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This is an appeal against a determination by Judge Debra Clapham, promulgated on 17 December 2013, dismissing the appellant�s appeal against refusal of entry clearance to join his mother and brother in the UK. It was conceded that the appellant could not meet the requirements of the Immigration Rules. His case was argued only under Article 8 of the ECHR, outwith the Rules.
The grant of permission to appeal to the Upper Tribunal was on the basis of arguable failure adequately to consider the Razgar guidance and the human rights of the appellant�s younger brother.
Gulshan (Article 8 - new rules - correct approach) [2013] UKUT 640 (IAC) reviewed the case law to date and put the test in this way. A fter applying the requirements of the Rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them.
The Rules establish a scheme under which family reunion is permitted. There was little, if anything, requiring this case to go beyond that scheme.
Whether family life exists between an adult and a parent, or between siblings, is a mixed question of fact and law, but primarily of fact, for a judge to resolve. The judge was entitled to find on the evidence in this case that family life for Article 8 purposes was not constituted.
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