OA245332012

The Appellant, a national of Bangladesh, date of birth 10 March 1998, appealed against the Respondent�s decision, dated 23 October 2012, to refuse entry clearance for settlement as the spouse of the Sponsor with reference to paragraph 281 of the Immigration Rules HC 395 (The Rules).

The appeal against that decision came before First-tier Tribunal Judge Majid (The Judge) who, on 7 November 2013, dismissed the appeal under the Rules but made no decision with respect to a claim, in the grounds of appeal, based on Article 8 of the ECHR. Permission to appeal the judge�s decision was given by First-tier Tribunal Judge Foudy on 31 March 2014.

The judge�s reasoning for rejecting the evidence was that simply the evidence had been received after the date of the Respondent�s decision. However it was not appoints based scheme (PBS) case. It is clear that the judge has failed to appreciate the significance of Section 85 of the 2002 Act and had also failed to understand or apply the case of DR (ECO: post-decision evidence) Morocco* [2005] UKIAT 00038 .

I find that the original Tribunal�s decision cannot stand: The matter will have to be remade. In the light of findings or conclusions reached the sole issue remains, in remaking it, is whether or not the Appellant met the accommodation requirements under the Rules.

A number of points therefore arise. First, the application was originally made around about 5 July 2012. If that is the correct date it predated the changes to the Rules on 9 July 2012 but it does not seem to me that makes a difference. It is not asserted that the Appellant could have succeeded under the amendments to the Rules in any event. Essentially the argument has therefore solely addressed �old� Article 8 considerations.