Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/18418/15
IA/18423/15, IA/18420/15
IA/18431/15, IA/18425/15

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 6th October 2016
On: 9th January 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

MOI
PUI
FAI
DOI
FOI
(anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: In person
For the Respondent: Mrs Aboni, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The Appellants are a family comprising father, mother, C1 born in 2008, C2 born in 2011 and C3 born in 2014. They are all nationals of Nigeria.

Anonymity
2. Three of the Appellants are minors. Two of them have significant health concerns. I do not regard it as in their best interests to have their identities revealed in the public domain, and for that reason have decided, having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders to make an order in respect of all five Appellants in the following terms:
"Unless and until a tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies to, amongst others, both the Appellants and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

The Appeal Before the First-tier Tribunal
3. This appeal is brought, with permission1, against a decision by First-tier Tribunal Judge Davies to dismiss the linked appeals of the five Appellants.
4. The case advanced before Judge Davies was that it would be a disproportionate breach of the family's Article 8 rights to remove them to Nigeria. The skeleton of that argument was as follows:
C2 and C3 are suffering from Homozygous Sickle Cell Disease (SCD). Medical evidence was produced, inter alia from Dr Andrew M Will, Consultant Paediatric Haematologist of Central Manchester University Hospitals, to the effect that both children are being kept well in the UK by regular medication and monitoring. The vast majority2 of children with this disease in sub-Saharan Africa die before they are five. That is because the disease destroys the ability of their spleen to function. The result is that if the child is bitten by a mosquito carrying falciparum malaria, he or she will usually die within a few hours. At the date of the appeal before Judge Davies C2 was four and C3 was 20 months' old
All the children were born in the UK and it would be in their best interests to remain here
At the date of the appeal C3 had lived in the UK for more than seven years
It would not be reasonable for C3 to leave the UK. She has grown up here and has her own established private life. If removed to Nigeria with her family the likely consequence would be that she would quickly experience the death of both of her younger siblings. In all of the circumstances that would not be reasonable.
The appeals of the adult Appellants should therefore be allowed with reference to s117B(6) of the Nationality Immigration and Asylum act 2002, the decision of the President McCloskey J in Treebhawon and Ors (section 117B(6)) [2015] UKUT 674 (IAC) and that of the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705 [at 14-20].
5. The First-tier Tribunal heard submissions and evidence from the first Appellant, who was representing himself, his wife and children. The Respondent was represented by Home Office Presenting Officer Mr Ogbewe, who submitted that treatment for sickle cell disease was available in Nigeria and that the disease is prevalent there. The Appellant accepted that both he and his wife would be able to find employment in Nigeria. He is a qualified lawyer, she an accountant. Having had regard to those factors the Tribunal found "I do not accept there is any evidence whatsoever to suggest that it would be unreasonable to expect [C1] to return to Nigeria with her parents". The reasoning underpinning that finding was that both parents could work.
6. In respect of C2 and C3 the Tribunal dealt very shortly with Article 3 ECHR, finding "no evidence" to establish that 'return' to Nigeria would result in inhuman and degrading treatment, nor their imminent death. The Tribunal did not think Article 8 engaged at all by the decision. If it was, the Tribunal made the following finding in the alternative:
"It is clear that treatment for sickle cell disease is available to persons in Nigeria where the disease is more prevalent than in the United Kingdom. I appreciate the risks identified in the medical evidence to the children [C2] and [C3] but I do not accept those risks are such to engage [C2] or [C3]'s Article 8 or Article 3 rights"
And further at 28:
"It is also clear from the principle Appellant's evidence that he will be well able to provide his children with both education and the healthcare that is available in Nigeria and as such can provide living conditions for the children [C2] and [C3] to enable them to continue to receive treatment for sickle cell disease and alleviate the risk to them that is identified in the medical evidence i.e. from the bite of a malarial fly".
7. The appeal was thereby dismissed.

The Appeal to the Upper Tribunal
8. The detailed grounds of appeal were drafted by the First Appellant. He submits that Judge Davies erred in his approach to the decision to the extent that the decision must be set aside. It is submitted that:
i) The Appellants did not have a fair hearing. It is alleged that Judge Davies declined to hear the second Appellant who had wished to give evidence, that he packed up his computer and files whilst the first Appellant was still talking, that he refused to listen to further submissions and that the entire hearing took no more than 30 minutes;
ii) There was a failure to adequately consider material evidence specifically relied upon by the Appellants, namely the extensive written material from Dr Will about the medical conditions of C2 and C3;
iii) The determination does not contain an assessment of the children's best interests in compliance with s55 of the Borders, Citizenship and Immigration Act 2009.

