IA079182013

This is an appeal by the Secretary of State against a determination of First-tier Tribunal Judge Shamash promulgated following a hearing at Taylor House on 19 th July 2013 in which the Judge allowed Mr Khans appeal under Article 8 ECHR.

The Secretary of State therefore refused the application on the basis of which Mr Khan applied but considered his family and private life by reference to the Immigration Rules in force from 9 th July 2012. In relation to his private life under paragraph 276ADE but as he had not submitted an appropriate application on the correct specified form to allow consideration under Appendix FM in relation to any family life that he claims exists, this was not considered.

The Judge notes in paragraph 4 of the determination that at the beginning of the hearing, counsel for Mr Khan conceded that he did not meet the requirements of the Immigration Rules as it was accepted, as set out in the refusal letter, that he did not have continuous lawful residence in the United Kingdom for the requisite 10 year period.

The Judge notes the evidence and some legal issues before setting out her findings from paragraph 34 onwards. The Judge specifically notes that in addition to it being conceded that Mr Khan was unable to meet the requirements of 276A he was also unable to meet the requirements of the Immigration Rules or Appendix FM [24].

Even though it was accepted Mr Khan could not succeed under the Rules the Judge appears to have thought it appropriate to proceed to undertake a freestanding Article 8 assessment by reference to the Razgar criteria, without more [30 and 34]. The Judges factual findings can be summarised as follows: