Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/07072/2015

THE IMMIGRATION ACTS

Heard in Manchester
Decision & Reasons Promulgated
On 28th November, 2016
On 07th December, 2016

Before

Upper Tribunal Judge Chalkley

Between

N C O
(ANONYMITY DIRECTION made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms A Faryl, of Counsel
For the Respondent: Mr McVeety, a Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Nigeria born on 15th December, 1986. She entered the United Kingdom on 26th June, 2007 and was given leave to enter until 31st October, 2010. On 20th October that year she made application to renew her visa and that was refused on 13th November, 2010. On 15th November, 2011 she applied for an EEA residence card and that application was refused on 22nd December, 2011. A second application was made on 19th January, 2012 and refused on 4th July, 2012 and a third application made on 18th October, 2012 and refused on 11th June, 2013. On 14th October, 2014 the appellant made a claim for asylum. She appeals against the decision of the respondent, taken on 2nd April, 2015, to refuse to grant her claim and to seek to remove her by way of directions under paragraphs 8 to 10 of Schedule 2 of the 1971 Immigration Act.

2. While in the United Kingdom the appellant met and married a man, Mr Fortune Jean Joel Losse, described as being a Nigerian Muslim and also a French national. They married on 4th April, 2011 by proxy, on 27th May, 2012, the appellant's daughter Audrey Chimdinma Okpala Losse was born. The appellant fears that on return to Nigeria inter alia her daughter will be subjected to female genital mutilation (FGM).

3. The appellant appealed the decision of the Secretary of State and her appeal was heard by the First-tier Tribunal on 18th January, 2016 by First-tier Tribunal Judge A K Simpson. The judge found herself satisfied on the basis of an expert report that there is a real risk that the appellant's daughter would be subjected to FGM by members of her extended maternal family in the event that she were to return to Nigeria. That is a finding at paragraph 28 of the judge's determination.

4. Unfortunately, the judge then went on to conflate her consideration of the appellant's Article 8 human rights appeal with the decision in the case of Zambrano and appears to have proceeded on the basis that she believed that the appellant's daughter was entitled to French nationality and on that basis could not be removed from the European Union. She therefore allowed the appellant's appeal on human rights grounds. The respondent was dissatisfied with that decision and sought permission to appeal. In granting leave First-tier Tribunal Judge Holmes said this:

"There appears to be little merit in the first ground, which appears to be no more than a disagreement with the judge's finding that the appellant had been subjected to FGM. However the decision to dismiss the appeal on asylum and Article 3 grounds, but to allow it on Article 8 grounds is arguably confused. Previous decisions of the Tribunal have found that the appellant's daughter was entitled to French citizenship (although no attempt appears yet to have been made to formalise that), and, that the appellant might be entitled to a derivative right of residence as her daughter's sole carer. No EEA Regulation application however has yet been made. Removal of the appellant and her daughter together would not affect their "family life" together, and thus would not engage Article 8. If there was some other aspect of the evidence that gave rise to "private life" of the requisite nature and strength to engage Article 8 then arguably it was not identified. If the judge's real conclusion was that the appellant's daughter was at risk of harm from members of the general population, either of FGM or as an autistic child who may be perceived to be a witch, then that called for an assessment of whether the appellant herself was at risk of serious harm and a breach of her Article 3 rights in seeking to protect her child. "

Mr McVeety suggested that the judge had erred by assuming that the appellant's child is entitled to French nationality and by allowing the appeal under Article 8, without dealing with the questions of internal relocation and sufficiency of protection. Counsel agreed that the judge had conflated Article 8 and the question of Zambrano.

5. I have concluded that there are, as agreed by the representatives, errors of law in the determination such that it cannot stand. For the avoidance of doubt however I preserve the finding at paragraph 28 of the determination that there is a real risk that the appellant's daughter would be subjected to FGM by members of her maternal family in the event that she were to be sent to Nigeria, but otherwise set aside the decision. The question of internal flight alternative and sufficiency of protection do however need to be considered. As far as I am aware the appellant has not sought and obtained confirmation from the French authorities that her daughter is a French national and until such time as that happens, the sole issues for the Tribunal are alternative relocation in Nigeria to a safe area and sufficiency of protection. I remit the appeal to the First-tier Tribunal, no interpreter is allowed, two hours should be allowed for the hearing of the appeal.

Richard Chalkley
Richard Chalkley, a Judge of the Upper Tribunal.