OA199332012

The appellant is a citizen of Bangladesh born on 26 December 1981. He has been given permission to appeal against the determination of Judge Brenells dismissing his appeal against the respondent�s decision to refuse his application for entry clearance to the United Kingdom as a spouse.

The appellant applied for settlement in an application form dated 17 June 2012. He gave details of his previous illegal stay and departure from the United Kingdom and his previous unsuccessful applications made in the UK and in Bangladesh. He stated that he married his wife, his current sponsor, in Bangladesh on 11 August 2009 and had lived with her for a few weeks after their marriage. They had a son together, born on 28 December 2011.

Following a review by the Entry Clearance Manager, it was conceded that the appellant�s marriage was valid, although the refusal under paragraph 281 (iv) and (v) on grounds of maintenance and accommodation was maintained. The respondent maintained the refusal under paragraph 320(11) and concluded that the decision did not breach the appellant�s Article 8 human rights.

Permission to appeal to the Upper Tribunal was sought on the ground that the judge had erred by failing to conclude that the respondent�s decision was unlawful for two reasons. Firstly, there had been a failure by the Entry Clearance Officer (ECO) to obtain authorisation from the Entry Clearance Manager (ECM) for refusing the application, contrary to the UKBA guidance. Secondly, there had been a failure to follow the guidance to the effect that it was only aggravating circumstances occurring after any previous appeal determinations that should be considered.

At the hearing Mr Bramble acknowledged that the judge had erred in law in his consideration of the UKBA guidance with respect to both matters raised in the grounds. He submitted that the appeal ought therefore to be allowed to the limited extent that the decision was unlawful and that the matter had to be remitted to the ECO for reconsideration.