IA246772013

I shall refer to the appellant as the respondent and to the respondent as the appellant (as they appeared respectively before the First-tier Tribunal).

The appellant, Karen Ho Man Au, was born on 5 March 1990 and is a citizen of New Zealand. She appealed against the decision dated 13 May 2013 to refuse her application for leave to remain in the United Kingdom on the basis of ten years' long residence (paragraph 276B of HC 395 (as amended)). She appealed to the First-tier Tribunal (Judge Khawar) which, in a decision promulgated on 16 February 2015, allowed the appeal on Article 8 ECHR grounds. The Secretary of State now appeals, with permission, to the Upper Tribunal.

"... the UK cannot be said to be both 'secular and divine'. Human rights jurisprudence is to be neutral as between those of differing religions and those who eschew religion altogether. The religious value, or otherwise, of the appellant's activities as an organ scholar is accordingly an irrelevant consideration."

The respondent accepts [5] that "it could in principle be permissible to find the appellant's activities affected the proportionality calculus by virtue of their objective value to society ... but not, as in the instant determination, on the basis of their religious values". The respondent relied upon the judgment of the Court of Appeal in McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 .