OA023162014

In this decision the Appellant is referred to as the ECO and the Respondent is referred to as the Claimant.

The Claimant, a national of Nigeria, date of birth 3 December 1990, appealed against the ECO's decision, dated 10 January 2014, to refuse entry clearance to the Claimant as an adult dependent relative under Appendix FM of the Immigration Rules HC 395 (as amended) with particular reference to paragraphs EC-DR.1.1 and EC-DR.2.4 and 2.5 with respect to paragraphs EC-DR.1.1(b) of Appendix FM.

The application was misconceived and proceeded upon the erroneous basis that the Claimant was a dependent relative under the old Immigration Rules (paragraph 317) and so it was certain to fail. However, in the grounds of appeal to the First-tier Tribunal, Article 8 ECHR grounds were raised: The terms of those grounds are, it is fair to say, discursive and wide-ranging. Any judge preparing for an appeal, if those Article 8 grounds were to be pursued, should have clarified with the parties at the outset of the hearing of the appeal if those matters or some of them were no longer material.

With the appeal grounds the Entry Clearance Manager on 5 September 2014 set out a substantive response which does not appear to have been raised with First-tier Tribunal Judge Majid (the Judge) at the outset or what was the true nature of the Article 8 claim being pursued by the Claimant. The Judge allowed the appeal on Article 8 ECHR grounds. Permission to appeal was granted by First-tier Tribunal Judge Cox on 10 June 2015.

The matter was further complicated to a degree by the fact that in the skeleton argument from a Ms Manyarara, Counsel, the issue of the Appellant's sexuality was raised but not addressed by the Judge. Ms Bond tells me, and I fully accept what she has said, that there are 'one line' references to the issue in witness statement evidence which the Judge records he has read and taken into account, see paragraph 10 of the Decision and Reasons.