IA/22068/2015

• Status of case: Unreported
• Hearing date: 1 Mar 2017
• Promulgation date: 2 Mar 2017
• Publication date: 13 Jan 2022
• Last updated on: 13 Jan 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22068/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 1 March 2017
on 2 March 2017


Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

MUNEER AHMED
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT


Respondent

For the Appellant: Mrs S Kieran, of Gray & Co, Solicitors
For the Respondent: Mrs M O’Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of Pakistan, born 25 July 1988. He had leave to remain as the spouse of a UK citizen until 7 May 2014. On 4 November 2014 he sought indefinite leave to remain in the same capacity.
2. In the covering letter from his solicitors with the application, the appellant said that his case fell to be dealt with under the rules in place in June 2012 (i.e., prior to the major amendment which took place with the introduction of appendix FM; although in a covering note he advanced his case on the basis of article 8 of the ECHR and the SSHD’s discretion outside the rules).
3. The SSHD in a letter dated 20 May 2015 considered the application under the “old rules”, and refused it on the view that the marriage was not genuine.
4. The appellant appealed to the FtT, stating in his grounds that he met “the requirements of paragraph 277C and appendix FM of the rules” and founding on article 8 outside the rules.
5. FtT Judge Clough dismissed the appeal by decision promulgated on 6 July 2016. She found that the marriage was genuine, but rejected the submission that the requirements of appendix FM were met, and found no reason to consider the case outside the rules.
6. The appellant sought permission to appeal from the FtT, maintaining (accurately, although rather inconsistently with the case put to the judge) that the old rules applied, and the case should have succeeded within those terms.
7. On 18 October 2016 a judge of the FtT refused permission to appeal, on the view that the window for transitional applications between the old and new rules had “long since closed”.
8. The appellant renewed his application to the UT, on the grounds that the judge went wrong on “insurmountable obstacles” in terms of the rules, or article 8 outside the rules.
9. A judge of the UT granted permission, saying that there was arguable error in the article 8 assessment.
10. Mrs O’Brien cut through the foregoing confusion with commendable accuracy and clarity. The original application was correctly considered by the respondent under the old rules. The judge found there to be a genuine marriage, and on that unimpeached factual finding the case ought to have been allowed under the correctly applicable rules.
11. The decision of the FtT is set aside. The following decision is substituted: the appeal, as originally brought to the FtT, is allowed under the immigration rules.
12. No anonymity direction has been requested or made.




1 March 2017
Upper Tribunal Judge Macleman