United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/20373/2016

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On 14 November 2018	On 18 January 2019

Before

 

UPPER TRIBUNAL JUDGE O'CONNOR

 

 

Between

 

hanna [z]

(ANONYMITY DIRECTION not made)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Mr E Fripp, instructed by Danielle Cohen Immigration Law Solicitors

For the Respondent: Mr N Bramble, Senior Presenting Officer

 

 

DECISION AND REASONS

Introduction

1.              The appellant is a citizen of Belarus, born on 20 January 1986. On 7 July 2016 she made an application for entry clearance as the partner (spouse) of [LZ], a British citizen.

 

Immigration Rules

2.              It is prudent at this early juncture to set out the Immigration Rules which are said to impinge upon the decision-making process, so that what follows can be put in its proper context:

" Section EC-P: Entry clearance as a partner

EC-P.1.1. The requirements to be met for entry clearance as a partner are that:

(a)           the applicant must be outside the UK;

(b)           the applicant must have made a valid application for entry clearance as a partner;

(c)           the applicant must not fall for refusal under any of the grounds in Section S-EC: Suitability - entry clearance; and

(d)          the applicant must meet all the requirements of Section E-ECP: Eligibility for entry clearance as a partner.

 

Section S-EC: Suitability - entry clearance

S-EC.1.1. The applicant will be refused entry clearance on grounds of suitability if any of paragraphs S-EC.1.2. to 1.9. apply.

S-EC.1.2. The Secretary of State has personally directed that the exclusion of the applicant from the UK is conducive to the public good.

S-EC.1.3. The applicant is currently the subject of a deportation order.

S-EC.1.4. The exclusion of the applicant from the UK is conducive to the public good because they have:

(a) been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; or

(b) been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 12 months but less than 4 years, unless a period of 10 years has passed since the end of the sentence; or

(c) been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 12 months, unless a period of 5 years has passed since the end of the sentence.

S-EC.1.5. The exclusion of the applicant from the UK is conducive to the public good because, for example, the applicant's conduct (including convictions which do not fall within paragraph S-EC.1.4.), character, associations, or other reasons, make it undesirable to grant them entry clearance. ..."

3.              Paragraph 320(11) of the Immigration Rules falls within Part 9, headed: "General grounds for the refusal of entry clearance ...":

" 320 In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts 2-8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal of entry clearance or leave to entry apply:

Grounds on which entry clearance or leave to enter the United Kingdom is to be refused

...

Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused

...

(11) Where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by:

(i) overstaying; or

(ii) breaching a condition attached to his leave; or

(iii) being an illegal entrant; or

(iv) using deception in an application for entry clearance, leave to enter or remain or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);

and there are other aggravating circumstances, such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process."

Entry Clearance Officer's decision

4.              The appellant's application for entry clearance was refused by an Entry Clearance Officer ("ECO") in a decision dated 27 July 2016 which, in its material part, states:

" The Decision

EC-P.1.1(c) - Section S-EC: Suitability-Entry Clearance Requirements

ECO's Reasons for refusal

-¢               You state that you illegally entered the UK in 2004 and that you left the UK in August 2015. During some eleven years you remained in the UK, and the documents you have submitted do not demonstrate you made any attempt to regularise your immigration status during this entire time. Furthermore the documents you have submitted do not demonstrate how you supported yourself during this period.

-¢               Police Records show that you were sentenced to a 3 months custodial sentence for assaulting a Constable in 2006. You served 6 weeks in prison. Furthermore, Police records show that you provided multiple aliases to the authorities. The documents you have submitted do not demonstrate that any attempt was made during this time to declare you were an illegal entrant.

-¢               Police Records also show you were convicted of theft in 2011, I note you have not declared this on your application.

-¢               Given the violent nature of your previous criminal actions, and the non declaration of further convictions, as well as your use of deception to the authorities with aliases and being an illegal entrant and remaining in the UK for some eleven years making no attempt during this time to regularise your status, I am satisfied that you have previously contrived in a significant way to frustrate the instructions of the Immigration Rules. I therefore refuse your application under Paragraph 320(11).

It has also been considered whether the particular circumstances set out in your application constitute exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant a grant of entry clearance to the United Kingdom outside the requirements of the Immigration Rules.

