the �Article 8� rules, although she did not express it that way. She made reference to the requirement of there being insuperable obstacles to family life being conducted elsewhere, although whether in any event that requirement of the Rules accords with Article 8 is doubtful (see MF (Nigeria) [2013] EWCA Civ 1192 at [49]).