Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03934/2014

THE IMMIGRATION ACTS

Heard at The Royal Court of Justice, Belfast
Decision & Reasons Promulgated
On 2 August 2016
On 13 September 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

FAD
(ANONYMITY DIRECTION MADE)
Respondent

ANONYMITY
I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Unless the Upper Tribunal or a Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the Appellant or her child. This prohibition applies to, amongst others, all parties and their representatives.

Representation:
For the Appellant: Mr M Matthews, Senior Presenting Officer
For the Respondent: Mr S McTaggart, instructed by Nelson-Singleton solicitors

DECISION AND REASONS

Introduction
1. The appellant before the Upper Tribunal is the Secretary of State for the Home Department. I shall refer to FAD as the claimant herein.
2. The claimant is a national of Nigeria. She has a son (ID) born in Dublin in January 2006 who is also a national of Nigeria and is dependent on the claimant's application. The claimant entered the Republic of Ireland in 2005, and thereafter made a claim for asylum, which was rejected in or around 2011. She then travelled to Northern Ireland and claimed asylum in the United Kingdom on 19 August 2011. This claim was refused by way of a decision dated 3 June 2014 and a subsequent decision was made to remove her from the United Kingdom as an illegal entrant.
3. The claimant appealed this decision to the First-tier Tribunal and by way of a decision signed on 13 August 2014 Judge Gillespie dismissed the claimant's appeal on Refugee Convention, Article 2 and Article 3 ECHR grounds, but allowed it on Article 8 ECHR grounds. That decision was subsequently set aside by Upper Tribunal Judge King, in a decision promulgated on 16 February 2015. The appeal was remitted for reconsideration by a differently constituted First-tier Tribunal on the Article 8 ground alone.
4. That appeal came before First-tier Tribunal Judge Hutchinson on 17 December 2015 and in a decision promulgated just four days later Judge Hutchinson once again allowed the claimant's appeal on Article 8 ECHR grounds. The Secretary of State now appeals to the Upper Tribunal with the permission of Upper Tribunal Judge Eshun, granted 1 February 2016.
Grounds of Appeal
5. At the hearing Mr Matthews accepted that the grounds of appeal in support of the application for permission to appeal were broad and general in nature and sought to draw them together into the following two points:
(i) On the evidence available, and conclusions of primary fact reached thereon, the First-tier Tribunal's decision to allow the appeal was irrational;
(ii) When coming to its conclusion the First-tier Tribunal left out of account two material matters, namely; (i) the process and procedure by which families are removed from the United Kingdom and (ii) the nature and procedure of the Assisted Voluntary Return Scheme, which at all times was available to the claimant.
Discussion and Decision
6. In relation to the former of the two grounds Mr Matthews accepted that the First-tier Tribunal had properly directed itself in law and had come to conclusions of primary fact which were open to it.
7. He observed, however, that the Tribunal had found that:
(iii) The claimant was not a witness of truth [paragraph 25], and in particular it had rejected the truth of the claimant's assertion that her child had not had any contact with the child's father.
(iv) ID has a father with whom he has some contact and whom he wishes to remain in contact with [paragraph 27].
(v) The claimant has family in Nigeria. There is no reason why she could not return to Nigeria and resume contact therewith.
(vi) The claimant's mental health difficulties have improved and that there is no adequate information to support a finding that she could not access treatment in Nigeria, if such were required.
8. It is prudent at this stage to identify the following further findings of the First-tier Tribunal:
(vii) The appellant has a predisposition to depression and mental health difficulties;
(viii) A further deterioration in her mental health cannot be ruled out if she is returned to Nigeria;
(ix) ID had particular instability in his early life and this had a deleterious effect on his emotional health; there has, though, been a positive effect brought about by the recent years of stability [paragraph 36].
9. At paragraph 46 onwards the Tribunal concluded:
"This is a finely balanced decision given all that is in favour of the public interest as considered above, but for reasons primarily related to the current mental health of the appellant and crucially how that impacts on [ID] I am not satisfied that removal would currently be proportionate and I find that the current circumstances outweigh the public interest considerations and are sufficiently compelling to warrant a grant of leave under Article 8. However it may well be that, given the increasing maturity of [ID] and for example the current lack of any need for recourse to mental health provision for him personally, that this is unlikely to remain the position in the longer term; as the appellant's mental health and that of her son continues to stabilise it is anticipated that the emotional wellbeing of [ID] will be less directly linked to that of his mother. Any further evidence in relation to any relationship that [ID] may have or be in a position to develop with his father would also tip the balance in favour of removal. This is a case where further reports including mental health reports may be required in the future, including it is hoped a report obtained by the Home Office. ?"
10. Looking at the FtT's decision as a whole, in my conclusion it cannot be said that its conclusion is irrational; albeit it is not one that I would have reached on the same evidence. Irrationality is a high threshold to overcome and this is a case in which in my view there were two rational answers to the question of whether the appellant's removal would breach Article 8 ECHR. It is not said that the FtT failed to take anything material into account, save for those features I deal with below, or that it took into account irrelevant matters. Ultimately, this ground expresses no more than disagreement with the FtT's conclusion.
11. Turning to the second ground, ordinarily an assertion that a Tribunal had left out of account material matters would foreshadow any conclusion as to whether that Tribunal's decision was irrational. However, in this case that is not so because, as Mr Matthews accepted, what underpins his submission is a requirement that the FtT should have, but did not, take judicial notice of the inner workings of the Assisted Voluntary Return Scheme and/or the mechanism for removing families as a whole from the United Kingdom. I do not accept that a Tribunal can take judicial notice of such measures. These are matters for the Secretary of State to produce evidence on if she wishes to rely upon them. Mr Matthews accepts that there was no such evidence before the First-tier Tribunal; indeed, the submission was not even made to the First-tier Tribunal that the existence of either the aforementioned removal procedures would materially impact on the consideration of the issue of proportionality. For this reason, I conclude that the second ground is misconceived.
12. For all the reasons set out above I reject the Secretary of State's submission that the First-tier Tribunal's decision contains an error of law capable of affecting the outcome of the appeal. The First-tier Tribunal's decision therefore remains standing.
Notice of Decision

The decision of the First-tier Tribunal does not contain an error of law capable of affecting the outcome of the appeal and it is to remain standing.

Signed:

Upper Tribunal Judge O'Connor
2 August 2016