OA128232014

[130] and [131] narrate factors which the Judge weighs up in assessing proportionality for article 8 ECHR purposes. For the reasons given in the decision, the Judge finds that, as a matter of fact, the appellant's income exceeds the threshold set by the financial requirements, but that the appellant cannot discharge the burden of proving that she fulfils the requirements of the immigration rules because she has not produced the documents required in FM-SE. The Judge factors that finding (that is a matter of fact the appellant can satisfy the financial requirements of the rules) as one element of the proportionality assessment. In doing so the Judge acknowledges that it is the evidential requirements of appendix FM SE which prevent the appeal from meeting with success under the immigration rules.

The determinative question in this appeal is whether or not the Judge was correct to consider article 8 ECHR out-with the immigration rules. Parties are agreed that if there is a material error of law in this decision, it will be found between [125] and [139].

At [125] the Judge correctly takes guidance from [51] of SS (Congo) , and identifies "... That compelling circumstances would have to apply ... Where the evidence rules are not complied with ". Mr Avery argued that the facts, as the Judge found them to be in the remaining paragraphs of the decision, do not amount to " compelling circumstances ". He told me that the Judge's findings of fact merely identify an inconvenient situation.

At [128] the Judge declares that he considers whether there were exceptional circumstances to justify allowing the appeal out-with the rules. Between [129] & [138] the Judge discusses the impact of the respondent's decision on both the appellant and sponsor, & finds that, were it not for the evidential requirements, the rules would be satisfied. He weighs that finding against the purpose of immigration control, and then sets out the disruption caused to the married life of the appellant and sponsor by the respondent's decision.

The Judge finds that the sponsor has to reorganise his business arrangements and finances; that the decision causes separation between spouses; that the sponsor feels that he is being driven from the UK; that the appellant is on the cusp of having to return to Russia; and that the appellant and sponsor are only able to pursue married life when they meet temporarily in Spain.

Weighing each of those matters the Judge finds at [139] that the facts and circumstances of this case amount to exceptional circumstances. Deciding what amounts to exceptional (or compelling) circumstances is the job of the Judge at first instance, and is exactly what this Judge has done. The respondent may disagree and view the circumstances as less than compelling, but deciding whether the impact of the respondent's decision raises compelling or exceptional circumstances is a question for the First-tier Judge. In reaching his conclusions, the First-tier Judge has manifestly applied the correct test in searching for compelling or exceptional circumstances.

It is not an arguable error of law for a First-tier Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for a First-tier Judge to fail to deal with every factual issue under argument. Disagreement with a First-tier Judge's factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. In Green (Article 8 - new rules) [2013] UKUT 254 (IAC) the Tribunal said that " Giving weight to a factor one way or another is for the fact finding Tribunal and the assignment of weight will rarely give rise to an error of law".

In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.

The Judge carefully considered each strand of evidence placed before him. He carefully records the submissions that were made and then, after correctly directing himself in law, makes reasoned findings of fact before reaching conclusions which were manifestly open to the Judge to reach.

. I find that the Judge's decision, when read as a whole, sets out findings that are sustainable and sufficiently detailed and based on cogent reasoning.

No errors of law have been established. The Judge's decision stands.

The appeal is dismissed. The decision of the First-tier Tribunal stands.