(Immigration and Asylum Chamber) Appeal Number: OA/10547/2012
THE IMMIGRATION ACTS
Heard at Field House
On 12 November 2013
On 29 November 2013
UPPER TRIBUNAL JUDGE MOULDEN
ENTRY CLEARANCE OFFICER - ISLAMABAD
MRS SAMIA OSAMANKHIL
(Anonymity Direction Not Made)
For the Appellant: Mr P Nath a Senior Home Office Presenting Officer
For the Respondent: Mr Z Malik of counsel instructed by Malik Law Chambers
DETERMINATION AND REASONS
6. I suggested to Mr Nath that in more than one respect the grounds were misconceived. The grounds submit that the FTTJ erred in law by failing to apply the Immigration Rules relating to Article 8 grounds. It is clear that this is a reference to the Immigration Rules which came into force in July 2012. The decision in this case was made on 16 April 2012 and as a result the Article 8 grounds had to be assessed in the light of the jurisprudence before the new Rules came into force. Mr Nath accepted that this was correct. Secondly, the grounds submit that the FTTJ failed to consider the income threshold requirements under the Immigration Rules. This is a reference to the income threshold requirements under the new Immigration Rules which were not in force at the date of the decision and do not apply in this case. Mr Nath accepted that this was correct. In the circumstances he said that he relied on what was left of the grounds of appeal and did not wish to make any further submissions. I heard brief submissions from Mr Malik.
7. I find that the first ground of appeal is misconceived. The ground submits that the FTTJ erred in law by failing to apply the Immigration Rules relating to Article 8 grounds. It is clear that this is a reference to the Immigration Rules which came into force in July 2012. The decision in this case was made on 16 April 2012 and as a result the Article 8 grounds had to be assessed in the light of the jurisprudence which applied before the new Rules came into force. There was no income threshold requirement in the previous Article 8 jurisprudence. Furthermore, in relation to the submission that those who choose to establish a family life in the UK should have the required financial ability to support themselves it is relevant that the FTTJ found that the claimant met the maintenance requirements of paragraph 281 of the Immigration Rules. The whole of the first ground of appeal is flawed by inappropriate reliance on Immigration Rules which were not in force.
8. As to the second ground of appeal this is substantially if not entirely flawed by the same reliance on Immigration Rules which were not in force. Insofar as it is alleged that the FTTJ erred in law by relying on a finding that the claimant's case was "exceptional" I can find no reference in the determination to "exceptional", "exceptionality" or anything to indicate that the FTTJ applied such a test. This part of the ground of appeal is based on a false premise. I cannot see that any further explanation is required for the conclusion that it would be in the children's best interests to live with their father and mother. The ground is also flawed by continued reliance on the incorrect statement that the claimant failed to meet the maintenance requirements of the new Immigration Rules. The FTTJ set out the appropriate jurisprudence and reached conclusions open to him on all the evidence.
9. There is no error of law and I uphold the FTTJ's determination.
Signed Date 13 November 2013
Upper Tribunal Judge Moulden