Upper Tier Tribunal Appeal Hearing

[L2017*]

Hello All,
So just to provide a quick snapshot; I am a Foreign national with a British husband. My partner and I applied for our FLR(M), were denied and thus appealed it on the basis of Human Rights. We ended up winning in the First Tier Tribunal however then the HO swooped in and notified us they were trying to appeal our win. We just heard last week that they've been successful and we've already been given an appeal hearing this month. So several questions; how easy is this to win? Would the HO be able to challenge us again, even if we do win? And lastly if I had worked a month or so part time by mistake as a self employed individual recently, will I be penalized and if so how? Am I in breach? I wasn't aware that part time meant also self employed....thanks in advance.

[Obie]

It will be good to know on which basis the Home office was given permission.

Furthermore you or your representative need to have filed a rule 24 notice to the tribunal informing them if your wish to oppose the appeal. Wondered if this was done?

[L2017*]

It will be good to know on which basis the Home office was given permission.
[
***Thanks for your reply. Due to an error of law. they came up with this: but DONT even mention EX2 which is how we won...[/b]
They wrote this:

The judge of the First-Tier Tribunal has made material errors of law in the Determination through a misdirection as to the law, and through giving inadequate and/or contradictory reasons for the conclusions he reached.

The appeal has been allowed under the immigration rules with reference to EX1 and the 'insurmountable obstacles' test. It is contended that the Judge has failed to recognise the high hurdle this test imposes. In Agyarko & Ors v Secretary of State for the Home Department 2015 EWCA Civ 440 the Court of Appeal stated:

'21 The phrase 'insurmountable obstacles' as used in this paragraph of the Rules clearly imposes a high hurdle to be overcome by an applicant for leave to remain under the Rules. The test is significantly more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the UK.'

22. The phrase as used in the Rules is intended to have the same meaning as in the Strausbourg jurisprudence. it is clear that the ECThr regards it as a formulation imposing a stringent test.'

Having failing to correctly direct himself as to the test to be applied, the Judge goes on to find it is met. This conclusion appears to be contradictory to the reasoning in paragraphs 12 and 13 of the determination, where the Judge had rejected virtually all of the arguments put forward by the appellant and her husband as to why they would be unable to reside together in the USA,

The only positive reasons given for the conclusion that EX.1 is met are that the sponsor is British born and has never lived anywhere else. In Agyarko & Ors v Secretary of State for the Home Dept 2015 EWCA Civ 440 the Court of Appeal stated:

25. The mere facts that the sponsor is a British citizen, has lived all his life in the UK and has a job here - and hence might find it difficult and might be reluctant to relocate to Ghana could not constitute insurmountable obstacles to his doing so.

Other reasons given in paragraph 13 clearly go to the question of the proportionality of splitting the couple rather than the EX.1 test under which the appeal has actually been allowed which relates solely to the question of them living together in another country.

*****



Furthermore you or your representative need to have filed a rule 24 notice to the tribunal informing them if your wish to oppose the appeal. Wondered if this was done?

***Yes this has been done. Im worried about the self employed bit if we have to do another application but perhaps Im jumping ahead? Also do I have to have an entire new bundle? As there's no evidence? I dont see why and the solicitor wants to charge more than we can afford so we are just going with a barrister....