In support of your claim you state your sponsor is a British national with family and employment in the UK.

This has been carefully considered. However the documents you have submitted do not demonstrate that your sponsor is not free to travel outside the UK. You have submitted his valid UK passport and have declared that your sponsor has previously met you in multiple locations outside of the UK since your departure from the UK.

It has therefore been decided that there are no exceptional circumstances in your case. Consequently your application does not fall for a grant of entry clearance outside the rules."

5.              The following observations can be made in relation to this document:

(i)             The ECO wrongly relied upon the fact that the appellant had been convicted of theft in 2011. There has been no such conviction;

(ii)          Consequently, the ECO wrongly relied upon the appellant's failure to disclose this conviction in her application for entry clearance;

(iii)        The ECO's decision does not assert that the appellant fails to meet any of the Eligibility requirements of immigration rule (found in section E-ECP);

(iv)        Although the ECO's decision refers to the Suitability requirements of the immigration rule (found in section S-EC), it does not specify which, if any, of those requirements are relied upon in refusing the application. The reasoning provided by the ECO for refusing the application does not show an affinity with any the Suitability requirements;

(v)           Reliance is placed by the ECO on paragraph 320(11) of the Rules. However, the the reasons provided by the ECO in this regard do not support the contention that the ECO was aware that the application of this rule is discretionary and not mandatory. Of course, even if this were not correct any exercise of discretion was undertaken on the basis of an inaccurate factual matrix (see (i) and (ii) above).

First-tier Tribunal's decision

6.              The appellant appealed against the ECO's decision to the First-tier Tribunal. That appeal was heard before First-tier Tribunal Judge M A Khan and First-tier Tribunal Judge C A S O'Garro on 13 February 2018 and dismissed in a decision sent to the parties on 27 March. The First-tier Tribunal gave the following reasons for its decision:

 

" Conclusions as to this Appeal

...

24. In her statement, the Appellant accepts that she purchased an Israeli passport in Ukraine and used this document to enter the United Kingdom in 2004. She immediately started to work illegally in this country. The Appellant was aware she had entered the United Kingdom illegally and that she was working illegally.

25. The Appellant accepts the fact that in 2006, she got involved in a fight and the police were called. She assaulted a police officer; she was convicted and sentenced to three months imprisonment. She states this was long time ago and she regrets committing it. However, an offence of this nature against any member of public is serious enough but assaulting a police officer, those who are responsible for keeping law and order is inexcusable. However, this as the Appellant states, this incident took place in 2006 at the time she was aged 20 years.

26. The Appellant used various aliases during her overstaying in the United Kingdom, such as Katerina [B], Eskaterina [B] and Losenva [H]. When she was arrested, she gave her name as Katerina [B] because she was afraid if she told the truth she would be sent back to Belarus.

27. The Appellant accepts that she remained in the United Kingdom until 2015, a period of 11 years before voluntarily returning to Belarus to make an application for entry clearance as a partner.

28. Immigration Rules

...

29. Paragraph 320(11) uses the word "or" after each sub paragraph. This means any one sub paragraph applies and there are other aggravating circumstances, the refusal under 320(11) is made out. In this case the Appellant entered the United Kingdom illegally, using deception and overstayed by 11 years.

30. The aggravating feature in the Appellant's case is that she used multiple identities in order not to be detected by the UK Immigration authorities. In the circumstances, I find that the Appellant has previously contrived in a significant way to frustrate the intention of the Immigration Rules.

31. On the evidence before me on the balance of probabilities I find that the ECO decision to refuse the Appellant's application under paragraph 320(11) is made out and totally justified and is upheld.

32. As for the Appellant's rights under Article 8 of ECHR are concerned, both the Appellant and the sponsor were aware of the Appellant's immigration history, they were would also be aware of the fact that she may be refused any application for entry clearance. They entered into the relationship knowing the consequence.

33. There are no exceptional circumstances in this case other than the sponsor having lived in the UK for over 20 year, his parents are in this country and he has a job here. I find that these matters do not form exceptionality. In the circumstances, I find that there is no breach of Article 8 of the ECHR and the Appellant's and the sponsor's family and private life can continue outside the United Kingdom."

Decision and Discussion: Setting aside of FtT's Decision

7.              Resident Judge Philipps granted the appellant permission to appeal to the Upper Tribunal in a decision dated 1 August 2018. Thus, the matter came before me.