Error of Law
9. At a hearing on the 12th October 2016 I considered the grounds. The Appellants were represented by the First Appellant appearing in person, and the Secretary of State by Mr McVeety, Senior Presenting Officer. Having heard their submissions I found, for the reasons that follow, the decision of the First-tier Tribunal to contain errors of law such that it must be set aside.
10. I deal first with grounds (ii) and (iii) because I find them to be obviously made out. The determination of the First-tier Tribunal contains no 'best interests' assessment. The consideration of 'reasonableness' is confined to the observation that the parents are educated and could work. At paragraph 28 the Tribunal appears to find (although it is not clear) that the family could "alleviate" the risk of the children being bitten by a mosquito because they are middle class. The evidential foundation for that finding is not explained in the determination. Whilst the point may be a good one (I do not know), the Tribunal nowhere considers the risk that there may be to a child whose parents are professionals. I find it hard to imagine that mosquitos differentiate on that basis. Nor does Judge Davies recognise the evidence from the First Appellant that at least one child in his own family - a niece - had quickly succumbed to malaria as a result of his underlying sickle cell disease, having only shortly returned to Nigeria from the USA.
11. The real difficulty with the scant reasoning at paragraphs 27 and 28 (cited above) is that it fails to grapple with the detailed evidence provided by Dr Will. Dr Will explains that falciparum malaria is considered endemic in 97% of Nigeria and epidemic in 3% of the country. A child with the form of sickle cell that C2 and C3 have will be "very likely to die within a few hours of the bite". That is the cause of death for the "vast majority" of the 75%-95% children with this underlying condition who die before they reach their fifth birthday. Dr Will does set out the measures that can be taken to avoid the onset of the disease, such as taking an anti-malarial prophylaxis, but he writes that it is not possible to take these drugs for more than a short time. None of the available anti-malarial drugs are licensed for long-term use. They are generally used for 4 weeks or less. Longer term use (more than a few months) is associated with increased risk of side effects, some of which are life-threatening. It was his measured assessment that return of these children would "put them at grave risk of death from falciparum malaria".
12. Before me Mr McVeety conceded that the determination is flawed for a failure to properly consider the evidence of Dr Will. Although it is touched upon at paragraph 27 ("I appreciate the risks identified in the medical evidence to the children") there is no analysis of it, no recognition of Dr Will's opinion that these children would be at "grave risk" if returned to Nigeria and no explanation at all for the conclusion that those risks do not engage Article 8 or Article 3.
13. The determination is set aside for those errors alone. I would further note however that the assessment of C1's best interests, and whether it is 'reasonable' that this qualifying child leave the United Kingdom is entirely absent. The fact that her parents could get jobs was one relevant consideration. The starting point however was the Respondent's own guidance about the significance of a period of seven years' residence for a child. It has long been recognised (at least since 1995) that after such a period a child will have put down roots in this country and established a private life distinct from his or her parents: see MA (Pakistan) [2016] EWCA Civ 705 and PD and Others (Article 8 - conjoined family claims) [2016] UKUT 108. The effect of this guidance is that 'strong reasons' will be required before a child can be expected to leave. None of that figures in the very limited analysis in this determination.
14. It follows that I need not deal with the allegations about the conduct of the Judge at the hearing. Whilst the first Appellant has provided a detailed statement of his perception about what happened, I have no information from Mr Ogbewe and Judge Davies has not to date provided any comment. In the circumstances I do not consider it appropriate to make any findings on this ground.

The Re-Made Decision
15. The hearing resumed on the 6th December 2016. Very helpful submissions were made by both the First Appellant and Mrs Aboni. The First Appellant gave brief oral evidence. At the close of submissions I indicated that the appeals would be allowed. I set out below the legal framework that I have applied, and my reasons for allowing the linked appeals of this family.
Legal Framework
16. The rule relating to applications for leave to remain on grounds of established private life in the United Kingdom is 276ADE:
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK.
17. It is accepted that neither of the adults in this family have lived in the country long enough to satisfy the requirements as to age or length of residence in sub-paragraphs (iii) and (v). The only potential avenue open to them would be to rely on sub-paragraph (vi). In Bossade (s117B A-D - interrelationship with Rules) [2015] UKUT 415 (IAC) the Upper Tribunal considered the test of "very significant obstacles to integration" (in the context of the rules relating to deportation). The Tribunal did not elucidate on what factors might establish such obstacles, but found the test to be a "stringent" and demanding standard. This would accord with the established European jurisprudence on 'foreign' private life cases. As the Secretary of State puts it in her guidance:
"A very significant obstacle to integration means something which would prevent or seriously inhibit the applicant from integrating into the country of return. The decision maker is looking for more than obstacles. They are looking to see whether there are "very significant" obstacles, which is a high threshold. Very significant obstacles will exist where the applicant demonstrates that they would be unable to establish a private life in the country of return, or where establishing a private life in the country of return would entail very serious hardship for the applicant3.
