IA186812013

The Appellant entered the United Kingdom in 2004, or alternatively 2006, as a visitor and overstayed. On 18 th December 2008 she sought to be issued with a residence card. This application was refused by the Respondent, as was a second application made on 11 th February 2012. A third application made on 24 th December 2012 was refused by the Respondent and has given rise to the present proceedings.

Deputy Upper Tribunal Judge McCarthy held that under Section 86(1) of the Nationality, Immigration and Asylum Act 2002 the Tribunal was required to determine any matter raised as a ground of appeal. As the Appellant had raised Article 8 in appealing against the Respondent�s decision, Judge Wright had to determine it. The Respondent had not opposed the Appellant�s appeal when submitting her own Rule 24 notice and the Presenting Officer at the hearing before the Deputy Upper Tribunal Judge had conceded that the determination was legally flawed because the Judge had not dealt with Article 8.

The Deputy Upper Tribunal Judge was not able to complete the hearing as one piece of documentary evidence was missing. He gave directions that the Appellant was required to provide details of the current weekly amounts paid to the Sponsor in income support and disability living allowance and the current weekly council tax payments made by the Sponsor. Finally he noted:

In closing the Appellant stated that she had received a letter from the Respondent and thought she had sent it to the Tribunal. She had filled out a form to obtain a national insurance number and started college in 2009. She had advised the Sponsor to improve his English. The letter from the Respondent she had submitted to the college. She appeared then to retract her claim that she had sent the letter to the Tribunal, saying that if the college was contacted a copy of the letter could be found.

The Appellant cannot bring herself within the 2006 Regulations since the Sponsor is not a qualified person. She therefore seeks leave to remain outside the Immigration Rules under Article 8.There has been a considerable amount of case law on Article 8 centring on the weight to be given to the legitimate aim being pursued by the Respondent against the impact on the Appellant�s private and family life and that of close members of her family.