8.              At the hearing, Mr Bramble accepted that the First-tier Tribunal's decision contains an error of law. He submitted, however that given that there was only one possible outcome to the appeal, i.e. that it should have been dismissed, the First-tier Tribunal's decision should not be set aside. In response, Mr Fripp submitted that not only should the FtT's decision be set aside but that, upon re-making, the appeal should be allowed and that this was the only rational decision open to the Tribunal.

9.              Returning to the task before me; as was accepted to be the case by Mr Bramble, I find that the First-tier Tribunal's decision contains an error of law; indeed, it contains numerous errors of law. However, given the aforementioned concession I need only briefly set the out the nature of these errors.

10.          First, the First-tier Tribunal failed to engage with the issue of which, if any, of the suitability requirements (in S-EC) were relied upon by the ECO and, if relied upon, whether any of these requirements had been made out. The Tribunal's decision is entirely silent on this whole issue. Second, the First-tier Tribunal erred in its consideration of paragraph 320(11) of the Rules by (i) failing to direct itself that the application of this paragraph is discretionary; and (ii) failing to consider the exercise of such discretion. In short, the First Tribunal considered that the ECO had made out his case under paragraph 320(11) simply as a consequence of the fact that there were 'aggravating features' to the appellant's immigration history in the UK. This is an unlawful approach. If the FtT did consider the exercise of discretion under paragraph 320(11) then it did so absent the required consideration the appellant's circumstances as a whole.

11.          Turning to the decision on the Article 8 ECHR ground, which was the only issue determinative of the appeal, the proportionality assessment is necessarily informed by a lawful assessment under the Rules - the Immigration Rules setting out the Secretary of State's (ECO's) position as to where the public interest lies in any given case. As previous indicated, the FtT's assessment of the application of the Rules was not lawful and the failures in that regard necessarily impinged on the Tribunal's assessment of the Article 8 ground.

12.          Finally, I reject Mr Bramble's contention that there is only one possible outcome to this appeal i.e. that it was bound to be dismissed. Given this finding and the finding that the First-tier Tribunal's decision contains an error of law, I exercise my discretion so as to set aside the decision of the First-tier Tribunal.

Decision and Discussion: Re-making of decision on appeal

13.          Having orally given my decision setting aside the First-tier Tribunal's determination, both parties indicated that they were content to continue immediately to the re-making of the decision under appeal.

The Facts

14.          The evidence given by the appellant and Mr [Z] is summarised in the First-tier Tribunal's decision, and Mr [Z] gave further oral evidence before the Upper Tribunal, which was not the subject of cross examination.

15.          The relevant factual matrix is broadly as follows. The appellant unlawfully entered to the United Kingdom in 2004 using a false Israeli passport and she remained here until 2015 without leave. During that time the appellant worked illegally in the UK.

16.          In 2006, following a struggle in a nightclub, the appellant was involved in an altercation which led to her being convicted of assaulting a constable. She was sentenced to three months in prison. Upon arrest the appellant gave a false name in an attempt to decrease the likelihood of her being removed to Belarus.

17.          The appellant met Mr [Z] in June 2011. Mr [Z] is dual Ukrainian and British national. The relationship developed to the extent that they moved in together approximately eighteen months later, living with Mr [Z]'s mother, and they continued to reside together until the appellant left the United Kingdom. In January 2014, Mr [Z] divorced his former wife. Shortly thereafter, the appellant and Mr [Z] became engaged to marry.

18.          The appellant left the United Kingdom voluntarily on 28 August 2015 and she and Mr [Z] were married in Moldova on 23 January 2016. They had a honeymoon together in Dubai and the instant application was subsequently made on 7 July 2016.

19.          The appellant and Mr [Z] speak to each other via WhatsApp every day and meet as often as possible. They met in Turkey from 16 to 20 June 2017 and they also met in Egypt between 16 and 21 April 2017. They spent time together in France over the 2017/2018 New Year, in Kiev in February 2018, in Cyprus in May 2018, in Kiev again in July 2018 and in Cyprus in October 2018. The couple wish to have a child together, but it is thought not to be appropriate at the current juncture given the ongoing proceedings.

