OA116832014

In response Mr Caswell said that if there was an error the matter should be resolved by a fresh Article 8 assessment in the Upper Tribunal. He accepted that the judge had recited evidence relating to subsequent events following the date of decision but the depth of tie between Hannah and the Claimant existed as at the date of decision.

In his evidence before me the Sponsor said that it would not have been possible in 2014 for him to have returned to Zambia to take up a position as a minister. He had transferred from a Pentecostal Church to the Methodist Church and had been released by the Pentecostal Church with a blessing. His position was no longer open to him and new positions in Zambia would be taken by recently graduating ministers, of whom there was no shortage. He would have no work were he to return. His intention had been to see how his ministry would evolve in the United Kingdom.

That Article 8 may be an available means for family entry is clear from various cases, including in particular A (Afghanistan) v SSHD [2009] EWCA Civ 825 . Each case must be considered on its merits. It was not in dispute that it was appropriate to go beyond the Rules in this case as there were compelling reasons to do so. It was also not in dispute that there was sufficient interference or lack of respect for family life to engage Article 8. The remaining issue was therefore one of proportionality.

(1) The making of the decision by the First-tier Tribunal involved an error on a point of law and I have set aside that decision. I have remade the decision and for the reasons set out above the appeal of Nancy Kasema is allowed under Article 8, ECHR.

(2) There was no request for a fee award. The outcome of this appeal was not obvious and I have only reached the decision that I have in the light of argument and oral evidence. In the circumstances a fee award is not appropriate.