IA246442014

This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Trevaskis, who sitting at Newport on 26 November 2014 and in a determination subsequently promulgated on 10 December 2014 allowed the appeal of the Respondent (hereinafter called the claimant), a citizen of India born on 22 November 1989, against the decision of the Secretary of State dated 23 May 2014 refusing his application for indefinite leave to remain on the basis of his relationship with Jordana Coulstock (the Sponsor).

In his determination at paragraph 4, the First-tier Tribunal Judge recorded as follows:

�4. It was confirmed at the outset of the hearing by both representatives that it was accepted by the Respondent that there was a genuine and subsisting relationship between the Appellant and the Sponsor; it was accepted by the Appellant that he cannot meet the requirements for the grant of family life based upon Appendix FM of the Immigration Rules. The sole issue on which this appeal is based is the proportionality of the decision to remove the Appellant, by reference to Article 8 of the ECHR.�

The Judge having noted that it was conceded that the Appellant did not qualify for leave as a partner under Appendix FM thus dismissed the appeal under the Immigration Rules but then went on to consider whether the appeal required to be considered according to the provisions of Article 8. In that regard, the Judge made reference to the guidance of the Court of Appeal in MM [2014] EWCA Civ 985 as follows:

�If the applicant cannot satisfy the Rule, then there either is or there is not a further Article 8 claim. That will have to be determined by the relevant decision-maker.