VA188052013

The Appellant ( the Secretary of State ) appealed with permission granted by First-tier Tribunal Judge Ievins on 12 September 2014 against the determination of First-tier Tribunal Judge Hague who had allowed the Respondent�s appeal on Article 8 ECHR grounds against the refusal of her application for entry clearance as a visitor in a determination promulgated on 21 July 2014. The appeal was determined on the papers as the Respondent had requested.

The Respondent i s a national of Iran , born on 21 September 1975, currently studying in Malaysia. She wished to visit the United Kingdom for the purpose of sitting a professional examination. The Entry Clearance Officer had refused her entry clearance application on the grounds in summary that (a) the source of her funds had not been sufficiently proved; (b) her right to remain in Malaysia as a student was in doubt; and (c) her intention to leave the United Kingdom at the end of her visit was in doubt. The Appellant�s right of appeal was limited to human rights and Equality Act 2010 issues.

Permission to appeal to the Upper Tribunal as sought by the Appellant was granted because the judge had misapplied CDS (Points Based System: �available�: Article 8) Brazil [2010] UKUT 305 (IAC) (which applied to a student already in the United Kingdom) and had treated Article 8 ECHR as a general dispensing power, contrary to Patel v SSHD [2013] UKSC 72 . The judge had not considered whether or not the Respondent �s human rights were engaged.

Directions were issued by the Upper Tribunal in standard form. The Respondent was not represented at the hearing and had sent in no further material for the tribunal to consider. The tribunal considered that the onwards appeal could nevertheless be justly determined.

Mr Wilding for the Appellant relied on the grounds and the grant of permission to appeal. The Respondent�s human rights were simply not engaged on the facts and the determination was misconceived. Patel (above) applied.