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Presidential guidance on errors of law and proportionality

Presidential guidance on errors of law and proportionality

This is an interesting case in which an entry clearance application by an elderly relative was refused by the ECO but the appeal allowed on human rights grounds by a First-tier Tribunal judge, whose decision is here upheld by President McCloskey. It is also interesting because it sounds like an appeal under the Adult Dependent Relative rules may finally have reached the Upper Tribunal for reporting: the appeal was allowed on human rights grounds but dismissed under the Immigration Rules, but paragraph 27 seems to suggest that the latter decision still seems to be the subject of a live appeal.

The official headnote

(i)             A tribunal’s failure to make clear findings about family life is not per se erroneous in law where its existence has not been contested in the Secretary of State’s decision and has not been challenged at the appeal hearing and the tribunal’s decision is not otherwise unsustainable in law.

(ii)           The question of whether there is family life in a child/grandchild context requires a finding of something over and above normal emotional ties and will invariably be intensely fact sensitive.

(iii)         In error of law appeals, the Upper Tribunal should apply the principles in Edwards v Bairstow [1956] AC 14 .

(iv)         In appeals involving the proportionality of an interference with a Convention right, the ultimate question for the Upper Tribunal is whether the interference is proportionate, per Huang v Secretary of State for the Home Department [2007] 2 AC 167.

As a reminder, Edwards v Bairstow is authority for it being very rare for factual findings to challengable on appeal.

Source: Dasgupta (error of law – proportionality – correct approach) [2016] UKUT 28 (IAC) (11 December 2015)

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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