VA041532014

This is the appeal of the Entry Clearance Officer against the decision of First-tier Tribunal Judge Kempton promulgated 16.1.15, allowing the claimant�s appeal against the decision of the Entry Clearance Officer, dated 30.6.14, to refuse him entry clearance to the United Kingdom as a family visitor pursuant to paragraph 41 of the Immigration Rules. The Judge heard the appeal on 13.1.15.

For the reasons set out herein, I found that there was an error of law in the making of the decision of the First-tier Tribunal such that the determination of Judge Kempton should be set aside and remade. Following further submissions of the sponsor and Mr McVeety I dismissed the appeal, for the reasons set out below.

The refusal of entry clearance attracts only a limited right of appeal, on Race Relations and Human Rights grounds. In the circumstances, the approach of the judge in �9 through �16, assessing the merits of the immigration application or decision, was flawed and the conclusions of the judge in respect of the same irrelevant. The statement that, �Ultimately, the issue is one of whether the appeal should be refused for the appellant to make a fresh application with more evidence or whether it should be allowed,� is entirely misconceived.

In Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) it was held that:

�In the case of appeals brought against refusal of entry clearance under Article 8 ECHR, the claimant�s ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal, but is capable of being a weighty, though not determinative, factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control.