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On 28 th May 2014 Designated Judge of the First-tier Tribunal Digney gave permission to the respondent to appeal against the determination of Judge of the First-tier Tribunal Dickinson in which he allowed the appeal under the Immigration Rules and on human rights grounds against the decision of the respondent to refuse entry clearance as a partner in accordance with the provisions of Appendix FM and FM-SE of the Immigration Rules.
In granting permission Designated Judge Digney thought it arguable that the judge was wrong to apply section EX.1 of Appendix FM to his consideration of the application of the Immigration Rules and that the judge was also arguably wrong, in the light of jurisprudence in existence at the time of the decision, to allow the appeal under Article 8.
I heard brief submissions from Ms Johnstone who asserted that the decision of the Court of Appeal in MM and Others [2014] EWCA Civ 985 had overturned the approach recommended in Gulshan and had endorsed the maintenance requirements of the Rules which could not be regarded as disproportionate. She also pointed out that, at paragraph 27 of the determination, the judge was wrong to consider that maintenance requirements could now be met when, as the application was for entry clearance, the future financial position of the parties could not be considered.
As the sponsor was unrepresented I assisted her to make submissions after I had explained the nature of the proceedings to her. She emphasised that, at the time of the hearing, she had been working for six months and, coupled with the sums she received from her son she had the required amount to maintain her husband under the Rules. However, Ms Johnstone pointed out that the rental income from the son was not admissible as the provisions of Appendix FM-SE required evidence of the contract for such income which had not been provided.
After I had considered the matter for a few moments I announced that I was satisfied that the determination showed an error on a point of law such that it should be re-made. My reasons for that conclusion follow.
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