20.          The sponsor asserts that he is not able to move to Belarus because he runs a concierge business in the United Kingdom and his parents also live here, with whom he has a very close relationship. His parents are British.

Submissions

21.          Mr Bramble relied upon the Entry Clearance Officer's decision letter of July 2016 save for those passages which placed reliance on the appellant having been convicted of theft in 2011. It is accepted that there was no such conviction. As to paragraph ECP.1.1(c) of the Rules, Mr Bramble relied upon the appellant's failure to meet the requirements of S-EC.1.5, asserting that it would not be conducive to the public good to allow the appellant to come to the United Kingdom as Mr [Z]'s spouse. He directed attention to the appellant's acceptance that she had entered the United Kingdom on a false passport in 2004 and that she had been convicted of assaulting a police officer in 2006, using a false identity at that time. He submitted that the weight to be attached to the appellant having voluntarily left the country has been diminished as consequence of her having taken legal advice prior to her having done so. Mr Bramble relied upon the same matters in support of his submissions on the application of paragraph 320(11) of the Rules - asserting that the appellant had previously contrived in a significant way to frustrate the intentions of the Rules.

22.          Turning to Article 8 Mr Bramble reminded the Tribunal of the provisions of section 117B of the 2002 Act and the public interest in maintaining effective immigration control. He submitted that it was relevant that the appellant and the sponsor had managed to maintain a relationship in separate countries since the appellant's departure from the UK in 2015, and he submitted that they could continue to do so in the future. He submitted, in the alternative, that the sponsor could leave the United Kingdom and live with the appellant in her home country. Reliance was, one again, placed on the appellant's history in the UK in support of the submission that the decision to refuse the appellant leave to enter is proportionate.

23.          In reply, Mr Fripp observed that the hearing before the Upper Tribunal was the first occasion the ECO had sought to rely upon S-EC.1.5. of Appendix FM. There had been no reference in the decision letter to this provision nor any reference before the First-tier Tribunal. He submitted that the ECO had not sought to identify how this provision applied and maintained that, in any event, there was nothing in the facts of the case which could lead the Tribunal to conclude that the appellant falls foul of the requirements of this rule.

24.          As to paragraph 320(11), which is the rule the ECO relied upon in refusing entry clearance, Mr Fripp drew the Tribunal's attention to the reported decision in PS (Paragraph 320(11) Discretion: Care needed) India [2010] UKUT 440, submitting that a three stage test had to be applied; (i) there needed to be a trigger factor; (ii) there needed to be an aggravating circumstance or feature to the case; and, in any event, (iii) the application of the rule was a matter of discretion. The exercise of discretion is, he submitted, akin to a proportionality consideration under Article 8.

25.          Attention was further drawn to the comments in PS (India) regarding the public interest in encouraging those who are in the United Kingdom unlawfully to leave and regularise their stay. He reminded the Tribunal that that the appellant in the instant case had voluntarily left the UK and, he submitted, she should be given significant credit for this. Mr Fripp submitted that when carefully analysed the facts of the case are such that it could not be said to be proportionate to separate the appellant and Mr [Z].

26.          In looking at Article 8 Mr Fripp asserted that, in addition to those features which were said to further the ECO's position, the Tribunal should also take account of the fact that the appellant and the sponsor have now lived apart for a substantial period of time post-marriage and that they had paid the price in this respect for the appellant's previous misdeeds. Despite all this they had maintained their relationship. The sponsor is a British citizen and is entitled to remain here and it would not be proportionate to require him to leave the United Kingdom and live in Belarus in circumstances where he has his own business in the United Kingdom, and lives with one of his parents. Mr Fripp also submitted that substantial weight should be attached to the actions of the Entry Clearance Officer in refusing entry clearance in particular the errant reliance on a conviction in 2011, which does not exist. He reminded the Tribunal that there had not been any explanation or an apology for this.

Discussion

27.          The ECO does not conclude, nor does Mr Bramble assert, that the appellant fails to meet any of the Eligibility requirements for entry clearance as a partner under E-ECP. The issue under Appendix FM of the Rules, at least as now pursued by Mr Bramble on the ECO's behalf despite this not being how the case was put by the ECO in the refusal decision, is whether the appellant falls foul of the requirement set out in section S-EC.1.5. i.e. that: " The exclusion of the applicant from the UK is conducive to the public good because, for example, the applicant's conduct (including convictions which do not fall within paragraph S-EC.1.4.), character, associations, or other reasons, make it undesirable to grant them entry clearance..."

