VA186722013

This is the appeal of the Secretary of State against the determination of First-tier Tribunal Judge Sangha promulgated on 13.8.14, allowing, on human rights grounds, the claimant�s appeal against the decision of the respondent, dated 2.10.13, to refuse her application made on 26.9.13 for entry clearance as a visitor, pursuant to paragraph 41 of the Immigration Rules. The Judge heard the appeal on 18.6.14.

At the outset of the hearing and after hearing submissions on the point I granted leave to Mr Whitwell to amend his grounds to include procedural error of law.

The remaining argument in the grounds of appeal is that the judge should not have gone on to consider article 8 outside the Immigration Rules without consideration of the Rules in relation to family and private life and without applying Gulshan [2013] UKUT 640 (IAC) to the effect that the consideration outside the Rules should only be done if the judge has identified compelling circumstances insufficiently recognised in the Rules such that the decision is unjustifiably harsh.

There is little merit in this ground. It is arguable that in considering the human rights claim, the judge should perhaps have first considered Appendix FM in relation to family life, but pursuant to section 86 of the 2002 Act, the Tribunal was obliged in any event to consider the human rights claim raised in the grounds of appeal and to refuse to do so would have been a breach of article 6 ECHR. Inevitably, the judge was required to proceed to an article 8 assessment, whether or not there were compelling or exceptional circumstances.

However, I find that the article 8 assessment of the First-tier Tribunal was flawed in a number of respects, quite apart from the admission of inadmissible evidence and a failure to focus on the circumstances prevailing at the date of decision.