IA/01059/2016

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The decision


IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01059/2016


THE IMMIGRATION ACTS


Heard at Newport
Decision & Reasons Promulgated
On 7 February 2017
On 31 March 2017



Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE GRUBB


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mrs Matseliso Ncube-Calvert
(ANONYMITY DIRECTION NOT MADE)
Respondent


Representation:
For the Appellant: Mr P Duffy, Home Office Presenting Officer
For the Respondent: In person


DECISION AND REASONS

1. The appellant (hereafter the Secretary of State or SSHD) has permission to appeal against the decision of First-tier Tribunal Judge Sangha sent on 23 May 2016 allowing her appeal under the Immigration Rules and also Article 8. The Judge noted that the application of the respondent (hereafter the claimant) for leave to remain as the spouse of her partner, Mr R Calvert, a British citizen, was refused under the five year partner route on the basis that although she met the suitability requirements she failed under the eligibility requirements because she was in breach of the immigration laws. This was because the claimant did not have valid leave to remain in the UK as it had expired on 5 August 2006. The judge allowed the appeal under the Rules, nevertheless, because he considered the claimant had a separate route of entitlement under paragraph EX.1(a) of Appendix FM. The judge found that there would be insurmountable obstacles preventing her and her British partner from continuing their relationship in Zimbabwe.

2. The grounds of appeal contended that the FtT judge had failed to consider the possibility of the claimant making an entry clearance application as a spouse.

3. The claimant was not represented but appeared in person with her husband.

4. We can be very brief in disposing of this appeal because Mr Duffy conceded at the outset that the SSHD’s grounds of appeal were misconceived. We entirely agree with him. Paragraph EX.1(b) of the Rules provide a route for settlement as a spouse if it is shown that there would be insurmountable obstacles to the claimant’s spouse accompanying her to Zimbabwe to resume their family life there. The existence or otherwise of the possibility of applying from Zimbabwe for entry clearance is irrelevant to that.

5. As Mr Duffy also conceded, correctly, paragraph EX.1. provides for a route to settlement even when eligibility requirements are not met.

6. Accordingly, as Mr Duffy conceded, the SSHD’s grounds are misconceived. They wholly fail to identify any error of law on the part of the FtT judge.

7. For the above reasons we dismiss the appeal of the SSHD.

8. The decision of the FtT to allow the claimant’s appeal must stand.

No anonymity direction is made.


Signed Date: 31 March 2017

Dr H H Storey
Judge of the Upper Tribunal