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The appellant before me, is the Secretary of State for the Home Department. However, for ease of reference, in the course of this decision I shall adopt the parties' status as it was before the First-tier Tribunal. I shall in this decision, refer to Mr. Smith as the appellant and the Secretary of State as the respondent.
"31. ...I find that the appeal must be allowed under the immigration rules and specifically Appendix FM in relation to the partner route. I am satisfied that both the suitability and eligibility criteria within Appendix FM are both engaged and satisfied. I do accept, on balance, that there is credible and consistent evidence that both the appellant and his partner Alicia are in a genuine and subsisting relationship akin to marriage, even though they have had their problems from time to time. I accept that Alicia is a British Citizen, having considered her original British passport.
I accept that the parties are living together and intend to do so permanently in the United Kingdom. I also accept that there is credible evidence, emanating both from the appellant and Alicia's mother, explaining [sic] the circumstances as to why the partner is unable to attend the appeal hearing and give [sic] oral evidence. She has, nonetheless, provided the details which I find remains consistent with [sic] the oral evidence that I have received from both the appellant and Alicia's mother."
The Judge concluded, at [33], that the appeal must be allowed in relation to the provisions of Appendix FM in relation to the partner route. The Judge also accepted that there is credible evidence that the appellant is the biological father of the two children.
The respondent contends that in reaching his decision, the Judge failed to make any findings in respect of the exceptions set out at E.X.1(b) and EX.2 of Appendix FM. That is, the Judge failed to consider whether there would be any insurmountable obstacles to family life between the appellant and his partner continuing outside the UK, and if there are any such insurmountable obstacles, what they are. The Judge therefore erred in failing to consider a material issue.
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