OA250582012

The Entry Clearance Officer, Kingston appeals with permission the decision of First-tier Tribunal Judge Russell who for reasons given in a determination dated 28 January 2014 allowed the respondent�s appeal on human rights grounds under Article 8 against the Entry Clearance Officer�s decision dated 27 November 2012 refusing entry clearance to the respondent as the partner of a British national, Mrs McCarty with reference to the relevant provisions of Appendix FM of the Immigration Rules.

The judge found the respondent had not demonstrated he met the requirements of the Immigration Rules. He reached a more positive conclusion however under Article 8 after directing himself in relation to the most recent authorities on the correct approach to Article 8 under the new Rules including Gulshan (Article 8 - new Rules - correct approach) [2013] UKUT 640 (IAC) and The Queen (on the application of) Nagre v SSHD [2013] EWHC 720 (Admin) .

(a) The judge�s conclusion that the fact that the respondent would have qualified under the old Rules was irrelevant and should not enhance the claim under Article 8;

(b) The judge�s conclusion that the sponsor�s health may be set back by the refusal did not appear to be supported by any objective evidence; the instant appeal was far removed from the instances where the protection of an individual�s moral and physical integrity is engaged;

(c) As to the reliance by the judge on MM and Others v SSHD [2013] EWHC 1900 (Admin) it was submitted that the judge in that case had wrongly assumed the role of the democratically accountable decision maker in the formulation of policy and had insufficient regard to the width of discretion afforded to the Secretary of State in formulating that policy;