IA026342014

Parties are as described above, but are referred to in the rest of this determination as they were in the First-tier Tribunal.

The appellant applied on 6 July 2012 for indefinite leave to remain, based on his residence in the UK since 3 July 1997. The SSHD refused that application by letter dated 11 December 2013 under the Immigration Rules as amended on 9 July 2012 (the �new Rules�), in particular Appendix FM and paragraph 276ADE.

The appellant appealed to the First-tier Tribunal. In his determination promulgated on 6 May 2014, Judge Farrelly held that the appellant�s case based on paragraph 276ADE(vi) was misconceived. He then referred to the case law on the criteria for considering Article 8 ECHR outwith the new Rules, and went on to allow the appeal under Article 8.

The SSHD appeals to the Upper Tribunal on the grounds that although the judge cited the relevant cases, including Gulshan [2013] UKUT 640 , he failed to identify arguably good grounds for going outside the Rules, or any compelling circumstances not sufficiently recognised under the Rules. Mrs O�Brien submitted that the case disclosed no significant barriers to the appellant�s return, and that his simple presence here for a lengthy period falling short of what the Rules required could not be a reason for going beyond the Rules.

Mr Stevenson referred to Edghill [2014] EWCA Civ 402 . He said that in view of the date of the application leading to these proceedings, the new Rules did not apply. The point had not been taken previously, but, once noticed, the case had to be approached on the correct basis. The judge had therefore been right, even if for the wrong reasons, to look at Article 8 beyond the requirements of the new Rules. The outcome reached on proportionality in that light was open to the judge and showed no legal error.