Tribunal decisions

The decision

IAC-fH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/49226/2014
IA/49235/2014
IA/49234/2014
IA/49236/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 August 2016
On 1 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

Sumsuz [z] (FIRST Appellant)
DIL [U] (SECOND Appellant)
[M B Z] (THIRD Appellant)
[M M Z] (FOURTH Appellant)
(ANONYMITY DIRECTION not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr R Khosla, instructed by D J Webb & Co Solicitors
For the Respondent: Mr S Whitwell, Home Office Presenting Officer

DECISION AND REASONS
1. This is my decision on the re-making of these linked appeals.
2. By a decision promulgated on 23 June 2016 following a hearing on 6 June, I concluded that the First-tier Tribunal had materially erred in law and I set aside its decision (see Annex 1).
3. In essence I found that the First-tier Tribunal should have at least considered the first Appellant's claim that despite failing to satisfy paragraph 245FD of the Immigration Rules (the Rules) he nonetheless satisfied paragraph 245ED. In addition, I found that the judge erred in his assessment of Article 8. Following the error of law hearing I issued directions to the parties. The Appellants were to file any further evidence relied upon and the Respondent was to provide a written position statement setting out her assessment of the evidence submitted by the first Appellant with his application of 27 June 2014 in the context of paragraph 245ED of the Rules and her consideration of Article 8 in respect of all of the Appellants, with particular regard to the best interests and wellbeing of the third and fourth Appellants.
4. Under a covering letter dated 6 July 2016 a supplementary bundle of evidence was provided by the Appellants. That is now on file. In respect of the Respondent's written position statement, one was as far as I can tell served on the Appellants and filed with the Upper Tribunal on 19 August 2016. The statement is of that same date.
The hearing before me
5. At the outset of the hearing I confirmed that both representatives were in possession of all the relevant evidence. Mr Khosla informed me that he had only received the Respondent's written position statement the day before, but notwithstanding this he did not seek an adjournment. It was agreed by both representatives that the core issue in respect of paragraph 245ED of the Rules was whether or not a general ground of refusal applied to the first Appellant, namely paragraph 322(5) of the Rules, this being the sole basis for the Respondent's contention that paragraph 245ED could not be satisfied (see page 2 of that statement under the subheading 'Assessment').
6. Both representatives also confirmed that because of the date of the Respondent's decisions under appeal (that being 13 November 2014) these appeals all fell within the old appeal regime (i.e. pre-2014 Act amendments). Therefore it was agreed that I had jurisdiction to substitute my own discretion for that of the Respondent in relation to paragraph 322(5) of the Rules, that being a discretionary ground for refusal (see section 86(3)(b) of the Nationality, Immigration and Asylum Act 2002, as it stood before the relevant changes).
7. Mr Khosla provided me with the Respondent's guidance on the general grounds of refusal (v26.0, dated 19 April 2016). He referred me to page 31 of the guidance in which it is stated that a caseworker must only take into account information which is new and was not known to the Home Office at the time of any previous decision. Mr Khosla submitted that in her original decision the Respondent had not relied on paragraph 322(5), but rather 322(1C). He further submitted that the written position statement constituted a "new decision". Therefore the Respondent should be precluded from seeking to rely on paragraph 322(5) now. He submitted that in seeking to rely on this provision the Respondent was acting contrary to her own policy guidance. Alternatively, Mr Khosla submitted that if the Respondent was entitled to rely on this provision I should exercise my own discretion in the first Appellant's favour. He asked me to look at the circumstances of the first Appellant's case in the round. In particular he relied on the fact that the misconduct relied upon by the Respondent related to a caution only, a caution that is due to lapse the day after this hearing. There was no other adverse conduct by the first Appellant whilst in the United Kingdom.
8. Mr Khosla asked me to look at the circumstances of the two children, their length of time in the United Kingdom and their best interests. There were no strong countervailing factors in this case. Mr Khosla also referred me to pages 36 and 41 of the Respondent's guidance and submitted that the factors set out there were far removed from those pertaining to the first Appellant's case.
