OA116472013

The respondent, Regina Il Perez Villar, was born on 9 December 1980 and is a female citizen of the Philippines. She sought entry clearance to the United Kingdom to join her husband, Jefferson King (hereafter referred to as the sponsor). Her application was refused by the ECO in Manila on 25 April 2013. She appealed to the First-tier Tribunal (Judge Cox) which, in a determination promulgated on 22 April 2014 allowed the appeal on human rights grounds (Article 8 ECHR) but dismissed it under the Immigration Rules. The Entry Clearance Officer now appeals, with permission, to the Upper Tribunal.

The sponsor did not attend the Upper Tribunal hearing at Bradford on 10 October 2014 and nor was the respondent represented. I had a letter from the respondent�s solicitors dated 24 September 2014 confirming that they would not attend. Mr Diwnycz, for the appellant, relied on the grounds of appeal.

The decision of Blake J in MM has now been reversed in the Court of Appeal ( MM [2014] EWCA Civ 985 ). The Court of Appeal�s judgment postdates the determination of the First-tier Tribunal having been handed down on 11 July 2014. Of particular relevance are the observations of the Court of Appeal at [136-153]:

However the respondents attempt to challenge the judge's conclusion on this point because they argue that, individually, one or more of the five key elements of the new MIR which Blake J lists at [124] of his judgment did not do anything towards achieving the identified and legitimate aims and so were not "rationally connected" with the overall aim. They particularly focused on the fifth feature, viz. the disregard for non-EEA partner's own earning capacity during the thirty month period after initial entry.

The judge recognised that the SSHD was entitled to conclude that greater resources than �5,500 per couple (without children and with adequate accommodation) were needed for the identified aims. But he concluded that the figure of �18,600 chosen was more than the minimum necessary to accomplish the identified aim, particularly if (contrary to the stated policy) account could be taken of the non-EEA partner's potential income. Therefore the SSHD had failed to discharge the burden of demonstrating that the interference with Article 8 rights was justified.