OA084052013 & OA084042013

The appellants� appeals against decisions to refuse them entry clearance to enable them to join their father in the United Kingdom were dismissed by First‑tier Tribunal Judge A J Parker (�the judge�) in a determination promulgated on 13 th May 2014. The appellants are citizens of Afghanistan. Their application was made from Pakistan, where they have lived since 2001. Their mother also appealed against a similar adverse decision but, sadly, she has since passed away.

An application for permission to appeal was dismissed by the First‑tier Tribunal and then renewed. On 1 st October 2014, an Upper Tribunal Judge granted permission, finding that it was arguable, inter alia, that the judge may have failed to assess the best interests of the minor appellant and may have erred in his conclusions.

The judge had in mind all the evidence, made plain that the requirements of the rules were not met and took the financial position into account in his assessment. He was entitled to observe, at paragraph 18, that a further application might be made.

The apparent reliance on Gulshan was a red herring. Even assuming that there is no intermediate test or threshold, the judgment of the Court of Appeal in Haleemuddin showed that the rules formed part of the Article 8 assessment. In most cases, the rules would cater for Article 8 considerations. Read overall, it was clear that paragraph 19 of the determination was simply part of the reasoning process and not a brief dismissal of the section 55 duty. The best interests of the minor appellant were clearly considered and taken into account.

Nor did the judge err in relation to the difficulties the sponsor might face in returning to Pakistan. The proper test was not simply whether he was able to return to that country. The judge concluded that the need to maintain immigration control was an important part of the assessment in this context and, again, paragraph 22 followed his earlier findings. Overall, there was no material error of law.