9. Mr Whitwell submitted that the written position statement was not a new decision but a supplementary reasons letter only. He submitted that paragraph 322(5) of the Rules had not been considered before because there was no need to as paragraph 322(1C) had applied in respect of the application originally made to the Respondent. In respect of the guidance it was non-exhaustive and deliberately couched in wide terms. The caution related to an assault on the first Appellant's daughter and in all the circumstances I should agree with the decision of the Respondent not to exercise discretion in the first Appellant's favour.
10. In reply Mr Khosla accepted that the guidance was indeed guidance only but he emphasised the fact that the first Appellant's case was not similar in any way to the matters set out therein.
11. In respect of the Article 8 claim both representatives were in agreement that if I decided in the first Appellant's favour in respect of the paragraph 245ED issue I need not go on and consider human rights. However, if it was necessary to deal with Article 8 I should consider the claims outside of the Rules and in light of Section 117B of the 2002 Act.
12. In respect of the reasonableness test, I was urged to follow the decision of the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705.
Re-making the decision in respect of the Rules
13. In re-making my decision I have had regard to the Appellant's original bundle which was before the First-tier Tribunal, indexed and paginated 1 to 73. In addition I have had regard to the supplementary bundle referred to previously. The first Appellant attended the hearing but there was no request by Mr Whitwell to ask any questions of him. There has been no specific challenge to the credibility of any of the evidence contained in the two bundles before me. I have also of course had regard to the Respondent's bundle and to the guidance provided to me today.
14. In light of the Respondent's position on the credibility of the evidence and having considered that evidence for myself, I have no hesitation in finding it to be wholly reliable.
15. It is quite clear from the Respondent's written position paper that the sole basis for concluding that the first Appellant could not meet paragraph 245ED of the Rules is that subparagraph (a) applies, namely that the application fell to be refused because a general ground for refusal applied, specifically paragraph 322(5). It is accepted that all other requirements of paragraph 245ED are met. Paragraph 322(5) of the Rules is a discretionary ground for refusal. It reads as follows:
"(5) the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations or the fact that he represents a threat to national security"
16. The burden showing that it applies to the first Appellant rests with the Respondent.
17. The sole basis provided by the Respondent for the application of paragraph 322(5) is the caution he received on 27 August 2014 for common assault. This assault related to a chastisement of his older daughter, the third Appellant. The fact of the caution is accepted by the first Appellant. Having had regard to all of the evidence before me and the particular circumstances of this case I find that I should substitute my own discretion for that of the Respondent's and exercise it in favour of the first Appellant. My reasons for this conclusion are as follows.
18. First, I reject the argument put forward by Mr Khosla that the written position statement constitutes a "new decision". The document is simply a position statement as is made clear in my directions from the previous hearing. It amounts to no more than a supplementary reasons letter, as submitted by Mr Whitwell. It was not a new decision on an application that had been formally varied prior to the original decision. Therefore, the Respondent is entitled on the face of it to rely on paragraph 322(5) without contravening that particular element of her own guidance.
19. Second, whilst not seeking to excuse the conduct of the first Appellant in respect of the relevant offence, it is right to say that it resulted in a caution only. I fully accept the first Appellant's own evidence contained in his two witness statements that he bitterly regrets what he did, appreciates that it was entirely wrong and I accept that such behaviour is highly unlikely to occur in the future. It is not in dispute that there has been no other misconduct by the first Appellant whatsoever in respect of his time in the United Kingdom or indeed elsewhere.
20. Third, and importantly, I have regard to the statement of the third Appellant herself contained in the first Appellant's bundle at page 14. She states therein that she accepted that she had been rude and disrespectful to her father and in that sense her perception was that she had provoked her father's action. She expresses the thought that she felt responsible for all of the applications being refused because of what her father did. She speaks of her behaviour being difficult, as that of a teenager often is. She also acknowledges the fact that her father clearly accepts that what he did was in any event wholly wrong. It is entirely clear from this evidence that the first Appellant and his daughter are wholly reconciled. For the avoidance of any doubt whatsoever, my consideration of this evidence has certainly not involved any sense of the third Appellant having 'asked for it'.
