Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/07014/2013
AA/07015/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Sent
On 2 December 2013
On 27 December 2013

Before

DEPUTY UPPER TRIBUNAL JUDGE E B GRANT

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

[C U O]
[A O]
ANONYMITY DIRECTION MADE
Respondent

Representation:
For the Appellant: Mr T. Wilding Senior Home Office Presenting Officer.
For the Respondent: Ms C. Record of Counsel.

DETERMINATION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department (hereinafter referred to as SSHD) against a determination of First-tier Tribunal Judge Abebrese promulgated on 4 September 2013. Ms [CUO] and succeeded in her appeal against removal on Article 8 grounds. Her son Master [AO]’s appeal is a dependent upon the outcome of her appeal. Her asylum appeal was dismissed and those findings are unchallenged.
2. Permission to appeal was granted by First-tier Tribunal Judge Parkes in the following terms:
“1) The respondent seeks permission to appeal against a decision of FTTJ Abebrese promulgated on 4 September 2013 whereby the appellant’s appeal against the Secretary of State’s decision was allowed. The application is in time and is admitted. 2) The appellant appealed against refusal of asylum. The appeal was dismissed on asylum and humanitarian protection but allowed under Article 8. The judge found that the appellant’s relationship with her partner was genuine and that with a settled life in the UK removal would be disproportionate. 3) The grounds argue that the Judge erred in the approach taken in failing to consider the appellant’s circumstances under the Immigration Rules and did not consider the public interest as now set out. 4) The reasoning in the determination makes no reference to the Immigration Rules when clearly that should have been considered first. The reasoning applied is brief and there is no examination of why it would be unreasonable for the appellant and her son to return to Nigeria when there was on the facts found no impediment, and to apply in the usual way. The grounds are arguable and permission is granted.”
3. The Judge’s findings are contained in two very brief paragraphs at 5 and 6 of the determination and those relating to Article 8 are at paragraph 6. In it he found that the first appellant is in a genuine and loving relationship with Mr Odili who intended to marry the appellant once she had divorced her husband. This had been difficult because the appellant’s husband was intent upon prolonging the marriage. Mr Odili was seeking a divorce from his wife. “They spend the majority of their time together and he is often at her house. I found it credible that he has become the father figure in the second appellant’s life” He went on to say Mr Odili pays for the outgoings on the house and takes care of the first and second appellant’s needs. “I find Article 8 is engaged and that there would be severe consequences if the appellants were removed from this country. The removal would also be disproportionate because both appellants are settled in this country and the second appellant may on balance find it difficult to adjust to life in Nigeria”.
4. The grounds submit that the Immigration Rules are a detailed expression of Government policy on controlling immigration and protecting the public. The Article 8 sections of the Immigration Rules reflect the Secretary of State’s view as to where the balance lies between the individual’s rights and the public interest. They reflect the broad principles set out in Strasbourg and domestic jurisprudence. Therefore when the Tribunal considers an individual appeal it should consider proportionality in the light of this clear expression of public policy; and the Secretary of State would expect the Courts to defer to her view, endorsed by parliament, on how, public policy considerations are weighed against individual family and private life rights, when assessing Article 8 in any case. The failure to do so means the decision the Tribunal made on Article 8 is incomplete and that it is also unsustainable.
5. The Judge has found the appellants’ removal would be disproportionate but has failed to identify any insurmountable obstacles to the appellant and her partner continuing family life in Nigeria. Insurmountable obstacles constitute serious difficulties which the applicant and her partner would face in continuing their family life outside the UK, and entail something that could not be overcome, even with a degree of hardship for one of more of the individuals concerned. It is not something that is merely unreasonable or undesirable.
6. The Immigration Rules specify that the existence of insurmountable obstacles to family life continuing outside the UK is a key factor in the proportionality assessment albeit not a determinative factor. The Rules require an assessment of whether removal is prevented by insurmountable obstacles rather than whether it is reasonable to expect the family to leave together.
7. Having heard submissions from both parties and having considered the grounds of appeal before me I find that the grounds are made out in full. I find that the Judge erred in law in failing to take into account and apply the Immigration Rules insofar as they indicate where the exercise of discretion should lie in Article 8 cases. Secondly he erred in law because he failed to give adequate reasons for his findings. I therefore find that the Judge’s findings with regard to Article 8 are unsustainable. Accordingly I find that the determination is fundamentally flawed and I set it aside.