18. C1 was born in the United Kingdom in November 2008 and so as of November 2015 she became a 'qualifying child', that is to say one who had lived in the United Kingdom for a continuous period of seven years or more4. These applications were made in August 2014 and so it is accepted that at the date of application C1 could not hope to qualify for leave to remain with reference to sub-paragraph (iv). It is however accepted by Mrs Aboni that in the context of a human rights appeal, the question of whether she qualifies for leave under the rule today is relevant. The parties were in agreement that the matter of whether it is 'reasonable' for C1 to leave the United Kingdom under 276ADE(1)(iv) is the same question to be asked when considering the position of her parents under s117B(6) of the Nationality, Immigration and Asylum Act 2002:
117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
19. It is, for the moment at least, the position that this section is to be interpreted as follows. Decision-makers must have regard to all of the factors listed at (1)-(5) when assessing Article 8 claims, but in cases where the applicant can show both limbs of sub-section (6) to be satisfied, an appeal must succeed on Article 8 grounds: Treebhawon and Ors (section 117B(6)) [2015] UKUT 674 (IAC), MA (Pakistan) [at 14-20]. There being no dispute that the adult appellants in this case have a genuine and parental relationship with a qualifying child, the question is whether it would be 'reasonable' to expect that child to leave the United Kingdom. How is that question to be addressed?
20. The genesis of the 'seven year' provision was the concession known as DP5/96. That policy, and those which followed, created a general, but rebuttable, presumption that enforcement action would "not normally" proceed in cases where a child was born here and had lived continuously to the age of 7 or over, or where, having come to the United Kingdom at an early age, 7 years or more of continuous residence had been accumulated5. Although there have been shifts and amendments to this policy over the years, the government has consistently maintained that a residence of at least 7 years' duration is a significant benchmark. As the policy statement6 which accompanied the introduction of paragraph 276ADE (1)(iv) puts it: "a period of 7 continuous years spent in the UK as a child will generally establish a sufficient level of integration for family and private life to exist such that removal would normally not be in the best interests of the child" [my emphasis]. The Hansard record of the debate in the House of Lords on the introduction of section 117B(6) (in the Immigration Act 2014) sets out the government's position on the significance of the seven year mark, as explained by then Home Office Minister Lord Wallace of Tankerness:
"we have acknowledged that if a child has reached the age of seven, he or she will have moved beyond simply having his or her needs met by the parents. The child will be part of the education system and may be developing social networks and connections beyond the parents and home. However, a child who has not spent seven years in the United Kingdom either will be relatively young and able to adapt, or if they are older, will be likely to have spent their earlier years in their country of origin or another country. When considering the best interests of the child, the fact of citizenship is important but so is the fact that the child has spent a large part of his or her childhood in the United Kingdom"7.
21. The current policy statement reaffirms that this is the starting point for consideration of the rule. The Immigration Directorate Instruction 'Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes' ("the IDI") states:
11.2.4. Would it be unreasonable to expect a non-British Citizen child to leave the UK?
The requirement that a non-British Citizen child has lived in the UK for a continuous period of at least the 7 years immediately preceding the date of application, recognises that over time children start to put down roots and integrate into life in the UK, to the extent that being required to leave the UK may be unreasonable. The longer the child has resided in the UK, the more the balance will begin to swing in terms of it being unreasonable to expect the child to leave the UK, and strong reasons will be required in order to refuse a case with continuous UK residence of more than 7 years.
The decision maker must consider whether, in the specific circumstances of the case, it would be reasonable to expect the child to live in another country.
The decision maker must consider the facts relating to each child in the UK in the family individually, and also consider all the facts relating to the family as a whole. The decision maker should also engage with any specific issues explicitly raised by the family, by each child or on behalf of each child.