21. Fourth, I have of course considered other elements of the guidance document. It is obvious that guidance is what it says it is: just guidance. It represents a non-exhaustive set of circumstances and factors to be taken into account by case workers; so to that extent the fact that it does not specifically cover the same sort of circumstances pertaining to the current appeal of the first Appellant it is of somewhat limited value in respect of the first Appellant's argument. However, it is, I find, of some relevance that the matters set out generally in this guidance (relating to criminal activity, possible exclusion under Article 1F of the Refugee Convention and such like) are, as pointed out by Mr Khosla, very far removed from the first Appellant's own conduct.
22. Fifth, and finally, whilst the reasons set out above are sufficient to underpin my conclusion on the exercise of discretion, I have for the sake of completeness also taken into account the circumstances of the children. They have been in this country for a significant period of time, both over seven years. Both of them are settled in education, both have spent significant periods of their lives beyond the very youngest of ages, and neither have any meaningful links with Bangladesh (the third Appellant having left there aged just six months, and the fourth being born in the United Kingdom).
23. Given my conclusions as to the exercise of discretion under paragraph 322(5) and the fact that the Respondent has after considering the evidence submitted with the original application in detail, concluded that all other aspects of paragraph 245ED were satisfied, I find that the first Appellant succeeds under the Rules in relation to paragraph 245ED. In light of that conclusion the other three Appellants would also succeed as dependants of the first Appellant.
24. The appeals are all allowed under the Rules.
25. I have reflected on whether to go on and consider the appeals on Article 8 grounds as well. Although the representatives took the view that I need not, section 86 of the 2002 Act does mandate me to consider all issues. Therefore, in the alternative to my primary conclusions under the Rules, I assess the Article 8 claims as follows.
26. First, none of the Appellants can succeed under the Rules as they relate to Article 8. The adults clearly could not show very significant obstacles to reintegration into Bangladeshi society as at the date of their applications in 2014. Appendix FM cannot assist the first and second Appellants because of their status and the fact that they live together with their children as a single family unit. The third and fourth Appellants had not been in the United Kingdom for seven years as at the date of applications, and so paragraph 276ADE(1)(iv) does not apply.
27. Second, I look outside of the Rules. There is obviously family life as between all of the Appellants. The first and second Appellants have a genuine and parental relationship with their children. They all enjoy separate private lives as well, given the length of time here and the ties they have clearly established.
28. Third, removal from the United Kingdom as a family unit would mean that there would not be any interference with the family life. However, removal would clearly interference with the private lives to a sufficiently serious extent.
29. Fourth, the Respondent's decisions were in accordance with the law and pursued a legitimate aim.
30. Fifth, I assess proportionality in light of the section 117B factors and all other relevant matters.
31. As section 117B(6) has not been confirmed as being a free-standing provision (see MA (Pakistan), at paragraphs 17-20), I turn to this first.
32. I find that the best interests of the third and fourth Appellants are to be assessed with reference to them alone. I find that these interests lie in the children remaining with their parents and also in remaining in the United Kingdom. They have both been in the United Kingdom for eight years now. On the evidence before me they are very well settle, both socially and educationally. The third Appellant is midway through her A-Levels; the fourth is about to start his second year at secondary school. Neither have any experience of Bangladesh. A move there now would be highly disruptive.
33. The next question is whether removal would be reasonable. This is not determined by the best interests conclusion, although that is a highly significant matter.
34. The public interest lies in maintaining effective immigration control: this is a weighty factor in the Respondent's favour. On the basis that the Appellants cannot satisfy the Rules, this counts against them all.
35. All of the Appellants speak very good English. There are and always have been a financially self-sufficient family. I take into account the fact that the children are being educated at public expense.
36. The Appellants have always been in the United Kingdom lawfully, albeit with limited (and therefore precarious) leave. I take this into account, as it reduces the weight attributable to private life. This in turn feeds into the assessment of reasonableness.
