VA185972013

For the sake of convenience I shall refer to the appellant as the �entry clearance officer� and the respondent as �the claimant.�

The claimant is a citizen of Nigeria, born on 29 th June 1952. Her appeal against the entry clearance officer's decision dated 26 th September 2013 refusing to grant her an entry clearance as a visitor was allowed by First-tier Tribunal Judge Malins under the substantive immigration rule. He explicitly stated at paragraph 10 of the determination that this was not an appeal to which Article 8 of the European Convention on Human Rights could, in his judgment, apply.

On 12 th August 2014, Designated First-tier Tribunal Judge McCarthy granted the entry clearance officer permission to appeal. He stated that the grounds of application were well made. The Judge had recorded that the claimant applied for entry clearance on 16 th September 2013. That was after 25 th June 2013 when s.52 of the Crime and Courts Act 2013 came into effect, limiting the grounds of appeal in such cases to human rights and race relations.

He also noted the Judge's reference in his conclusions that this is not an appeal to which Article 8 could apply. Designated Judge McCarthy also stated that it was arguable that in the light of that finding and in the absence of any reliance on race relations grounds, the outcome is confused. The Judge gave no reasons for that finding and it may be that he did not think that he needed to do more, having allowed the appeal under the rules.

At the hearing on 23 rd September 2014, Mr Emezie accepted that the Judge had erred by allowing the appeal under the immigration rules. He submitted however that the Judge had failed to engage with or make any decision regarding Article 8.