8. The requirements of the Immigration Rules are set out in HC194. In relation to family life and leave to remain as a partner or child the requirements of the Rules are set out in Appendix FM which covers the requirements of suitability, eligibility and the financial requirements of the Immigration Rules. The requirements for leave to remain on Private Life grounds are set out in Paragraph 276ADE. Ms Record conceded that the appellants could not meet the requirements of the Immigration Rules and that the appeal fell to be considered outside of the Immigration Rules following MF (Article 8- new rules) Nigeria [2012] UKUT 00393 (IAC) at §40-44
[C O]
9. The appellant’s evidence is set out in three witness statements which are contained in the appellant’s bundle. The appellant grew up in Enugu. Her parents were civil servants. She has three brothers and three sisters. Two brothers live in Lagos and one lives in Kano. Two sisters live in Lagos and one lives in Erith, Kent in the United Kingdom.
10. The appellant married [C] Okafor in a customary marriage in February 1996. Their son was born in Lagos on 5 November 1997. The appellant left her husband in September 1999 because he was involved in drugs and had been arrested by a section of the Nigerian Police called the Milverton Police. He had been violent towards the appellant and she was frightened of him. She went on to study for a degree in linguistics and found employment with the Continental Trust Bank in Onitisha, Nigeria until she was made redundant in 2003. Then she worked part time in advertising in Enugu until she left Nigeria on 10 August 2005.
11. Meanwhile her husband had been sentenced in 1999 to 10 years’ imprisonment for drugs offences. When the criminal matters were being investigated the appellant was required to give the police a witness statement who were also interested in a large number of letters delivered to their flat.
12. In 2005 the appellant came to the United Kingdom for a holiday. She left her son with her mother. In the second week of her visit she was contacted by her mother who told her [C] had been released early from his prison sentence and was looking for her. The appellant’s family have tried to return to bride price to her husband but he refuses to accept it and in terms of customary law they are still married. He is unwilling to permit her a divorce.
13. The appellant’s mother decided that [C] was menacing and dangerous to the appellant so she did not return home to Nigeria as planned. She found work as an office cleaner.
14. Subsequently having kept her original Nigerian email address she began to receive threatening emails from [C]. He has discovered that the appellant is in the United Kingdom and has had a son born 23 June 2007. The appellant claims her second son will be at risk upon return from [C] due to the nature of the customary marriage. He has not threatened his own son in Nigeria because traditionally he cannot go against his first born child. The appellant has been threatened with kidnap and harm from [C]. She suspects [C] is paying a detective or a family member to keep him informed about the appellant’s whereabouts.
15. The appellant is in a relationship with [C] Odilli. They met when he lived in Enuga when they were both children. He supports the appellant and pays for her elder son’s school fees in Nigeria. He is married and not yet divorced. He has recently moved in with the appellant which has brought her stability, care and support for the appellant and her son. They want to stay together and get married one day.
16. The appellant is frightened of her husband. She gave evidence which helped to convict him. He wants to punish her for that and for her adultery. He has threatened to take her second son away from her. The Nigerian authorities will be unable to protect the appellant.
17. The appellant has suffered heartbreak during her relationship with [C] Odilli because she has suffered two miscarriages.
18. She has continued to receive threatening emails from [C] which she has adduced in her bundle of documents. She had not thought to change her email address so he cannot threaten her. Their son now lives with a friend of the appellant in Enugu which is in Eastern Nigeria.
19. The appellant confirmed that she had been arrested in May 2013 and it was the arrest which led her to make her asylum application.
20. The appellant confirmed that she is in contact with her siblings but that she could not live with one of her siblings in Lagos because [C] is living in Lagos and she and her son would be at risk from him. If she lives elsewhere he will be able to find her because he knows very bad people. He has said in one of the emails that he is coming for her and will get her. The appellant suspects a family member has told him that the appellant has a son in the United Kingdom. She does not think she can ever be free of him while he refuses to consent to a divorce. The appellant has adduced an email from her brother [CAO] who says “… we have tried so many times to return your dowry/bride price to your husband’s but to no avail. Each time I get there they say they wish to see you. My guess is that they don’t want to collect it from me. I don’t know when I will go there next.”