37. I have considered the first Appellant's caution earlier in this decision. I refer back to what I have said already. I take the fact of the caution into account, but its relevance is significantly mitigated by the facts.
38. The children have now been in the United Kingdom some way beyond the seven year threshold. The third Appellant has spent almost half of her life here, including the all-important formative teenage years. The fourth Appellant has spent his entire life here. As stated previously, neither have any knowledge of Bangladesh.
39. Having weighed up the various factors and in light of the guidance in MA (Pakistan), I conclude that it would not be reasonable to expect the third and fourth Appellants to leave the United Kingdom. Although there are certainly matters counting against the Appellants, there are not "powerful reasons".
40. Therefore, the appeals of the first and seconds Appellants are allowed on the basis that section 117B(6) is satisfied. The appeals of the third and fourth Appellants are allowed in line with this result. Put another way, it would be unreasonable and disproportionate to remove the children and so they succeed under Article 8 in thier own right.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision of the First-tier Tribunal.
I re-make the decision by allowing the appeals under the Immigration Rules and on human rights grounds.
No anonymity direction is made.

Signed Date: 31 August 2016
Deputy Upper Tribunal Judge Norton-Taylor
TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make no fee awards. This is because the original applications made to the Respondent were based upon a different Rule to that under which the Appellants have ultimately succeeded on appeal.

Signed Date: 31 August 2016
Deputy Upper Tribunal Judge Norton-Taylor

Annex 1: The error of law decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/49226/2014
IA/49235/2014
IA/49234/2014
IA/49236/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 June 2016
On 23 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

SUMSUZ [Z] (FIRST APPELLANT)
DIL [U] (SECOND APPELLANT)
[M B Z] (THIRD APPELLANT)
[M M Z] (FOURTH APPELLANT)
(anonymity directioN NOT MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr R Khosla, Solicitor from D J Webb and Co
For the Respondent: Ms P Hastings, Senior Home Officer Presenting Officer

DECISION AND REASONS
Introduction
1. The Appellants are all Bangladeshi nationals. The first and second Appellants are the parents of the third and fourth.
2. This is an appeal by the Appellants against the decision of First-tier Tribunal Judge N M K Lawrence (the judge), promulgated on 30 September 2015, in which he dismissed their appeals on all grounds. Those appeals were against the Respondent's decisions of 13 November 2014, refusing to vary their leave to remain and to remove them from the United Kingdom under section 47 of the Immigration, Asylum and Nationality Act 2006.
3. The Respondent's decision stemmed from applications made on 27 June 2014 in which the first Appellant sought indefinite leave to remain as a Tier 1 Investor under the Points-Based System (PBS). The relevant provisions of the Rules were paragraphs 245EF in respect of the first Appellant and paragraph 319E for the others (all being his dependents).
4. On 27 August 2014 the first Appellant received a caution for common assault. When considering his application, the fact of the caution triggered paragraph 322(1C)(iv) of the Rules, because the first Appellant was seeking indefinite leave to remain and the caution would not have become spent until August 2016. As a result of this general ground of refusal, the first Appellant's application fell to be refused by virtue of paragraph 245EF(b). As a result of this, the applications of the other Appellants were also refused.
5. When appealing, both the grounds and response to the statement of additional grounds assert that he could rely on an alternative route for succeeding in his case, namely paragraph 245ED of the Rules. This was because this particular provision did not engage paragraph 322(1C). Article 8 was also raised, as the third and fourth Appellant's had been in the United Kingdom for a considerable period of time.
The judge's decision
6. The judge notes the acceptance by the first Appellant that he had indeed received a caution for the offence in question, and that paragraph 322(1C)(iv) therefore precluded success of the application for indefinite leave to remain under paragraph 245EF.
7. He considers the first Appellant's arguments as to the potential application of paragraph 245ED (paragraphs 9-13 of his decision). It is said on several occasions that success under this argument would lead to the circumvention of the "will of Parliament". In paragraph 13 he states that the approach urged by the first Appellant would be "unobjectionable, but it invites the Tribunal to circumvent the will of Parliament as expressed in para 245EF."
