Much of the rest of the First-tier Tribunal's decision thereafter is a recitation of Article 8 itself, the case of Razgar , and the provisions of section 117B and 117D of the 2002 Act. Paragraph 32 then states this: "The refusal of a short extension is wholly disproportionate on the facts." There is then some reference to the difficulties suggested to have been encountered in obtaining English language testing relevant to the Appellant's studies.
It seems to me absolutely clear that the First-tier Tribunal Judge has not made any attempt to go through the five Razgar questions. Nowhere does the Judge identify the nature or the quality of the family and/or private life said to be enjoyed by the Appellants in the United Kingdom. The reference at paragraph 32 to a 'disproportionate' decision is not obviously an Article 8 balancing exercise because there is no evaluation of the private/family life element. Rather it appears that the Judge merely considers the decision to refuse an extension of a short period of time for the First Appellant to seek to put himself in a situation where he could support an application to continue his studies to be 'harsh' or 'unfair'. In the alternative, if it was indeed the Judge's view that the decisions disproportionately interfered with any aspect of private or family life, the decision is deficient for a lack of analysis and an absence of findings as to private and/or family life.
More particularly in this regard any such analysis would have had to have taken on board the decision in Patel - a matter that was clearly influential in the grant of permission to appeal by Judge White. In Patel [2013] UKSC 72 at paragraph 57, in the now well-known speech of Lord Carnwath, it is stated:
"It is important to remember that article 8 is not a general dispensing power. It is to be distinguished from the Secretary of State's discretion to allow leave to remain outside the rules, which may be unrelated to any protected human right. The merits of a decision not to depart from the rules are not reviewable on appeal: section 86(6). One may sympathise with Sedley LJ's call in Pankina for "commonsense" in the application of the rules to graduates who have been studying in the UK for some years.... However, such considerations do not by themselves provide grounds of appeal under article 8, which is concerned with private or family life, not education as such. The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under article 8."
In my judgment the decision of the First-tier Tribunal Judge plainly runs contrary to the principles and guidance to be derived from the case of Patel , and the First-tier Tribunal Judge nowhere identifies any basis for distinguishing those principles and guidance of the facts of this particular case.
Accordingly, in all the circumstances I am satisfied that there was a material error of law which requires that the decisions of the First-tier Tribunal Judge should be set aside.
Remaking the decisions
I proceed to remake the decisions in the appeals.
As I have already identified, the Appellants were in effect asking for a short period of leave to enable the First Appellant to make arrangements whereby he could be in a position to apply for further leave as a student - it being his case that he had not had sufficient time so to do. It seems to me that it is unfortunate in those circumstances that any reference was made to Article 8 in the application letter drafted by his representatives at all. It may well be that it is because of that reference that the Secretary of State's decision-maker embarked on no more than a consideration of the case against the framework of the Immigration Rules relating to family and private life.
The reality is that the Appellants were not seeking to secure leave under the Rules by reference to Appendix FM or paragraph 276ADE, but were in fact asking for a short period of leave outside the Immigration Rules. In effect, recalling the passage from Patel quoted above, the Appellants were inviting exercise of " the Secretary of State's discretion to allow leave to remain outside the rules, which may be unrelated to any protected human right ".
In my judgment the RFRL does not engage with the application in that manner, and to that extent I am satisfied that the decision of the Secretary of State was not in accordance with the law. In short, the Secretary of State failed to engage with an application based on a request for a short period of discretionary leave outside the Rules.
It is beyond the jurisdiction of this Tribunal to make a substantive decision on the basis of discretion outside the Rules, and accordingly I conclude that the appeal is to be allowed to the extent that the decisions of the Respondent were not in accordance with the law, and the Appellants' applications in effect remain outstanding before the Secretary of State and now requires to be determined in accordance with the law.
Notice of Decisions
The decision of the First-tier Tribunal contained material errors of law and are set aside.
I remake the decisions in the appeals.
The appeals are each allowed on the basis that the decisions of the Respondent were not in accordance with the law, and accordingly the Appellants' applications now require to be decided by the Secretary of State in accordance with the law.
No anonymity orders are sought or made.
The above represents a corrected transcript of an ex tempore decision given at the conclusion of the hearing.
Signed: Date: 4 February 2016
Deputy Upper Tribunal Judge I A Lewis
TO THE RESPONDENT
FEE AWARD
As I have allowed the appeals and because a fee has been paid or is payable, I have considered making a fee award. I have decided to make a whole fee award because the Respondent has failed to engage with the real basis of the Appellants' applications.
Signed: Date: 4 February 2016
Deputy Upper Tribunal Judge I A Lewis