Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00163/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 7 February 2017
On 13 February 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

FS

Respondent

For the Appellant: Mr M Matthews, Senior Home Office Presenting Officer
For the Respondent: Mr E MacKay, of McGlashan MacKay, Solicitors

DETERMINATION AND REASONS

1. The SSHD appeals against a determination by First-tier Tribunal Judge Kempton, promulgated on 25 November 2016, allowing the appeal of FS on the basis of article 8 of the ECHR, outside the immigration rules, and the best interests of the appellant's children.
2. The rest of this decision refers to the parties as they were in the FtT.
3. The FTT decision is headed "anonymity direction not made", but it makes one at the end. The matter was not addressed in the UT. In the circumstances, I have preserved the order in this decision.
4. The SSHD's grounds in summary are as follows.
Having found the appellant untruthful in her asylum claim and over evidence given in prior applications to visit the UK, there was no basis for the conclusion that she would be returning to Nigeria without access to support. Given the adverse credibility findings, it was likely that she had a family and probably a husband (named on the visa application) to whom to return, so her mental health was unlikely to deteriorate and there would be support available for children from other family members.
The burden remained on the appellant to demonstrate that she would be unable to continue family life elsewhere, and to demonstrate that she had no means of support in Nigeria; not, as suggested by the judge, for the SSHD to prove that she had, which reversed the burden of proof. The process of removal is the responsibility of the SSHD. Its viability would be assessed at the stage of return, a process managed with the necessary safeguards to ensure the safety of all involved.
The judge erred by treating the best interests of the children as a trump card, elevating them above a primary consideration into the primary consideration. There was no indication that the balancing exercise was carried out in respect of the public interest.
The assessment of the best interests of the children was not the sole relevant consideration in terms of section 117B(6)(b), whether it was reasonable to expect them to leave the UK. The approach had to reflect all relevant factors.
The judge failed to identify anything so exceptional on the facts as to even warrant consideration outside the rules.
5. Mr Matthews submitted thus. The grounds are incorrect in referring to the "interplay of section 117B(6)(b) and the best interests analysis". The appellant's children are not qualifying children as defined in section 117D, so the provision does not apply. However, the fact that they are not qualifying children, and so their article 8 interests do not fall within the same sphere, was a point which the judge failed to take into account. The judge's essential error of legal approach was in approaching the case as if it depended on evaluating the best interests of the children, and nothing else. There were always considerations to be taken into account on both sides in the eventual proportionality exercise, which the judge entirely failed to do. Issues at section 117B (2) and (3) were relevant. The appellant elected to conduct her asylum interview in Yoruba, so English was not her first language. She appeared to have given evidence in English at the hearing, and this might not be the strongest point, but it ought to have been mentioned. More significantly, it appeared that if the appellant and her children were to remain UK they would be far from financial independence, and likely to be a significant burden on taxpayers - most obviously, in respect of health and education costs. Given the disregard of the public interest factors and the absence of a balanced evaluation, the final outcome was unreasoned and could not stand. It was an incongruous to conclude, given the adverse credibility conclusions, that the appellant would have no family support in Nigeria. She arrived after making a visit visa application, specifying that she had a husband in Nigeria. He was later said to have disappeared in 2009, but was named in the visa application in 2013. The Secretary of State has careful systems for management of removals, a matter which should be within the knowledge of the judge. If the decision were to be remade, the respondent would seek to lead evidence about the returns process, a complex one involving oversight of an independent panel.
6. Mr Mackay asked me to find that the judge made no material error of law. He submitted that the article 8 outcome was well reasoned and supported by the evidence. The judge set out appropriate self-directions on article 8 at paragraphs 8 and 9. The grounds said the appellant had been "wholly disbelieved", but it had been accepted that she had significant mental health difficulties, as disclosed by a psychiatric report. It could reasonably be read into the decision that the judge had regard to all relevant considerations, not only to the best interests of the children. The case had been such a compelling one on its facts that no more had been needed. If there were to be a rehearing, then given the age of the medical evidence, the appellant would seek to obtain updated reports.
7. I reserved my decision.
8. The judge found at paragraph 41 that the appellant failed to establish her protection claims. She opened her further discussion at paragraph 42 by saying, "There only remains the issue of section 55 and the best interests of the children". The following passages are concerned only with those interests up to paragraph 46, beginning, "In all the circumstances, the appellant has to succeed in terms of article 8? having regard to section 55 issues".
9. Mr Mackay sought to argue that a consideration in the round could be "read into" the decision, and I accept that care must be taken to distinguish between mere errors of form and errors of substance; but it is clear that the balancing exercise is absent.
10. It is also clear from the grounds and submissions that the decision lacks a reasoned foundation for its factual conclusions about the impact of return to Nigeria on the best interests of the children.
11. Another manifestation of error is that the conclusion quoted above from paragraph 46 is followed by the sentence, "The lack of a care plan on removal to Nigeria means that the respondent has not made arrangements for ensuring that the welfare of the children is safeguarded and promoted." Removal arrangements are put in place once appeal processes are exhausted, not in anticipation of the outcome. The respondent is not required to prove that a specific plan is already in place in a particular case.
12. The decision of the FtT is set aside. Although the nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the FtT for a fresh hearing, that further hearing is limited to the issues on which error has been shown. There is no basis for re-visiting the conclusions on the protection claim.

13. The member(s) of the FtT chosen to consider the case are not to include Judge Kempton.
14. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

9 February 2017
Upper Tribunal Judge Macleman