" In the case of appeals brought against refusal of entry clearance under Article 8 ECHR, the claimant's ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal, but is capable of being a weighty, though not determinative, factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control."
I read also briefly from the head note of Kaur :
"In visit appeals the Article 8 decision on an appeal cannot be made in a vacuum. The starting-point for deciding that must be the state of the evidence about the appellant's ability to meet the requirements of paragraph 41 of the Immigration Rules."
Having regard to the principles enunciated in both authorities I am satisfied the judge did not make an error of law. The judge first considered whether there was in fact family life between the claimant and his wife. Given that they are spouses, and given the very legitimate reasons why the sponsor remains in the UK separated from his partner (as a result of his previous brain tumour and the medical treatment he received for it) I am entirely satisfied that the judge was entitled to find that not only was there family life but that the refusal of entry clearance constitute a breach with that family life.
The judge went on to consider whether the breach was lawful and then considered whether the refusal was proportionate in all the circumstances. In considering proportionality the judge specifically found that the claimant had met all the requirements of the Immigration Rules. The judge gave sustainable reasons for his conclusion that the claimant only intended to enter the United Kingdom as a visitor, having regard to the substantial links that she maintained with Sri Lanka.
Having thus found that the Immigration Rules were met the judge went on to consider the relevant factors in Section 117B of the 2002 Act. The judge gave appropriate weight to those factors and, noting that the requirements of the immigration rules were met, concluded that the decision to refuse entry clearance was disproportionate. This was a decision that was open to the judge on the evidence before him and for the reasons that he gave. In these circumstances I can identify no material error of law and I dismiss the Entry Clearance Officer's appeal and uphold the initial decision by the First-tier Tribunal.
Notice of Decision
The decision of the First-tier Tribunal contained no error of law.
The decision of the First-tier Tribunal allowing the appeal stands.
No anonymity direction is made.
Signed Date
Upper Tribunal Judge Blum