28.          It is, of course, for the Entry Clearance Officer to make out his case in this regard, to the balance of probabilities. As I have already identified on numerous occasions, the Entry Clearance Officer did not in fact identify which, if any, of the Suitability requirements were relied upon and in any event insofar as such requirements were relied upon the consideration thereof was flawed as a consequence of the ECO's incorrect reliance on the fact that the appellant had been convicted of theft in 2011 and that she had failed to disclose this fact in the application or entry clearance.

29.          I am entitled to consider for myself whether the exclusion of the appellant from the UK is conducive to the public good. In doing so I need to pay particular regard to the ECO's and Secretary of State's views on this issue. For this purpose, I am prepared to assume that the assertions made by Mr Bramble align with the ECO's and Secretary of State's views, although this was no explicitly stated to be the case by Mr Bramble.

30.          Moving on, consideration of the application of S-EC.1.5 involves an assessment of matters that goes beyond simply looking at the past and includes taking account of the appellant's circumstances as a whole. The fact of the 2006 conviction is not of itself, in my view, a sufficiently weighty factor so as to render exclusion of the appellant conducive to the public good. Other provisions of the immigration rules deal with the case where a person has been convicted of an offence (e.g. S-EC.1.4 (a)-(c)), and the appellant's circumstances do not fall within any of these provisions. That being said, the cumulative effect of the appellant's illegal entry into the UK in 2004 using false documentation, the fact and nature of the offence, the misleading information given to the police upon the arrest, the use of false identifies, the illegal working in the UK and the fact that the appellant remained unlawfully in the UK for 11 years, are features which when taken cumulatively bear significant weight in my consideration of whether exclusion of the appellant is conducive to the public good.

31.          There are however also other factors to be taken into account. The fact that the single offence for which the appellant has been convicted took place over 12 years ago, and that there have been no subsequent convictions or offences of a similar type, leads me to conclude that the risk of the appellant re-offending in a similar manner is negligible. Mr Bramble did not submit otherwise. Of course, the fact that the appellant remained illegally in the UK and worked illegally also both constitute criminal offences - albeit the appellant has not been duly convicted for this behaviour. However, viewing the appellant's circumstances as a whole I conclude that there is little if any prospect of this offending behaviour being repeated. Once again, Mr Bramble did not seek to submit otherwise. I also have no doubt that the appellant's relationship is genuine and that if she comes to the UK se would live with Mr [Z] in a marital relationship, and that they would have sufficient funds not to be a burden on the state (i.e. she meets the eligibility requirements of the Rules).

32.          Looking at the appellant's circumstances as a whole and having taken full account of all the matters identified above including the appellant's criminal behaviour when she was last in the UK, I conclude that it would not be conducive to the public good to exclude her from the UK. I find that her conduct (including the conviction which does not fall within S-EC.1.4.) character and associations do not make it undesirable to grant her entry clearance. I therefore conclude that the appellant's does not fall foul of the Suitability requirements of Appendix FM of the Immigration Rules, it not being asserted that she falls foul of any requirements set out in S-EC.1.1 to S-EC.3.2., save for S-EC.1.5, which I have rejected.

33.          Turning to a consideration of paragraph 320(11) of the Rules, a provision which was relied upon by the ECO in his decision letter, albeit once again on a flawed factual basis. It is beyond dispute that the appellant "previously contrived in a significant way to frustrate the intentions of the Rules". She was an illegal entrant in the United Kingdom and thus paragraph 320(11) is engaged (See paragraph 320(11)(iii)). The presence of "other aggravating circumstances" is also beyond dispute e.g. the fact that the appellant used multiple identities, including using a false identity upon her arrest on two occasions, as well as the significant length of her unlawful stay in the United Kingdom.

34.          This though does not complete a consideration of paragraph 320(11) because the application of this provision is a matter of discretion. The ECO did not consider the exercise of discretion and, if he did, then he did so not a flawed and unlawful basis for reasons which do not require repeating.

