OA098232013

This is an appeal against a determination of the First-tier Tribunal, Judge Ross presiding, which was promulgated on 11 October 2013 allowing the appeal on human rights grounds of the appellant, Mrs Sedigheh Nemati, who on 23 February 2013 applied for settlement in the United Kingdom on the basis of her marriage to the sponsor, Mr Hassan Nameti. As I have said the appeal was allowed on human rights grounds but dismissed under the Immigration Rules. I will need to come back to the significance of that in a moment.

On 26 March 2013 the application was refused on the basis that the Entry Clearance Officer was not satisfied that the evidence provided met the Rules. The Entry Clearance Officer was also not satisfied that the appellant had passed the relevant English language test.

It is clear from the papers that at some stage that decision was reviewed by the Entry Clearance Manager who stated, and this is set out in paragraph 4 of the determination, that whereas he appreciated the compassionate circumstances in this case to which we will come in a moment the fact remains that the appellant failed to meet the requirements of the Rules.

The appeal against that decision was made on 9 June 2013 under Section 82 of the Nationality, Immigration and Asylum Act 2002 and was brought on the basis that the decision of the Entry Clearance Officer under the Rules was erroneous and moreover, and in any event, there was a claim under Article 8 of the Convention. In short it would be an unjustified and disproportionate interference with human rights to maintain the exclusion of the appellant from the United Kingdom.

As for the English language requirement the appellant as we have said did not pass the test but she said that she had been suffering from stress. We will return to that point in due course but she did pass the test in July 2013 which was after the date of the application and of the decision.