(emphasis added)
22. All of this guidance recognises that after a period of seven years' residence a child will have forged strong links with the UK to the extent that he or she will have an established private life outside of the immediate embrace of his parents and siblings. It is that private life which is the starting point of consideration under this Rule. The relationships and understanding of life that a child develops as he grows older are matters which in themselves attract weight. The fact that the child might be able to adapt to life elsewhere is a relevant factor but it cannot be determinative, since exclusive focus on that question would obscure the fact that for such a child, his "private life" in the UK is everything he knows. That is the starting point, and the task of the Tribunal is to then look to other factors to decide whether, on the particular facts of this case, these displace or outweigh the presumption that interference with that private life will normally be contrary to the child's best interests. Those factors are wide-ranging and varied. The IDI gives several examples including, for instance, the child's health, whether his parents have leave, the extent of family connections to the country of proposed return. In MA (Pakistan) Elias LJ (albeit reluctantly) accepted that it must also encompass matter pertaining to the family as a whole, including the factors at s117B(1)-(5) as they relate to the parents. The assessment of what is "reasonable" will call for the Tribunal to weigh all of these matters into the balance and to see whether they constitute "strong reasons" - the language of the current IDI - to proceed with removal notwithstanding the established Article 8 rights of the child in the UK.
My Findings
23. I first consider whether the adults in this family could succeed under sub-paragraph (vi) of 276ADE(1). They are both Nigerian, and are well equipped to embrace life in that country, having grown up and been educated there. They are both highly qualified and there can be no criticism of Judge Davies' finding that they would be able to make a living should they return home. The only "obstacle" that they face is the health of their youngest children. That is certainly a serious problem for them. I had an opportunity to hear directly from the First Appellant about his concerns for their welfare. He became visibly emotional when he spoke of the death of his niece. She had been born and grown up in the United States and had travelled to Nigeria when she was six years old. She lived with her parents in Benin City. Her mother was a caterer, her father a criminologist who was teaching at the time. They had enjoyed a good standard of living, but their daughter was dead within a year. The family have now returned to America and are living in New York. Having heard that evidence I have no doubt that both the First Appellant and his wife are terrified of the prospect of having to live with the day to day fear of a single insect bite causing fatal injury to one of their children. It is however the fear that many thousands of Nigerian parents live with, and although there can be no doubt that it is a heavy burden indeed, it is not a matter that constitutes an obstacle to integration. As the Respondent's guidance suggests, this is a rule framed to reflect the jurisprudence on the protection of private life in 'foreign' cases. There does not need to be a complete nullification of private life, but it must be a flagrant and substantial interference for the article to be engaged in these circumstances. Whilst I know that the prospect of return to Nigeria fills the adult appellants with dread, the reality is that they would be able to find a home, make friends, get jobs and re-establish relationships with other family members. The Nigerians who live with sickle cell have private lives. The disease itself does not prevent them enjoying that right.
24. There is no rule which could conceivably apply to C2 and C3. The integrity of the family as a whole is of paramount importance when considering their position and this in itself is sufficient justification to consider Article 8 'outside of the rules' in respect of the whole family. As I note above C1 could not have met the requirements of 276ADE(1)(iv) at the date of her application since she had not at that point reached the 'seven-year mark'. Whether she meets it today is the same question to be considered when assessing the position of her parents under s117B(6). I therefore proceed directly to considering the Article 8 rights of the adult appellants.
25. I am satisfied that Article 8 is engaged by the decision to remove this family. The adults and C1 certainly have an established private life in the United Kingdom; at their young age C2 and C3 arguably less so. Each member of the family shares a family life with each other. The removal of all of them would interfere with the private lives of the older Appellants.
26. I find that the Secretary of State has the power in law to make removal decisions in respect of persons who do not have any leave to remain under the Rules and that such decisions are rationally connected with the legitimate Article 8(2) aim of protection of the economy.
27. In considering whether the decision to remove the Appellants is necessary in a democratic society (in pursuit of the aim mentioned above) and proportionate, I must have regard to all relevant factors including the matters listed at s117B(1)-(6) NIAA 2002 rehearsed above. I begin with sub-section (6), following the suggested structure in MA (Pakistan).
28. It is not in dispute that the adult Appellants have a genuine and subsisting parental relationship with their daughter C1, who was born and brought up in the United Kingdom and is now 8 years old. Like other 8 year olds she attends school, has developed interests, made friends and has established good relationships with her teachers. She has, to use the language of the IDI, "put down roots". Having regard to the various policies and ministerial statements set out above, I consider that this is a private life that attracts substantial weight. Whereas an adult could reasonably be expected to replicate that private life in Nigeria, different considerations arise in the case of a child, particularly one who has known no other life. Change is generally disruptive for children but in the case of C1 there is an additional element which would mean relocating to Nigeria would be more difficult than usual. If the family were to move to this malarial zone, I find it to be very likely that this would be hugely stressful for the parents. The First Appellant and his wife are very likely to become wholly preoccupied with the constant pressure of ensuring that C2 and C3 are wearing repellent, taking medication, seeing doctors, and under netting. Their lives would be far from normal. It is difficult to see how C1 would be able to simply take up from where she left off in Manchester. Her life in Nigeria would be constantly overshadowed by the prospect of her siblings falling ill. There is of course the very real possibility that one or both of them would become ill, and on the evidence of Dr Will, such illness would very likely be fatal. All of this would have a very substantial negative impact on C1. Taking all of those matters particular to the child into account, I find that it would be contrary to C1's best interests to interfere with the private life that she has developed in this country.
