OA060062013

This is her appeal against the determination of First-tier Tribunal Judge Harrington, who dismissed her appeal against the decision of the respondent, dated 24.1.13, to refuse entry clearance to the United Kingdom to settle as the spouse of Daniel Anno Opoku, a British citizen present and settled in the UK.

There is no EX1 provision available under Appendix FM for out of country settlement applications and thus �insurmountable obstacles� test, which is part of EX1, does not arise. It is not clear to me why the judge applied that test at �27 of the determination, though the considerations set out there may be relevant to proportionality of the decision. However, this is not a material error of law as it played no part of the ultimate decision in the appeal.

In Gulshan (Article 8 - new Rules - correct approach) [2013] UKUT 640 (IAC) has set out, inter alia, that on the current state of the authorities:

(a) the maintenance requirements of E-LTRP.3.1-3.2 stand, although Blake J in R (on the application of MM) v Secretary of State for the Home Department [2013] EWHC 1900 (Admin) said that they could constitute an unjustified and disproportionate interference with the ability of spouses to live together; he suggested that an appropriate figure may be around �13,400, and highlighted the position of young people and low wage earners caught by the higher figure in the rules;

(b) after applying the requirements of the Rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them: R (on the application of) Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin) ;