IA167482014 & Ors.

The claimants, Muhammad Ashraf, date of birth 10.4.75, his wife, Shumaila Ashraf, date of birth 21.1.80, and their children, Rabeel Farhat, date of birth 18.9.02, and Wadood Aghani, date of birth 27.1.04, are citizens of Pakistan.

This is the appeal of the Secretary of State against the determination of First-tier Tribunal Judge Frankish promulgated 21.7.14, allowing the claimants appeals against the decisions of the Secretary of State to refuse their applications for leave to remain in the UK on the basis of family and private life, and to remove them from the UK pursuant to section 10 of the Immigration and Asylum Act 1999. The Judge heard the appeal on 7.7.14.

The grounds of appeal complain that the First-tier Tribunal Judge allowed the appeals on the basis of article 8 outside the Immigration Rules and failed to consider Appendix FM and paragraph 276ADE. That is inaccurate. The appeals of the child claimants were allowed under 276ADE and it was thus only the appeals of the parents that were allowed under article 8 ECHR outside the Rules. Further it is clear that the judge did give consideration to the Immigration Rules.

Relying on Gulshan (Article 8 � new Rules � correct approach) [2013] UKUT 640 (IAC) , the grounds go on to argue that the judge made no findings of compelling circumstances before making a free-standing article 8 assessment.

That of course has knock-on effects for the consideration of the parents� claims, even though they failed to qualify under the Rules on the basis of family life under Appendix FM and EX1, which did have a reasonableness test.