29. Against those matters I must weigh the countervailing factors identified by Mrs Aboni. In accordance with MA (Pakistan) these submissions reflected the public interest as it is identified in ss 117B (1)-(5) of the 2002 Act.
30. I find that the maintenance of effective immigration controls is in the public interest. Neither adult appellant currently qualifies for further leave to remain under the Immigration Rules. I do note however that they have both had valid leave at all times since they entered the United Kingdom. The First Appellant and his wife entered the UK in September 2007 with leave to enter as Tier 4 (General) Student Migrants. This was subsequently varied to Tier 1 (Post-Study Work). In 2011 the Third Appellant returned to study and so reverted to Tier 4; the First Appellant became her dependent. That leave still subsisted when these human rights applications were made and before me Mrs Aboni accepted that in accordance with section 3C of the Immigration act 1971 they still have leave today. There have been no breaches of immigration control that weigh against the family.
31. It is in the public interests that persons who seek to remain in the United Kingdom are financially independent. It is accepted that C2 and C3 have had extensive recourse to the services of the NHS. This is a matter I must have regard to. This aside, the Appellants have, since their arrival in the United Kingdom been financially independent. I am satisfied that they would continue to be so. The First Appellant is a lawyer, his wife a qualified accountant.
32. It is in the public interest that persons who seek leave to remain in the United Kingdom are able to speak English. All of the Appellants who are old enough to talk do so in fluent English. This is not therefore a matter that weighs against them.
33. I attach little weight to the private life of the adults, since it has been established at a time when they have known their status in the United Kingdom to be 'precarious'. That must also be the position in respect of the children, although I must also take into account the fact that C1, C2 and C3 had no say in, and no understanding of, the legal or moral choices made by their parents.
34. I have weighed all of those matters in the round. Having done so, and having reminded myself of the language used in the Respondent's own guidance, I am not satisfied that it would be 'reasonable' to expect C1 to leave the United Kingdom. Unlike the child in EV (Philippines) [2014] EWCA Civ 874 she is a qualifying child who prima facie has a claim under the Rules. The assessment of 'reasonableness' is not akin to a proportionality balancing exercise where no such claim arises. The guidance states that there must be 'strong reasons' to require her to leave the United Kingdom today. The only matters that weigh against her are arguably the recourse that her younger siblings have had to the NHS, and the fact that no other member of her family currently qualifies for further leave to remain. I am not satisfied that these are sufficient reason to interfere with her private life in the United Kingdom, particularly in light of the significant difficulties that C2 and C3, and consequently the whole family, would face in trying to relocate to Nigeria. In the final analysis the Secretary of State' submissions came down to this: it must be reasonable for her to leave, because her parents have no right to remain and would be going with her. Even absent the terms of the Respondent's own guidance, the fallacy in that argument is exposed by the language of the rules and statute themselves. Paragraph 276ADE(1)(iv), EX.1 and section 117B(6) must be assumed to all mean the same thing when they ask whether it is reasonable that a child leave. They all provide for persons who currently have no leave to be able to regularise their position. It would make no sense if such applications could be defeated simply by pointing to the fact that the applicant, or her parent, is without leave, or not entitled to any more, at the date that the application is considered.
35. I am not satisfied, having regard to all of these matters, that the countervailing factors are such that there are in this case 'strong reasons' that would make it reasonable to disrupt the only life that C1 knows.
36. It follows that the appeals of the adult appellants must be allowed, since it is not in the public interest to remove them. The appeal of C1 would fall to be allowed because she qualifies for leave to remain under paragraph 276ADE(1)(iv) and there would therefore be no public interest in removing her today. Mrs Aboni realistically conceded that in these circumstances the appeals of C2 and C3 should also be allowed with reference to Article 8 outside of the rules.
Decisions and Directions
37. The determination of the First-tier Tribunal contains an error of law and it is set aside.
38. The decision in the appeals is remade as follows:
'The appeals are allowed on human rights grounds".
39. There is an order for anonymity.

Upper Tribunal Judge Bruce
5th January 2017