IA175852014

This is an appeal by the Secretary of State for the Home Department against a determination promulgated on 21 August 2014 of First-tier Tribunal Judge V A Osborne which allowed the Article 8 ECHR appeal of Ms Rubairo.

For the purposes of this determination, I refer to Ms Rubairo as appellant and to the Secretary of State as the respondent, reflecting their positions as they were before the First-tier Tribunal.

The claimant is a Tanzanian citizen born on 1 June 1975. She came to the UK as a student in July 2005. She married a German national on 25 February 2008. She was issued with a residence card recognising her as the family member of an EEA national exercising Treaty rights until 12 April 2013. The couple separated in July 2010 and the appellant started divorce proceedings in 2012. The divorce was made absolute on 10 January 2014. On 3 February 2014 she applied to be recognised as someone with a retained right of residence. The respondent refused that application on 24 March 2014.

The appeal against that refusal came before Judge Osborne on 14 August 2014. The appeal against refusal to recognise the appellant had a right of residence as the former spouse of an EEA national was refused by Judge Osborne and there was no cross appeal against that decision.

Judge Osborne went on to allow the appeal under Article 8 ECHR on the basis of the appellant�s private life. As I understood it, the respondent�s challenge to that decision is twofold. Firstly, the First-tier Tribunal Judge misdirected itself in law in failing to follow the correct legal approach in the proportionality assessment. Secondly, there was insufficient evidence justifying the finding that the appellant�s private life was of such weight that her return to Tanzania was disproportionate such that the decision of the First-tier Tribunal was irrational or perverse.