OA135692013

This is the Entry Clearance Officer�s appeal against a decision of First-tier Tribunal Judge Pirotta which was made in a determination promulgated on 5 February 2014 following a hearing at Birmingham on 29 January 2014. For ease of reference throughout this determination I shall refer to Mr Rameez who was the original appellant as �the claimant� and to the Entry Clearance Officer who was the original respondent as �the Entry Clearance Officer�.

On appeal the judge while finding that the requirement was not technically met did find at paragraph 18 that �[the sponsor] has established in this appeal by equally probative evidence that the facts are as stated and that she does meet the income threshold stipulated in Appendix FM�. The judge gave her reasons for this decision at paragraphs 24 and 25 as follows:

�24. The decision to refuse entry on the basis of the Appendix FM criteria is not unreasonable in the circumstances when made but the persistence of that decision is not proportionate and there ... exists sufficient compelling, compassionate circumstances to conclude that it would be unreasonable to require the appellant to make a fresh application which would be bound to succeed. The decision to require the appellant to meet the criteria of Appendix FM in a fresh application interferes with her Article 8 rights to private and family life with the appellant.

To require a fresh application would involve further delay and expense, merely to comply with the strict criteria of the Immigration Rules. Delay and further expenses in these circumstances would breach the rights of the appellant and sponsor to Article 8 rights to private and family life and would not be justified or proportionate to the policy of immigration control or the fair application of entry criteria to all applicants.�

On behalf of the Entry Clearance Officer Ms Isherwood submits that there being a requirement under Appendix FM(SE) to supply evidence in specified form, the appeal was bound to fail under the Rules and that in order for such an appeal to succeed under Article 8 there had to be a finding that this case was out of the ordinary; it was not open to the judge just to ignore the requirements of the Rules and the decision accordingly had to be set aside and re-made.