21. The expert report of Chigozie Christiana Udemezue is contained in the bundle. After reviewing and summarising Igbo customs regarding marriage and adultery, bride price and children she concludes: “In my firm opinion [CUO] would be facing grievous risk and threat if she returns to Nigeria. Her son [AO] will be taken away from her and made to live in a household he does not belong to which also would never really accept him fully and he would face a daily reminder of how he was born. I am of the opinion that this matter be treated beyond [CUO]’s application to stay in the UK but rather be viewed from the angle of ensuring that the future and quality of life of young and promising [AO] is not cut short and her own life saved from prematurely cut short by a husband who has vowed revenge”
22. The appellant has adduced emails from her husband in Nigeria. In one dated 21 February 2013 he says “You know you can’t come back to Nigeria because if you do I will make sure I kill you and your bastard son even the one in Nigeria”
23. In an email dated 17 May 2013 he says “I spent almost eight years in prison and this is how u pay me back? Well am out now and its time to take my revenge. You will suffer more than I have I promise…i didn’t want to kidnap you in the UK cos I risk being caught but here its very simple watch me”
24. In an email dated 11 June 2013 he says “You will die with that your child that I don’t know who told you born … within the next three day something terrible will happen to you, that I can assure you except you agree the various conditions I have given you”
25. In an email dated 2 August 2013 he says he has a friend acting as a friend to a friend of the appellant and he will start getting information about her and he has everything je needs to know about her family in Nigeria… and threatens to kill the appellant.
Mr C Odilli
26. Mr Odilli gave evidence in support of the appeal. He was born in the United Kingdom but his parents separated when he was an infant and he and his brother were placed in foster care. On a weekend access visit his father abducted the appellant and his brother and put them on a plane to Nigeria. He did not travel with them. Social services made two visits to Nigeria to try and retrieve the boys but were unable to do so. They were sent to relatives in Enuga. Periodically they tried to get British passports so they could return to the United Kingdom but their father would not give them any documents to show they were British. It was only when he died and a friend sent his effects to Mr Odilli that he found his father’s British passport and with this he and his brother were able to obtain British passports and returned to the United Kingdom. Mr Odilli spent 16 years trying to get back to the United Kingdom from Nigeria and has absolutely no intention of ever returning there to live even if the appellant is returned. He will not return to Nigeria with her. He has three children in the United Kingdom the eldest of whom is at university and the other two are teenagers living at home. He got his wife pregnant when he didn’t know her very well but he did the right thing and married her and gave their children a stable home life. His wife does not want a divorce. He is now 48 and for the first time in his life he has found personal happiness with the appellant and he does not want to lose her. He cannot contemplate her going back to Nigeria. He has met someone he loves and wants to spend the rest of his life with. He knew [C] in Engugu. He is a criminal and drug dealer and is known thug.
27. Mr Wilding submitted that the appellant cannot meet the requirements of the Immigration Rules. The parties entered into their relationship in the full knowledge that the appellant’s immigration status was precarious. There are no insurmountable obstacles to the family unit continuing in Nigeria. The appellant’s partner has maintained his own ties with Nigeria including two recent visits there. Reliance was placed by Mr Wilding upon Onkarsingh Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin) in which Sales J found that “the consequence, in my view, is that in the majority of precarious family life cases where removal is in question, where the Secretary of State’s officials conclude that the family member who is applying for leave to remain cannot satisfy the test in Section EX.1 (b) in the new rules, it is unlikely that there will be a good arguable case (let alone a case that is ultimately found to be established) that Article 8 would require leave to be granted outside the Rules”. This is the position here. The Secretary of State has indicated in the refusal letter that the appellant cannot meet the definition of partner under the Immigration Rules because she has not lived with Mr Odilli for two years and the refusal letter notes that she neither meets the requirements 276ADE or the exception Ex.1. Accordingly the decision of the Secretary of State is a proportionate one.
28. Ms Record confirmed the appeal was being argued outside of the Immigration Rules. She invited me to find that the relationship between the appellant and Mr Odilli was genuine and subsisting and that the evidence given by the appellant and Mr Odilli about their relationship is credible as Judge Abebrese has already found.
29. In carrying out the balancing exercise on proportionality the factors to be taken into account in the appellant’s favour are that Mr Odilli is a father figure in the child’s life. If the appellant returns to Nigeria, whatever redress she can seek through the family court in Nigeria to seek a divorce, her ex husband is a difficult man and would create difficulties. Even if she went back with the intention of seeking a divorce it was create terrible upheaval in the child’s life. He would lose a father figure for possibly two years before she could come back. The evidence before the Tribunal in the expert report is that when a woman goes on to remarry following a customary marriage without returning the bride price any child of the woman belongs to the former husband. This is a common practice amongst the Ibo tribe. Even if she goes to court in Nigeria she faces a huge legal battle ahead of her.
