IA223882013

The appellant�s appeal against a decision to refuse to vary her leave was allowed by First-tier Tribunal Judge Wiseman (�the judge�) in a determination promulgated on 18 th November 2013. The judge found that the requirements of paragraph 297 of the rules were met. He allowed the appeal on this basis and also under Article 8 of the Human Rights Convention.

It was also contended that the judge erred in allowing the appeal under Article 8. The appellant arrived here as a visitor, had no legitimate expectation that she will be able to remain and any ties established here in the United Kingdom were done so while she had precarious status. There were no exceptional or very compelling circumstances that would result in an unjustifiably harsh outcome and so the judge erred in allowing the appeal.

Permission to appeal was granted on 5 December 2013 on the basis that it was arguable that the judge erred as paragraph 297 relates to entry clearance cases and when the First-tier Tribunal introduced the issue, the appellant was too old to qualify.

Ms Lloyd said that the sponsor�s indefinite leave was expressly raised in the grounds of appeal. It was fair to observe that the solicitors did not expressly refer to paragraph 298 of the rules. Nonetheless, chapter 8 of the appropriate guidance revealed that serious or compelling considerations fell to be assessed by decision-makers. Overall, the issues were canvassed before the judge. The guidance was contained in Annex M to the IDIs, in chapter 8, section 5A. This governed applications by children and specifically where serious and compelling reasons were said to be present.

In substantial acceptance of Mr Deller�s analysis and Ms Lloyd�s complimentary submissions, I conclude that no material error of law has been shown. By the time the appeal was heard, a combination of the circumstances in which the first decision was withdrawn, the sponsor�s indefinite leave, the section 120 notice in the second decision and the way in which the case was put to the judge all combined to enable him properly to consider the immigration rules. No material error is shown in his identification of the correct paragraph as 297 rather than 298.