OA060282015

The appellant before the Upper Tribunal is the Secretary of State for the Home Department and the respondent is a citizen of Brazil born on 4 April 1999. However, for the sake of convenience, I shall continue to refer to the latter as the "appellant" and to the Secretary of the State as the "respondent", which are the designations they had in the proceedings before the First-tier Tribunal.

The appellant's appeal to the First-tier Tribunal was against the decision of the respondent dated 24 February 2015 to refuse his application for indefinite leave to remain under Appendix FM of the Immigration Rules.

A Judge of the First-tier Tribunal, Page gave the Secretary of State permission to appeal against the decision stating that it is arguable the Judge erred in finding that there are serious and compelling family or other reasons which make the appellant's exclusion from the United Kingdom undesirable.

Having considered the decision as a whole, I find the Judge's consideration of the appellant's appeal in respect of the Immigration Rules is materially flawed and based on sympathy for the appellant and not on the law. It was accepted that the sponsor did not have sole responsibility for the appellant, living in Brazil with his mother, as he was. The appellant's mother has always looked after the appellant and the appellant's father provided financial assistance for the appellant's upkeep.

The Judge found the appellant's evidence to be truthful and credible and this no doubt was the case but the success or failure of this appeal does not rest on the credibility of the appellant. The Judge gave no reasons for finding that the appellant circumstances have changed and his exclusion from this country has now become serious and compelling.