30. There are compassionate circumstances. She is still grieving for her miscarried children. Mr Odilli is present and settled in the United Kingdom and earns over £37,000 which means they can meet the financial requirements of the Immigration Rules even with his existing commitments to his wife and three children. Reliance was placed upon Zhang v SSHD [2013] EWHC 891 (Admin) in which Turner J found at §77 Conclusion on requirement (h)(i) I, therefore, come to the clear view that save in particular cases (such as those involving a poor immigration record – as in Ekinci v Secretary of State for the Home Department [2003] EWCA Civ 765 or where the engagement of Article 8 is very tenuous - as in R(Mdlovu) v Secretary of State for the Home Department [2008] EWHC 2089) it will be rare indeed that the immigration priorities of the state are such as to give rise to a proportionate answer to Article 8 rights to family life where requirement (h)(i) is engaged.
31. In summary the Chikwamba principle is still applicable and the appellant should not be required to return to Nigeria simply to make an application for entry clearance from there.
Decision
32. In considering the appellant’s appeal under Article 8 I must first of all make findings on one of the factors said to militate against the appellant’s removal with her son to Nigeria. That factor is risk upon return arising from threats allegedly made by her husband which she has received in various emails. In summary the appellant claims she is at risk of inhuman or degrading treatment, or death upon return to Nigeria on account of the claims in the emails she has supplied.
33. The respondent has considered the emails in the refusal letter but notes that despite the alleged threats the appellant received in Nigeria before she came to the United Kingdom she lived there for six years, completed a degree and worked without coming to any harm. The copies of the emails had been considered but they have emanated from several email addresses and there is nothing to show they are from the appellant’s husband. The respondent takes the view that the emails cannot be relied upon and no weight can be attached to them as evidence of the appellant’s claims.
34. I agree and concur with this reasoning and I am fortified in my conclusion that this reasoning is correct because of the content of the emails adduced in the appellant’s bundle before me. One threatens both children yet her son in Nigeria has been living in Enuga since she left and has not come to any harm. Another email threatens her siblings yet none have come to any harm in Nigeria despite her brother confirming that he has visited her husband’s family to try and return the bride price. In another the appellant’s husband says he served eight years in prison. Yet this claim is wholly inconsistent with the appellant’s claim that he was jailed in 1999 and was released in 2005 (six years in prison) whilst she was in the United Kingdom when her mother informed her he was looking for the appellant and she would not be safe if she returned to Nigeria. Another inconsistency in the appellant’s case is her claim her husband is a well connected drug dealer with criminal associates who can track her down and kill her yet in the six years she lived in Nigeria while he was allegedly in prison none of his associates tracked the appellant down and she was able to complete her education and pursue her career unhindered. One of the emails contains a claim by her husband that he paid for her schooling. This is incredible in the light of the appellant’s claims he was in prison when she completed her degree.
35. I have concluded that the content of the emails is not credible and that no reliance can be placed upon them as evidence of genuine threats from the appellant’s husband. I find that they have been fabricated to support her belated claim for asylum and human rights protection after she had been apprehended by UKBA. I find that her educational and work history prior to her journey to the United Kingdom is inconsistent with a woman who was receiving threats of revenge from her husband’s family as claimed before she departed.
36. The appellant was unharmed in Nigeria between 1999 and 2005, her son was unharmed and remains unharmed, her siblings have been unharmed and remain unharmed. I find as a matter of fact that this is because the appellant has not been threatened by her husband as alleged or at all. The significant discrepancy in the email regarding the length of time allegedly served in prison by the appellant’s husband and the appellant’s claims to the respondent and to the tribunal about when he was allegedly convicted and allegedly released have led me to conclude that no weight can be placed upon her claims that her husband was a criminal who was jailed as alleged. There is no credible evidence that the appellant acted as a witness for the prosecution of her husband. She has not adduced any credible evidence to the respondent or the Tribunal in the form of a copy of that witness statement or confirmation from the Nigerian authorities that she was a witness for the prosecution. I find that the appellant has not established on the burden of proof required of her that her husband was imprisoned as claimed nor that she acted as a witness for the prosecution and she has not established that she has been the recipient of any genuine threats from him.
