OA027852014 & Ors.

On 15 th January 2015 Judge of the First-tier Tribunal Parkes gave permission to the respondent to appeal against the decision of Judge of the First-tier Tribunal S J Pacey in which he allowed the appeals against the decision of the respondent to refuse entry clearance for the first named appellant as a partner and the second and third named appellants as her children in accordance with the provisions of Appendix FM of the Immigration Rules.

At the commencement of the hearing before me Mr McVeety conceded that more recent case law has overtaken the guidance set out in Gulshan . The need to identify compelling circumstances was not required. He indicated that the respondent would rely upon the grounds but he had no further comment to make.

Mr Royston drew attention to the Rule 24 response which submits that the argument in the grounds is misconceived bearing in mind, inter alia, the decision of the Court of Appeal in MM [2014] EWCA Civ 985 . The grounds were in error in referring to a test of unjustifiable harshness in relation to return to Sudan. Further, there was no evidence from either party that the appellant could reside permanently in Sudan.

Mr Royston also expanded upon the grounds by emphasising that the judge had applied the correct tests and given appropriate consideration to proportionality. It was self-evident that the sponsor could not go to Sudan as Eritrea was his country of origin and his other family members were living unlawfully in Khartoum as the conclusions of the judge in paragraphs 21 to 24 make clear.

After hearing the submissions particularly bearing in mind the comments made by Mr McVeety I indicated that I was satisfied that the decision did not show an error on a point of law and now give my reasons for doing so.