OA114012014 & Ors.

This is an appeal by the appellants against a decision of the First-tier Tribunal issued on 18 September 2015 dismissing their appeals against the respondent's decision dated 24 November 2014 dismissing their application for settlement as the partner and children respectively of the sponsor.

However, the application was refused on 13 August 2014 on the basis that as at the date of application the appellants were unable to show that the specified evidence of the income requirements set out in Appendix FM-SE were met. The respondent went on to consider whether the application raised any exceptional circumstances, which might warrant consideration for a grant of entry clearance outside the Rules but decided that it did not do so.

The length of the separation was the only compelling circumstance put before him as justification for a grant outside the Rules. He repeated that if, as seemed to be the case, the financial requirements were now met he could see no reason why a fresh application should not succeed. There would be some delay in reuniting the family but that was caused by the fact that they chose to put in an application at a time when the Rules could not be met and then chose to pursue the appeal rather than put in a fresh application. For these reasons the appeal was dismissed.

In respect of article 8 it is argued that the judge erred by finding that the only fact which might amount to a compelling factor was the length of separation when at the time of the appeal it was no longer open to the third appellant to apply as he was over 18. The sponsor was a British citizen but still too afraid to return to Sri Lanka as he considered he would be at risk. The judge had therefore failed to take into account the circumstances of the separation as a factor relevant to the assessment of article 8.

Mr Yeo submitted that the judge had erred by failing, when considering article 8, to consider the delay in the light of all the circumstances of the appeal. The fact remained that at the date of decision the sponsor did have sufficient earnings within the Rules although he accepted that by that time the third appellant by virtue of his age fell outside the requirements of the Rules.