37. Accordingly I attach little weight to her claims that she married [C] in a customary marriage or that he will seek her second son upon return to Nigeria. Whilst this may accord with Igbo custom as set out by the expert, her claims that her husband will seek to follow Igbo custom is demonstrably false in the light of the expert report which states that in Igbo tradition children are taken from their mothers and given to their father upon separation or divorce. Yet the eldest son of the appellant has not been taken by his father or given to his father. The appellant attempted to explain this away by claiming that a man will not go against his first born and will not go against his own son. Her evidence is contradicted by the expert report. I find as a matter of fact that the appellant’s son is unharmed because his father has no interest in following Igbo tradition and taking the appellant’s children as alleged or at all. The expert report proceeds on the assumption that the appellant’s husband will act in accordance with Igbo tradition when he has not done so with his son in Nigeria. The expert makes no mention of the fact that the appellant’s eldest son is not living with his father and continuing his education in Nigeria without any interference from his father. Consequently I find the expert report is of little assistance to the appellant on the facts as I have found them.
38. In the light of my findings of fact upon the appellant’s claimed fear upon return I find that she has not shown there is a real risk of inhuman or degrading treatment to the appellant or her son upon return to Nigeria. Insofar as it is necessary for me to do so I find that the appellant has not established there will be any breach of Articles 2 or 3 if she is returned to Nigeria.
Best Interests of [AO]
39. It has been submitted that the best interest of [AO] require him to remain in the United Kingdom with his mother and not undergo the distress and disruption and upheaval caused by separation from Mr Odilli.
40. There is no evidence before the Tribunal about [AO]’s best interests. Beyond a claim that he views Mr Odilli as a father figure there is nothing to support the claim that his best interest require his continued presence in the United Kingdom either from the school he attends or other child welfare professionals. There is a complete paucity of evidence before the Tribunal about [AO]’s best interests.
41. In considering the best interests of [AO] I find it is in his best interests to remain with his mother. I find that he is young and can be expected to adapt to life in Nigeria with his mother and the extended family there. There is no credible evidence before me that it is unreasonable to expect [AO] who is a national of Nigeria to return to Nigeria with his mother. In coming to this conclusion I have taken into account the evidence that Mr Odilli has moved in with the appellant and [AO]. However he has moved in a matter of weeks ago having lived with his wife and children throughout the affair with the appellant. I find that he can be regarded as someone who has had only a transient and temporary presence in the life of [AO] given the clandestine nature of the relationship and Mr Odilli’s choice to remain with his wife and children throughout until shortly before the hearing of this appeal. I find is has not been shown that it is in [AO]’s best interests to live in the same household as Mr Odilli.
Article 8
42. The appellant cannot meet the requirements of the Immigration Rules for leave to remain on the basis of family or private life. I have considered Article 8 outside of the Immigration Rules.
43. I have heard evidence from both parties about their relationship and I have evidence that the appellant has miscarried twice. I find that the appellant has shown that the relationship with Mr Odilli is genuine and subsisting.
44. I find that the appellant and [AO] have established a private and family life in the United Kingdom. I find that the respondent’s decision will have grave consequences in respect of their right to respect for their private and family life in the United Kingdom. I find that Article 8 is engaged.
45. I find that the respondent’s decision is lawful and in the interests of maintaining effective immigration control. I will now consider whether the respondent’s decision is proportionate to the legitimate aim of effective immigration control.
46. Counsel for the appellant has set out the factors in favour of the appellant which include claims her ex husband is difficult and will create difficulties and that Igbo practice on separation and divorce is a threat to [AO]. I have not taken these matters into account in the balancing exercise because I have found that the appellant is not at risk from her husband as alleged or at all. The factors in favour of the appellant (in no particular order) are:
She has lived and worked in the United Kingdom since 2005
[AO] has been born and brought up in the United Kingdom.
[AO] is at school in the United Kingdom.
The appellant and [AO] live with Mr Odilli as a family unit.
The appellant has recently suffered two miscarriages and is still grieving for her lost children.
Mr Odilli’s income can meet the financial requirements of the Immigration Rules.
The ratio in Chikwamba indicates that the outcome on proportionality should be in the appellant’s favour.
Reliance is placed upon Zhang v SSHD [2013] EWHC 891 (Admin).
47. The factors in favour of the respondent (in no particular order) are:
The appellant and sponsor do not meet the requirements of the Immigration Rules which indicate where the exercise of discretion should lie.
The appellant failed to claim asylum upon entry to the United Kingdom.
The appellant failed to claim asylum until after she had been apprehended by the respondent in May 2013.
