OA242992012

This is an appeal by the Secretary of State against the determination of First-tier Tribunal Judge Birk promulgated on the 6 th of March 2014 in which the Appellant's appeal against the ECO�s refusal of his spouse application was allowed. The grounds assert that the Judge erred in the approach to paragraph 320(11) of the Immigration Rules, not applying PA (paragraph 320(11) discretion: care needed) India [2010] UKUT 440 (IAC) , and that the approach taken to article 8 was wrong with no reasons being given why his circumstances were exceptional or the decision unduly harsh.

The Appellant's immigration history and the application of paragraph 320(11) of the Immigration Rules are dealt with at paragraph 14 of the determination. Having summarised the Appellant's immigration history and his statement that he was removed from the UK the Judge found that in view of the finding that the Appellant met the requirements of paragraph 281 and in respect of a continuing marriage he found that a discretion should have been exercised differently.

Following submissions at the hearing I indicated that if I was satisfied that this paragraph contained an error of law I would remake the decision and submissions on that and article 8 were invited. My reasons are given below. Following this indication Mr Ahmed submitted that the decision ought to be remitted to the ECO for the paragraph 320(11) point to be remade, his submission being that paragraph 320(11) required a lawful decision on paragraph 281 and the ECO�s decision had been overturned on appeal.

That argument is misconceived. Paragraph 320(11) is a discretionary ground for refusal which applies whatever decision is made on the substantive application. It does not require a decision on the substantive application to be made one way or the other and the fact that a Judge comes to a different conclusion on the substantive application does not undermine the ECO�s decision on the discretionary refusal. The substantive application is a matter to be decided on appeal too if it is maintained as a ground for refusal by the Home Office Presenting Officer.

The Judge erred as a decision under paragraph 320(11) required a full consideration of the Appellant's immigration history from start to finish with an assessment of aggravating and mitigating features and an explanation why, in the light of the guidance in PS it would be inappropriate to refuse the appeal on that ground. It needs to be borne in mind that the facts were to be assessed at the date of the decision and not the date of the hearing the continuation of the marriage would not be relevant to such an assessment.