Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: AA/03001/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On December 5, 2016
On December 9, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

MRS O O A
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Mair, Counsel, instructed by GMAU
For the Respondent: Ms Peterson (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. The appellant is a citizen of Nigeria and she was born on August 14, 1971. She arrived in the United Kingdom on August 8, 2008 as a highly skilled migrant and applied in time for leave to remain on April 3, 2010. Her application was refused due to an error with payment. She then submitted an out of time applications on May 6, 2010 and June 26, 2010 but both applications were refused. On September 1, 2010 she was served with Form IS 151a on September 1, 2010 as an overstayer. On January 23, 2012 she applied for asylum but this was refused by the respondent on April 20, 2014. Her appeal came before Judge of the First-tier Tribunal Haney on November 12, 2014 and in decision promulgated on November 28, 2014 he refused her appeal and those of her three dependants on all grounds. The appellant appealed that decision and permission to appeal was granted by Judge of the First-tier Tribunal Kimnell. Deputy Upper Tribunal Judge Birrell found on September 13, 2015 there had been an error in law and remitted the matter back to the First-tier Tribunal on the grounds of procedural unfairness.

2. The appeal then came before Judge of the First-tier Tribunal M Davies on March 11, 2016. In a decision promulgated on March 21, 2016 he dismissed the appellant's appeal.

3. The appellant lodged grounds of appeal on April 1, 2016 against that decision.

4. Permission to appeal was granted by Designated Judge of the First-tier Tribunal MacDonald on April 14, 2016 and the matter came before me on the above date.

5. Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their 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.

SUBMISSIONS

6. Ms Mair acknowledged that her article 8 ground of appeal was stronger than the remaining two grounds but nevertheless she submitted there was an error of law for all of the reasons stated in the grounds of appeal. The Judge had failed to properly consider the best interests of the children because he failed to have regard to the substantial bundle of evidence submitted concerning A's (appellant's child) special needs. The Judge failed to attach sufficient weight to the A's subjective fear of his father's family and failed to consider all the evidence in the appellant's bundle of documents. The appellant's husband had been convicted of child abuse in respect of the children and the Judge failed to carry out a detailed section 55 assessment as he failed to consider the position based on the evidence served after the respondent's decision. The Judge failed to attach sufficient weight to the seven years the child had lived in the United Kingdom or the fact that one of the appellant's other children had given birth to a child with an EEA national as a father.

7. Ms Mair also submitted that the Judge considered the section 8 issue too early in his decision. The Judge did not have regard to why she had not claimed asylum earlier and this amounted to an error in law.

8. Ms Mair further argued that that the Judge should have considered the expert report as part of the overall claim and not after making findings about the appellant's claim.

9. Ms Peterson adopted her colleague's Rule 24 statement dated April 21, 2016. She submitted that contrary to Ms Mair's submissions the Judge did have regard to the appellant's son's individual circumstances but went on to make findings open to him on the facts. The Judge demonstrated in his decision an understanding of all the facts and there is no error of law because the Judge did not list everything. As for Section 117B(6) it was not sufficient to merely show seven years residence as there was also a reasonableness test. The Judge did not find there was no evidence to support the appellant's claim but he did find there was no credible evidence. The Judge had regard to the A's fear of his father's family but rejected the claim he would be at risk on return. The Judge also had regard to the other family members and his findings in paragraph [117] of his decision were open to him.

10. Ms Peterson further submitted that the Judge had properly considered the appellant's delay in claiming asylum earlier and had rejected her explanation and given reasons in paragraph [96].

11. Ms Peterson went onto argue that the Judge had made findings on the appellant's account and the expert evidence would not have assisted him. The Judge gave reasons for rejecting the appellant's case and found she had fallen out with family and consequently the report took matters no further.

12. Ms Mair responded to these submissions and submitted that there was credible evidence before the Judge and he had failed to have regard to it. IN considering the best interests of the children the Judge failed to have regard to the effect on the child's father if the appellant and her children were forced to leave.

DISCUSSION AND FINDINGS

13. Permission to appeal was given in this case primarily because the Judge may not have made a clear assessment of the children's best interests or apply correct case law. Permission was given on the other grounds but Designated Judge of the First-tier Tribunal MacDonald indicated he found little in either of the other two grounds.

14. This case has a regrettable history. I say regrettable because the case finds its way before me following two substantive appeals in the First-tier Tribunal and I am the second Judge in the Upper Tribunal having to decide if an error in law has been made.

15. Her leave as a highly skilled migrant was coming to an end and she applied unsuccessfully on three occasions to extend her leave. Following the last of those applications she was served with a notice as an overstayer.

16. The appellant married MO in an arranged marriage in 1992. She then met EA and lived with him between 1993 and 2000 and during that period she gave birth to her four children. They separated in 2000 but she regained contact with him in 2003. However, they were not together as a family and in 2008 she came to the United Kingdom with her children and her husband as a dependant. However, this complicated family matrix became more complicated because after arriving in the United Kingdom she and her husband separated and she went to live with EA with the children.

17. It is not disputed that EA assaulted the children and received a suspended prison sentence and the children were taken into care albeit they were returned to her.

18. The appellant's asylum claim was based on threats made by her husband's family in Nigeria and she also received threats and abusive letters in the post. She claimed her brother was visited by EA's family and she feared that if she returned to Nigeria she would face persecution. The respondent rejected her claim and the Judge had to deal with this claim first and foremost.