35.          For the reasons identified in the previous paragraph, it is likely that under the pre-2014 statutory appeal regime this is an appeal which would have been allowed on the basis that the ECO's decision was not in accordance with the law, which would have resulted in the ECO having to reconsider the appellant's application on the correct factual matrix. This, though, is no longer an avenue available to the Tribunal.

36.          In such circumstances, both parties were content for me to consider the exercise of discretion under paragraph 320(11) for myself. I heard no submissions on the legality of such an approach and make no findings in this regard. In all the circumstances I intend to proceed on the basis suggested by the parties, taking full account of Mr Brambles assertions as to the conclusions the ECO would have reached had he considered the exercise of discretion on the correct factual footing.

37.          Much of what I have said in relation to the suitability requirements of the Rules applies equally to the consideration of the exercise of discretion under paragraph 320(11), and I take account of my earlier finding that exclusion of the appellant from the UK is not conducive to the public good. I also take account of the fact, not mentioned previously, that there is public interest " in   encouraging those unlawfully in the United Kingdom to leave and seek to regularise their status by an application for entry clearance (see paragraph 14 of PS (paragraph 320(11) discretion: care needed) India [2010] UKUT 440 (IAC)). I do not accept Mr Bramble's submission that diminished weight should be attached to the appellant's actions in leaving the UK voluntarily because she did so having first taken legal advice. This is a matter which must be considered in the round with all other relevant circumstances. One such circumstance is the obvious strength of the appellant's marital relationship with Mr [Z] and the upheaval it would cause Mr [Z] if he were to move to Belarus to order to fully develop marital relations. I accept in this regard that he has close relations in the UK with his British citizen parents and in particular that he lives with his mother and that he pays for their accommodation. He also has a well-established business here with an employee, has never been to Belarus and does not speak the language of that country. Whilst I do not go as far as saying it would be 'unduly harsh' for Mr [Z] to move to Belarus, he is not required to establish that such is the case. The aforementioned factors are to be weigh in the round with all other relevant matters when consideration is being given to the exercise of discretion under paragraph 320(11).

38.          Having considered the circumstances of the case as have been put before me, taken full account of the public interest both in maintaining immigration control but also in encouraging those such as the appellant who are unlawfully in the UK to leave and regularise their status by making an entry clearance application, and also recognising the likely consequence of refusing entry clearance would be the inability of the appellant and Mr [Z] to live a full marital life - albeit this was something they must have thought would be a possibility as their relationship progressed - I conclude that this is not a case in which discretion should be exercised under paragraph 320(11) so as to prevent the appellant being granted leave to enter.

39.          Turning finally to Article 8. The appellant and Mr [Z] plainly share a family life together. They have a genuine and subsisting marriage, have previously lived together in the UK, are in contact daily and physically meet each other when the circumstances permit. The ECO's decision causes an interference with the appellant's family life and, in particular, the opportunity for her to undertake full marital relations with Mr [Z] . I find that such interference is of sufficient gravity to engage Article 8.

40.          The issue of substance in relation to the Article 8 ground, as is so often the case, is whether the decision to refuse entry clearance is proportionate. Whilst in undertaking my assessment of the issue of proportionality I have had full regard to the public interest considerations set out in section 117B of the Nationality, Immigration and Asylum Act 2002, and in particular that identified in section 117B(4), what I find to be of most significance is the Secretary of State's (and ECO's) general view that in any given case the public interest is identified through the Immigration Rules. In the instant case it is accepted that the appellant meets the eligibility requirements of the rules relating to entry clearance as a spouse, and I have found that she does no fall foul of either the Suitability requirements of those rules or the General Grounds of Refusal. In other words, the appellant, meets the requirements of the Immigration Rules.

41.          There is nothing in the facts of this case, over and above those matters which require consideration under the Rules, which leads to me to conclude that the public interest lies in refusing entry clearance - despite the requirements of the Rules having been fulfilled. For this reason, I conclude on the basis of the information and evidence I have been presented with, that the ECO's decision is not proportionate and that refusing entry clearance breaches Article 8 ECHR.

Decision

The decision of the First-tier Tribunal is set aside.

Upon remaking the decision, I allow the appellant's appeal on the basis that the ECO's decision breaches Article 8 ECHR.

 

 

Signed:

Upper Tribunal Judge O'Connor Date 17 January 2019