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At the hearing on 24 September 2018 the issue was whether or not there were material errors of law made by the Judge. The first ground raised the issue that the Judge made adverse findings against the First Appellant's credibility in connection with his claim. It seemed the Appellants had been poorly served by the representation that had previously been undertaken and in the result matters had not been addressed as they should have been.
Mr Tufan argued that the issue of the First Appellant's criminality cannot be gainsaid and whatever explanation the First Appellant has, would like to give or how he would wish the offences to be assessed, it was really not for the Judge to go behind the convictions. Even if there was diminished fault on the Appellant's part for the convictions, nevertheless he had committed the offences. There was nothing to gainsay that fact and in the circumstances the adverse criticisms and the inferences the Judge drew really added nothing to the matter.
On behalf of the First Appellant it is said that the Judge made a fundamental error of law and reliance was placed amongst other things on the case of HA v SSHD [2010] CSIH 28 . That case noted, in relation to a similar point, the fact that a Judge had disputed an issue over the genuineness of the membership card and ought to have afforded the First Appellant the opportunity to comment on the falsity of the document and possibly its reliability, which was not given.
Ground 3 raises the issue of the family life between the Appellants and their adult children to the extent of their dependency upon the latter.
The Judge's conclusion was that Article 8 rights were engaged but the level of interference was not of the necessary significance, was perhaps a surprising one which other Judges might reach a different conclusion. However the fact that others may differ on that issue added nothing to it because it was for the Judge himself to reach that view, which he did, on the totality of the evidence. It is not suggested that he was not aware of the relationship between the Appellants and their children.
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