8. The judge felt unable to accede to the first Appellant's submission.
9. In respect of the Article 8 claim, there is fairly lengthy recitation of case-law, particularly in relation to the children (paragraphs 14-22). The headnote of the decision in Azimi-Moayed and Others (decisions affecting children - onward appeals) [2013] UKUT 00197 (IAC) is used as a framework for his assessment of the children's claims. He notes that both children have been here since 2008. It is said that the school systems in Bangladesh and the United Kingdom are "the same", but the judge goes onto say that the systems are "not too similar." Reliance was placed on the ability of children to adapt when they went to Russia some years ago, and then to the United Kingdom. It is said that there would not be a "detrimental wrench" of the children were to return to Bangladesh now. The children went home from school and then spent time with their parents at home: they were not therefore "divorced from the influence of their parents". They would have their parents if returned to Bangladesh.
10. In respect of the first and second Appellant's, the judge found that they could not satisfy paragraph 276ADE(vi). Outside of the Rules, it is said that removal would not constitute an interference with protected rights, or that it would be disproportionate.
The grounds of appeal and grant of permission
11. The grounds contend at some length that the judge should have considered the paragraph 245ED issue in substance and that he erred in his assessment of the Article 8 claims.
12. Permission to appeal was granted by Upper Tribunal Judge Bruce on 14 April 2016. She was of the view that paragraphs A34-34A of the Rules may render the effect of SZ (applicable immigration rules) Bangladesh [2007] UKAIT 00037 redundant. However, it was arguable that the judge had got the Article 8 assessment wrong.
The hearing before me
13. Mr Khosla submitted that SZ and AS (Afghanistan) [2009] EWCA Civ 1076 remained good law. There was no problem here with post-decision evidence from the Appellant because he was relying on the same evidence as had been submitted with the application itself. An application form itself was not new evidence (if such a form were requited).
14. In respect of Article 8, he accepted that paragraph 276ADE(iv) did not apply to the children because they had not been in the United Kingdom for seven years continuously as at the date the applications were made. However, he relied on the grounds as regards errors in the assessment of Article 8 in general.
15. Ms Hastings relied on the rule 24 response and submitted that because a different form was required for an application for further leave to remain, this constituted new evidence and therefore section 85A applied. She relied on the decision in Ali (s.120 - PBS) [2012] UKUT 00368 (IAC). In respect of the Article 8 point, Ms Hastings noted the fact that the family were prosperous, the children had adapted when they went to Russia, and that the caution was relevant to the public interest.
Decision on error of law
Ground 1: the paragraph 245ED issue
16. I find that the judge did materially err in law by declining to consider the first Appellant's argument on paragraph 245ED in substance.
17. In refusing the first Appellant's application for indefinite leave to remain it is clear from the Respondent's reasons letter that the sole basis for doing so was the fact of the caution and the consequent applicability of paragraph 322(1C) to paragraph 245EF(b). No other point was taken against the first Appellant.
18. In the notice of appeal to the First-tier Tribunal, it was asserted both in the 'primary' grounds and in the statement of additional grounds that the first Appellant was relying on an alternative route for success under paragraph 245ED.
19. Paragraph 245ED is in identical terms to paragraph 245EF in respect of the number of points required. Both provisions relate to Tier 1 Investors. The only material differences are the nature of the leave to be granted if the requirements are met, the need to show that a Life in the UK test had been completed (it had been), and that paragraph 322(1C) bites on paragraph 245EF, but not on paragraph 245ED.
20. I conclude that in the circumstances of this particular case, the first Appellant was entitled to make this argument, and that the judge should have go on and considered it on the merits rather than simply stating that to do so would contravene the will of Parliament. My reasons for this conclusion are as follows.
21. First, I note the fact that SZ and AS (Afghanistan) were not concerned with PBS scenarios. However, in my view both remain sound as regards the principle that in appropriate case (in particular where a statement of additional grounds has been served and the relevant argument raised therein), the First-tier Tribunal should consider the issue on its merits. The First-tier Tribunal can, and often is, a primary decision-maker in this respect.
