OA100472014

In SS (Congo) and Others [2015] EWCA Civ 387 Lord Justice Richards said at paragraph 33 " In our judgment, even though a test of exceptionality does not apply in every case falling within the scope of Appendix FM, it is accurate to say that the general position outside the sorts of special contexts referred to above is that compelling circumstances would need to be identified to support a claim for grant of LTR outside the new Rules in Appendix FM. In our view, that is a formulation which is not as strict as a test of exceptionality or a requirement of "very compelling reasons" (as referred to in MF (Nigeria) in the context of the Rules applicable to foreign criminals), but which gives appropriate weight to the focused consideration of public interest factors as finds expression in the Secretary of State's formulation of the new Rules in Appendix FM. It also reflects the formulation in Nagre at para. [29], which has been tested and has survived scrutiny in this court: see, e.g., Haleemudeen at [44], per Beatson LJ".

Insufficient evidence is produced by the appellant to establish that there are compelling circumstances which merit considering any article 8 rights the appellant might have out-with the Immigration Rules.

The decision is tainted by a material error of law. I set the decision aside.

I substitute the following decision.

The appeal is dismissed under the Immigration Rules

The appeal is dismissed on article 8 ECHR grounds.