IA100032014

It is unfortunate that it was thought necessary to refer to Gulshan given that it has not been upheld or followed by the Court of Appeal even in the recent matter of Singh and Khalid . A recent decision of Mr Justice Edis equally comments fairly that the threshold stated in Gulshan is a misstatement of the law (see [47] of Sunassee, R v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2015] EWHC 1604 (Admin) ). It is now well-settled that there is no intermediary test before a decision-maker or Tribunal must consider whether there is an Article 8 claim not dispensed with by the rules. That consideration will always need to take place and the two-stage approach stated in Izuazu remains good law as followed by Mr Justice Sales (as he then was) in Nagre and as followed by Lord Justice Underhill in Singh and Khalid . One does not need to demonstrate "compelling grounds" as asserted by Ms Isherwood.

As to the argument that the judge applied the Gulshan threshold as a 'compass' throughout his decision as to whether the removal was disproportionate, that is not how I understand the grounds to have been drafted. However, I am of the view that there is no indication in the decision that the judge applied Gulshan as a compass or other threshold concerning the proportionality assessment. I was not referred to any paragraph (other than paragraph 37 which simply mentions the 'reasoning' in Gulshan was borne in mind by the judge) which could corroborate or support that submission.

In conclusion, although the reference to Gulshan was unfortunate and infelicitous it did not affect the judge's decision-making nor preclude him from considering Article 8 substantively nor did it form the threshold upon which he decided whether removal might be proportionate or not.

Concerning the second ground, I also find this is misconceived. Although it is correct that the Court of Appeal stated in Miah that there is no "near miss" principle, this was clarified in my view by the later dicta of Lord Carnwath in the Supreme Court authority of Patel & Ors v Secretary of State for the Home Department [2013] UKSC 72 [at 56] which confirms as follows:

If further authority were necessary to establish this point, it can be found in the recent judgment of Lords Justice Sales in Secretary of State for the Home Department v SS (Congo) & Ors [2015] EWCA Civ 387 [at 56] which states as follows:

Therefore, it is clear from the above passage that the rules can form part of a proportionality assessment, much to the benefit of appellants it would seem. In this particular decision, it is clear to me that the reason why the judge referred to the rules at paragraph 38 was to gauge whether the decision taken by the Respondent was " in accordance with the law " in tackling the third limb of the Razgar test.

I was not persuaded by Ms Isherwood's submission that a judge should always start every Article 8 ECHR assessment by taking the Immigration Rules into account. In this particular scenario, it was for the judge to balance the facts as he saw them. It is not mandatory that a judge consider the extent to which the Immigration Rules are met where an appeal is advanced on Article 8 ECHR alone. If an appeal is not pursued on the basis that the Rules are met, a judge can immediately proceed to consider the appeal on its second stage outwith the rules. However, as stated above, the reference to the Rules in this particular decision did not adversely affect the overall approach taken by the judge anyhow but was a gauge to whether the decision was in accordance with the law. In light of the above, the second ground must also fail.

Regarding the third ground, I find that the judge made credibility findings upon the oral evidence before him (see paragraphs 25 and 34) and discussed the evidence he had heard as a whole. I find that the judge reached findings upon the evidence before him that were open to him and which he was entitled to reach. Those findings are neither perverse nor irrational in a Wednesbury sense.

In relation to the final ground that the decision failed to apply the guidance in Kugathas and Ghising in assessing whether there is any family life, Ms Praisoody rightly accepted that this ground should not be pursued given that the judge found that family life was engaged (see paragraph 35 of the decision). Had that concession not been made, I still would have found against the Appellant on this issue given that the guidance in Ghising specifically requires a fact-sensitive assessment in determining whether family life is engaged between an adult-child and a parent, and that fact-sensitive assessment was performed and fell in favour of the Appellant and consequently it is difficult to see what possible complaint the Appellant can have had with that finding.

Therefore, in conclusion, the grounds do not reveal an error of law such that the decision should be set aside.

In the circumstances the appeal to the Upper Tribunal is dismissed and the decision of the First-tier Tribunal is affirmed.

The appeal to the Upper Tribunal is dismissed.