22. Second, there is nothing necessarily inconsistent as between this principle and the decision in Ali. Ali highlights the application of section 85A of the 2002 Act to PBS cases and the inability of appellants to seek to introduce new evidence on appeal, including through responses to section 120 notices. Section 120 notices cannot be used as a backdoor means of levering in fresh evidence. However, the present case provides a good example, in my view, of how the case-law referred to above sits relatively comfortably together. Here, the first Appellant was not seeking to rely on any post-application evidence: he was simply asserting that the evidence he had submitted with his application met all the requirements of a different, albeit obviously connected, Rule, namely paragraph 245ED. This assertion had, on its face, real merit. The fact of the caution was only relevant to a consideration of the application for indefinite leave to remain under paragraph 245EF. Paragraph 322(1C) would not have applied to a consideration of paragraph 245ED.
23. Third, I do not see any merit in Ms Hastings' argument that an FLR application form was either required, or that it would constitute 'new evidence'. The point is that if the First-tier Tribunal should consider a possible alternative route under the Rules, the presence or absence of the appropriate form is immaterial.
24. Fourth, in this case, there was no question of the judge being required to hunt around for himself seeking to decipher which, if any, alternative Rules may apply to the first Appellant. The particular provision relied upon had been stated in the notice of appeal. In that sense, it was clear.
25. Fifth, the fact that the Respondent had not actually awarded points to the first Appellant because of the basis of refusal (paragraph 322(1C)) did not of itself mean that the judge was precluded from making his own decision on the evidence submitted with the application. He would simply have been in the position of a primary decision-maker.
26. Sixth, the reason provided by the judge for failing to consider the first Appellant's argument on its merits was in my view inadequate. It may have appeared as though the first Appellant was seeking to avoid the fact of the caution. However, this burden prevented him from obtaining indefinite leave, and this itself represented the will of Parliament, as reflected in the Rules.
27. Seventh, paragraphs A34-34A of the Rules did not defeat the first Appellant's case because the First-tier Tribunal can still be a primary decision-maker. In a case such as the present, this can still occur in the context of the PBS.
28. For all of these reasons, the judge erred. It was a material error as the first Appellant's argument had a realistic prospect of succeeding.
Ground 2: the Article 8 issue
29. I conclude that the judge materially erred in his consideration of the Article 8 claims relating to the two children in particular.
30. I would say first that the judge was in fact wrong to have considered the children's' claims under paragraph 276ADE(iv) because of the chronology of events. At the time the applications were made (on 27 June 2014) they had not been in the United Kingdom continuously for seven years, having arrived in 2008. This would not necessarily be a material error, though.
31. In terms of the substance of his consideration of the claims, I find that the following material errors have been committed.
32. First, it is, with respect, very difficult to see where the judge has in fact stated a conclusion, based on all relevant factors, as to what the children's best interests actually were. In cases such as these, the mere fact that the family would be removed together is not, without a clear and detailed explanation, sufficient to found a conclusion that the best interests have no scope beyond that.
33. Second, I cannot see how or why the judge reached the conclusion that the Bangladeshi educational system was "the same" as that in the United Kingdom.
34. Third, at the date of the hearing before the judge the third and fourth Appellants had been in this country for over seven years. The older child had been here since the age of nine, and the younger since he was almost four. In view of the guidance offered in Azimi-Moayed (and of course cited by the judge at length) and other cases, there is an inadequacy here of consideration and reasoning as to the degree of integration into life in the United Kingdom (educationally and socially), and the impact of being removed on the children. In fact, there is very little by way of fact-finding as to the children's' circumstances in general. For example, there is nothing on the possible implications of the third Appellant being taken out of her A-Levels (which had just begun at the relevant time) or the fourth Appellant having to leave this country immediately before moving into Year 7 (secondary school). Both children were on the face of it at important stages in their educational lives.
