Case No. UKUT-00628-(IAC)

. 30. It is of particular note that the respondent does not seek to challenge the judge’s findings under section 117B(6): there is no challenge to the finding that the appellant has a genuine and subsisting parental relationship with his children and neither is there any challenge to the finding that it would not be reasonable to expect the children to leave the United Kingdom. There has never been any suggestion by the respondent, either in the grounds seeking permission or by Mr Norton before me, that Judge Pullig erred in his understanding or application of section 117B(6). 31. The sole challenge made by the respondent to Judge Pullig’s decision is that he did not go on to apply the provisions of section 117C of the 2002 Act, on the basis that the appellant was a foreign criminal. 32. The first point to be made in that respect is that that was not an argument pursued by the respondent at the hearing before Judge Pullig. It is clear from the judge’s summary of the submissions at [112] to [118] and from his detailed record of proceedings that the respondent relied only upon the provisions in section 117B and made no reference to section 117C at the hearing. It is therefore somewhat disingenuous for the Secretary of State to now criticise the judge for having failed to consider the respondent’s case on a different basis to that upon which it was presented before him. 33. It is nevertheless now the respondent’s case that the judge, having found at [160] that paragraph S-LTR.1.5 of the immigration rules applied to the appellant, ought to have made findings on (a) whether or not the appellant was a persistent offender and (b) whether he was therefore a foreign criminal as defined in section 117D(2) of the 2002 Act and that, if he was, he ought to have then gone on (c) to consider s117C. The rationale behind this is, no doubt, that the relevant test under section 117C, when considering the weight to be attached to the appellant’s relationship with his children, would not be that within the more generous section 117B(6)(b) “ it would not be reasonable to expect the child to leave the United Kingdom ”, as applied by Judge Pullig, but rather the “ unduly harsh test ” within section 117C(5) which did not necessarily require that the child leave the United Kingdom and was thus a more stringent test, as considered in the recent case of