The appellant and her son are nationals of Nigeria.
The appellant has another son in Nigeria.
There is no risk to the appellant from her husband as alleged or at all.
There is no risk to [AO] from the appellant’s husband as alleged or at all.
Counselling is available in Nigeria to help the appellant cope with the trauma of her miscarriages.
The best interests of [AO] are to remain with his mother.
Mr Odilli is willing to support an application for entry clearance made from Nigeria.
Weight should be given to the public interest in maintaining effective immigration control.
Reliance is placed upon Onkarsingh Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin).
48. I have taken into account the guidance of the Court of Appeal in Chikwamba, and the authorities argued before me by both parties. Chikwamba was decided before the new Immigration Rules regarding Article 8 came into force. Mr Odilli is married and has only recently moved in with the appellant. Their relationship is of relatively short duration and has been formed at a time when the appellant’s status in the United Kingdom has been precarious and whilst Mr Odilli has maintained his marriage to his wife.
49. In Zhang the court was concerned with migrants who were lawfully in the United Kingdom and sought to change their visa status when the Immigration Rules did not permit a switch and the applications had to be made out of country. The court considered Chikwamba and found:
“The reason why a valid distinction is drawn between cases where an applicant faces permanent removal and those where the length of the removal is contingent upon the success of an out of country application was articulated by Elias L.J. in Hayat (Nature of Chikwamba principle) Pakistan [2012] Civ 1054 at para. 18:
“It may at first blush seem odd that Article 8 rights may be infringed by an unjustified insistence that the applicant should return home to make the application, even though a subsequent decision to refuse the application on the merits will not. The reason is that once there is an interference with family or private life, the decision maker must justify that interference. Where what is relied upon is an insistence on complying with formal procedures that may be insufficient to justify even a temporary disruption to family life. By contrast, a full consideration of the merits may readily identify features which justify a refusal to grant leave to remain.”
In my view, this paragraph effectively disposes of the Secretary of State’s argument that allowing applicants to switch visa status “in country” would lead to a blurring of the distinction between the two categories involved. This is just the sort of formal procedural factor that Elias L.J. was referring to. It is pertinent to observe that counsel for the Secretary of State conceded that the assessment and determination of the merits of the claimant’s application would, as a matter of substance, be identical regardless of where the claimant was at the time. The only difference would be geographical”.
50. On the facts of the applications before the court Turner J found that the application of a blanket requirement to leave the country imposed by paragraph 319C(h)(i) of the immigration rules was unsustainable. It was not consistent with the ratio of the decision in Chikwamba. In considering the Article 8 appeal he found that the claimant’s article 8 rights were engaged, that she was in a loving marriage and had no real option but to endure separation from her husband for about two months. She had an impeccable immigration record and she and her husband were very likely to make a viable contribution to the economic wellbeing of the UK. Lord Brown identified the justifiable policy to aim to deter undesirable persons from entering the UK unlawfully and then enjoying the luxury of making an in country application. In Zhang the policy considerations lay in the opposite direction.
51. The appellant before me is not in the same position as the appellant in Zhang. Whilst she entered the United Kingdom lawfully using a visitor visa she failed to return to Nigeria and lived and worked unlawfully in the United Kingdom and would have continued to do so had she not been apprehended by UKBA in May 2013. Thereafter she made a demonstrably false claim for asylum and human rights protection. She entered into a relationship while her immigration status was precarious. The relationship is of relatively short duration. The appellant is not married to Mr Odilli. Although the relationship is currently subsisting there is no evidence before me that it will endure if the appellant returns to Nigeria. Until recently Mr Odilli has maintained his marriage to his wife and has been living with her and his children. The appellant’s immigration history is poor and her actions have not contributed to the economic wellbeing of the United Kingdom. Not only has she worked illegally but she has availed herself of NHS treatment to which she was not entitled as an illegal immigrant living and working unlawfully in the United Kingdom. She cannot meet the requirements of the Immigration Rules and cannot meet exception EX.1. In carrying out the balancing exercise required of me I find the weight to be given to public policy considerations is substantial and outweighs the weight to be given to the factors in favour of the appellant and her son remaining in the United Kingdom. I find the respondent’s decision is proportionate to the legitimate aim to be achieved. I uphold the respondent’s decision.

Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision.
I re-make the Article 8 decision in the appeal by dismissing it.

Anonymity
The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

Signed
13 December 2013

Deputy Judge of the Upper Tribunal