35. Fourth, is right that Russia is mentioned by the judge. However, I can see no adequate assessment of the undisputed fact that the third Appellant left Bangladesh for Russia aged just six months and had never lived in the country of her birth since. The fourth Appellant was born in the United Kingdom during a period of residency here between 2003 and 2005. He has never lived in Bangladesh. Neither of these two seemingly important matters have been adequately considered.
36. Fifth, as Upper Tribunal Judge Bruce says in the grant of permission, even if the judge was correct not to have permitted the first Appellant to succeed under paragraph 245ED, the satisfaction of an alternative route under the Rules was, in principle, relevant to the assessment of the Article 8 claims.
37. Sixth, in respect of the assessment outside the Rules it was simply not open to he judge to properly conclude that the Appellants' removal would not even constitute an interference with any of their private lives.
38. Seventh, the assessment of proportionality is brief and wholly unreasoned. Relevant factors have been left out. It appears as though the judge has in effect erroneously treated the Rules as being a complete code.
Summary
39. In light of the above, I set aside the judge's decision in its entirety.
Disposal
40. Initially, I was of the view that if there was an error on ground 1 I could remake the decision and allow the appeals on the limited basis that the Respondent's original decisions were not otherwise in accordance with the law. This would have had to be on the basis that the Respondent should have considered the first Appellant's application under paragraph 245ED.
41. Having reflected on the matter, I now take the view that whilst the judge erred in refusing to consider the first Appellant's submission on the alternative route, the Respondent's decisions were not unlawful.
42. The first Appellant applied on the clear basis that he was seeking indefinite leave to remain. He used the appropriate form and paid the relevant fee. The Respondent considered the application on the basis of the application as made to her. The alternative route under paragraph 245ED was not raised until the decision was made. Further, the Respondent has in fact applied the provisions of paragraph 245EF correctly, as is accepted by the first Appellant. Therefore, the Respondent did not act otherwise than in accordance with the law.
43. In addition, the applications made by the Appellants were not done so on the basis of human rights. The Respondent's failure to consider Article 8 was also not unlawful.
44. The Respondent has discretion to withdraw her decisions in light of my error of law decision, but that is a matter for her.
45. As a result of the above, I have decided to retain these appeals in the Upper Tribunal and to hold a continuation hearing following which I will remake the decisions myself.
46. The appeals are therefore adjourned.
47. As Ms Hastings rightly pointed out at the hearing, it is important that the Respondent has an opportunity to consider the evidence originally submitted in the context of paragraph 245ED. Given the circumstances of the third and fourth Appellants, it is also very important for the Respondent to now consider Article 8 in substance.
48. I shall give effect to these observations in directions, below.
Anonymity
49. I have not been asked for a direction in these appeals and I see no sound reason to make one.

Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision of the First-tier Tribunal.
The appeals are adjourned.
Directions to the parties
1. These appeals are adjourned;
2. Paragraph 245ED of the Rules and Article 8 are live issues in these appeals;
3. The Appellants shall, no later than 1 July 2016, file with the Upper Tribunal and serve on the Respondent any further evidence relied upon in these appeals, including any updated witness statements;
4. The Respondent shall provide the Upper Tribunal and Appellants with a written position statement setting out;
a) her assessment of the evidence submitted by the first Appellant with his application of 27 June 2014, and in the context of paragraph 245ED of the Rules;
b) her consideration of Article 8 in relation to all the Appellants, with particular regard to the best interests and wellbeing of the third and fourth Appellants;
This statement shall be filed with the Upper Tribunal and served on the Appellants no later than 12 August 2016;
5. The appeals shall be relisted before myself at Field House on 25 August 2016;
6. Limited oral evidence is permitted at the continuation hearing.
Directions to Listings
1. These appeals are to be relisted before Deputy Upper Tribunal Judge Norton-Taylor at Field House on 25 August 2016;
2. There is a time estimate of 2 hours;
3. No interpreter is required.

Signed Date: 20 June 2016

H B Norton-Taylor
Deputy Judge of the Upper Tribunal