IA171012015

This is an appeal against the determination of First-tier Tribunal Judge I F Taylor, promulgated on 26 th October 2015, following a hearing at Nottingham Justice Centre on 14 th October 2015. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

Nevertheless, the judge went on to say that, "Be that as it may there is no real evidence that the Appellant and her husband are not currently at least in a genuine and subsisting relationship. All the evidence suggests that this is the case" (paragraph 18). The judge also accepted that the Appellant's husband was working in the UK as a takeaway delivery driver, "and most, if not all, of his relatives reside in the United Kingdom including his elderly mother with whom both he and the Appellant live" (paragraph 18).

The grounds of application state that the judge failed to properly consider the appeal of the Appellant for protection outside the Rules and in particular failed to follow the Razgar five step process. As far as Article 8 was concerned this was addressed only very briefly without reasons.

On 25 th April 2016, a Rule 24 Response was entered by the Respondent and it was observed that the Appellant's representative, Mr Read, had himself stated that he would have to accept that the case was "not the strongest" under the Immigration Rules (see paragraph 14). As far as Article 8 was to be considered this had to be read in the context of Section 117 of the NIAA 2001. It was simply not credible that a delay of two and a half years to regularise one's stay could be explained away on the basis that there had been bereavement in the family.

For his part, Mr McVeety submitted that the case of SS (Congo) left it open to the decision-maker to decide which way to strike the balance. Article 8 was not a backstop. Two and a half years was a substantial period of time to overlook the duration of the visa in circumstances where the grant had been for only two years. One was looking here not at a period of overstay of two months but of two and a half years.