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Discretionary Leave and Family Members

The Sponsor had been granted discretionary leave to remain in April 2012 as part of the "Legacy" program. Under the transitional arrangements brought in on 9th July 2012 he could expect to be granted indefinite leave after 6 years unless there was a change of circumstances. However the Sponsor wished to be joined by his wife in this country, but because he had no settled status Appendix FM did not apply to him and there was no other provision in the Rules.

Argument was put forward that the positive duties of the SSHD in relation to Article 8 ECHR required the admittance of the Appellant to join her husband (there was no other challenge in relation to Appendix FM save the fact of the husband's status).

After success before the FTT the SSHD appealed and the decision was overturned by the UT.

The interesting point was that the SPO, Mr Mills submitted before Upper Tribunal Kopieczek that those with more precarious status than the Sponsor, such as students--Tier 4 and Tier 2 workers were allowed under the Rules to bring their spouses into the country for economic reasons because otherwise they would not come to the UK; the distinction made was for public policy purposes, barring compassionate circumstances the same did not apply to the Sponsor. He was merely a failed asylum seeker, and if he wanted to be with his wife, then he could return to his home country and enjoy family life there.

The UT agreed with Mr Mills. So the Sponsor will have to wait until 2018 before his wife can make an entry clearance application.

Stephen Vokes