19. In a detailed decision the Judge set out the factual background and detailed the oral evidence that was given on this issue by both the appellant and her witness. The Judge also set out the representative's submissions and then at paragraph [96] the Judge set out his findings.

20. Ms Mair raised two errors of law that are unconnected to her article 8 argument.

21. Ms Mair argued the first error concerned the Judge's approach to Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The Judge began his consideration of the evidence with this very issue. He wrote, "I firstly conclude that the delay in the appellant claiming asylum does have the effect of damaging her credibility." The Judge continued in paragraph [96] and gave his reasons why he felt it damaged her credibility.

22. Section 8(4) of that Act makes clear-

"This section also applies to failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country."

23. Section 8(5) of that Act also states-

"This section also applies to failure by the claimant to make an asylum claim or human rights claim before being notified of an immigration decision, unless the claim relies wholly on matters arising after the notification."

24. The Judge did not reject the appellant's claim for delaying her application but simply made, as he was required to do, an assessment about her delay in making the application.

25. Designated Judge of the First-tier Tribunal MacDonald did not find this to be a strong argument and I am satisfied there was no error in law on this issue.

26. The second error raised by Ms Mair related to the Judge's treatment of the expert's evidence. The appellant's fear was based on what her husband's family were said to have done. The Judge was obliged to consider her account and make findings. The Judge accepted the appellant's husband's cousin may well be the Governor of Ogun Province but he rejected the appellant's oral and written evidence of written and physical threats. The findings he made in paragraphs [97] to [100] explain why he then went on to find the expert evidence did not help him. The expert evidence could not assist him with the appellant's explanation of what happened and more importantly why she did not report the incidents to the police. The Judge gave detailed reasons for rejecting the appellant's claim and he then went on to give reasons why the expert evidence did not help him. No error in law is revealed by this second ground.

27. The final and Ms Mair's own words the strongest ground centred in the Judge's approach to article 8 and the best interests of the children. She submitted the Judge's consideration of article 8 was inadequate and failed to address all the issues raised.

28. The Judge's article 8 findings appear to commence around paragraph [115] and conclude at paragraph [124]. The Judge refers to A's particular problems but found that the appellant would have recourse to both education and health care in Nigeria. The Judge also had regard to the fact that A had lived here for seven years. A was three years of age when he came to the United Kingdom and when the application was submitted he was almost seven years of age.

29. It seems there was no responsibility upon the Judge to consider A's situation having regard to paragraph 276ADE(iv) HC 395 because at the date of his mother's application he had not lived here for seven years but under his article 8 assessment it would be incumbent on him to have regard to Section 117B(6) of the 2002 Act because that is concerned with the date of hearing. The test in paragraph 276ADE(iv) HC 395 and Section 117B(6) of the 2002 Act are the same and both require a seven year continuous stay here plus an assessment of whether it would be reasonable to expect the child to leave the United Kingdom.

30. The Judge clearly had regard to A's situation. At paragraph [92] he referred to Ms Mair's submission, " I should take into account the trauma that he has faced and his special educational needs. Those needs are met by specialist care in the United Kingdom. As the evidence indicates in the supplemental bundle A is fearful of any change which would cause him extreme anxiety and it would not be in his best interest to remove him to Nigeria?."

31. Quite clearly, the Judge was alert to the evidence relating to A but Ms Mair argues that he failed to deal with the abundance of evidence presented. Whilst I accept the Judge's assessment of A is not as detailed as it could have been the issue for me is whether his approach to the evidence was one that was open to him. Article 8 is a discretionary ground and it follows that a different case worker or Judge may have attached more weight to aspects of the appellant's claim than was done in this case. Miss Peterson has submitted the Judge's approach does not amount to an error in law.

32. It cannot be shown the Judge ignored the evidence. He was clearly aware of it as he set it out in some detail and I find that he has considered the evidence and Ms Mair's arguments on this element of her grounds is a further attempt to litigate the issues afresh to a different audience.

33. The Judge was clearly conscious of Section 117B(6) as he refers to the wording of the test in paragraph [116] of his decision. I conclude his assessment of the evidence in respect of A is sustainable. I will return to the overall position in due course.

34. The Judge's approach to daughter A and her child was also raised in the grounds of appeal. Ms Mair appeared to accept daughter A's child was not a British subject because she referred to the fact she was an EEA national. A was 21 years of age at the hearing and there was limited evidence before the Judge about her child and the involvement of the father. Clearly, A is an adult and as the mother of an EEA family member she would have certain rights. It seems that the Judge is being criticised for not dealing with a matter that was not before him. His comments at paragraph [117] are not misplaced.

35. Having made findings of fact the Judge then returned to the issue of proportionality from paragraph [119] onwards. Nothing contained in paragraphs [120] to [124] is misplaced or wrong in law.

36. Ultimately, the Judge was dealing with an appellant and one child under the age of eighteen plus two children over the age of eighteen and one grandchild. The Judge was not required to set out each piece of evidence as long as he demonstrated an engagement and an understanding of the evidence presented. I am satisfied the Judge did just that. The Judge is not required to set out each piece of case law. Case law sets out how the law should be considered and applied.

37. The Judge was aware of his responsibilities and applied the principles to the facts. His conclusions were open to him and there is no error in law.

DECISION

38. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. I uphold the decision in so far as article 8 ECHR is concerned.

Signed: Dated:

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

I make no fee award because I have dismissed the appeal.

Signed: Dated:

Deputy Upper Tribunal Judge Alis