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In a decision promulgated on 26 January 2017, Judge Gandhi (the judge) dismissed the appeals under the Immigration Rules but allowed them under Article 8.
It was unclear from the decision why the judge was adopting a reasonableness test at [94] and [108] when any test was confined to children who were settled here and the adult sons of the appellants were neither. Further, whilst acknowledging that the appellants had overstayed since 2007 and the first appellant had a criminal record, the judge appeared to place no weight on those facts when he balanced proportionality leading to a clear misdirection in law.
The reasons given for finding compelling circumstances, the misdirection as to the reasonableness test and failing to consider the immigration history of the parents was such that the judge's decision was irrational and did not stand up to scrutiny.
"2. It is arguable that the judge's findings that there are compelling circumstances to enable a freestanding Article 8 claim to be considered are flawed and based on a misunderstanding of the law.
It is arguable that the judge did not apply correctly the 'public interest' considerations set out in S.117B.
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