Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10376/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 December 2016
On 16 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

daniel ryan vihm
(ANONYMITY DIRECTION not made)
Appellant
and

ENTRY CLEARANCE OFFICER - MANILA
Respondent

Representation:
For the Appellant: No appearance or representation
For the Respondent: Ms Z Ahmad, Senior Presenting Officer

DECISION AND REASONS

1. The Appellant, a national of Australia, date of birth 10 March 1982 appeals against the Respondent's decision, dated 16 October 2015, to refuse entry clearance as a partner under Appendix FM of the Rules. The appeal against that decision came before First-tier Tribunal Judge Chamberlain (the Judge) who, on 6 May 2016 dismissed the appeal on human rights grounds bearing in mind the original decision of the Entry Clearance Officer.

2. The judge dismissed the appeal, it being accepted that the Appellant had not at the relevant time met the requirements of the Immigration Rules albeit that he might now at a later date be able to do so. It followed that any appeal under the Immigration Rules must fail but the outcome was potentially germane to the consideration of Article 8 ECHR outside of the Rules. The Appellant did not appear. Notice of Hearing was given on 5 December 2016 to the Appellant's last notified address. No request was made for an adjournment. I decide to proceed in the absence of the Appellant; there being no unfairness or injustice in doing so. There were no representatives on the Tribunal records.

3. The Judge's decision is not wholly structured but it is clear that the Judge did assess the Article 8 claim and did consider what evidence had actually been advanced in support of the family life and private life issues that might be raised. The particular position was that there was an absence of meaningful evidence on those issues put before the Judge. It is therefore perfectly sustainable for the Judge to have taken the view that the evidence was not sufficient to show that the Respondent's decision was disproportionate. The position is that the Appellant had not submitted grounds of appeal addressing Article 8 at all nor was it apparently argued at the hearing before the Judge, in writing at least; because neither party was represented. Nevertheless, where there is an appeal against an immigration decision the position is that the appeal is against the whole decision and arguably the basis on which permission to appeal was given is mistaken in the sense that the Judge did actually address Article 8 reasons and concluded that Article 8(1) was not engaged because of an absence of evidence. Therefore, even if it is thought to be a cursory consideration of it, the fact is that the Appellant had not done what was necessary or established those rights were engaged or that the impact of the decision would be material or significant to the extent that established Article 8(1) was engaged.

4. In the circumstances the Judge went on to consider Section 117B of the Nationality, Immigration and Asylum Act 2002 (as amended) and could only have done so if he had been considering family life/private life rights. In the circumstances therefore I conclude that there was in paragraphs 16 to 19 of the decision sufficient to show that the Judge had considered the matter as he needed to do.

5. Ms Ahmed relies upon the decision of the Court of Appeal in SS (Congo) [2015] EWCA Civ 387 , in particular paragraphs 31 to 33, which helpfully recite the legal context in consideration of the Immigration Rules and the issue of whether there were compelling reasons to consider the matter outside of the Rules. The position was that the Appellant says that he now meets the requirements of the Rules and, if he does so, his remedy is to make a fresh application on that basis. I do not find when it is such a provision as the financial requirements there is any reason demonstrated why Article 8 should be considered outside of the Rules other than the legal requirement to do so if the criteria for doing so are met. In the circumstances there is no substance in the challenge to the First-tier Tribunal Judge's decision.

NOTICE OF DECISION

The Original Tribunal Decision stands. The appeal is dismissed.

No anonymity order was made and none is demonstrably necessary or appropriate.

The appeal has been dismissed and therefore no fee award is to be made.

Signed Date 14 January 2017

Deputy Upper Tribunal Judge Davey