Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09590/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On Wednesday 10 August 2016
On Wednesday 17 August 2016

Before

UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL JUDGE HILL

Between

MS JESSICA [A]
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Emezie, solicitor, Dylan Conrad Kreolle
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-tier Tribunal. There is no good reason to make an anonymity direction in this case.

DECISION AND REASONS

Background

1. The Appellant appeals against a decision of First-Tier Tribunal Judge Devittie promulgated on 21 June 2016 ("the Decision") dismissing her appeal against the Respondent's decision to refuse her asylum and human rights claims. Permission to appeal the Decision was granted on 20 June 2016 by First-tier Tribunal Judge Grant-Hutchison on two grounds. Those were that the Judge had misdirected himself by failing to consider and make any findings whether the Appellant's child is an EU citizen based on his father's asserted nationality and whether the Judge had failed to take into account section 117 Nationality, Immigration and Asylum Act 2002 ("section 117B") when considering Article 8 ECHR. The matter comes before us to determine whether the Decision involved the making of a material error of law and, if we so find, to re-make the decision.

2. The Appellant is a national of Nigeria. She came to the UK as a student on 15 August 2013 and immediately before the expiry of her leave, on 15 January 2015 claimed asylum. The factual basis for the first of the grounds is that she has a child (L) born in the UK on [ ] 2014. The Appellant says that L's father is Romanian. That is supported by L's birth certificate. However, the nationality of L's father is otherwise not demonstrated by any other documentary evidence. There is no evidence either that L is himself to be treated as a national of Romania. The Appellant is no longer in a relationship with L's father and she has not seen him since May 2015.

3. The Appellant's asylum claim was based on risk due to her son's mixed race and the risk to them both of returning to an area of Nigeria where Boko Haram operates. The Judge found that claim to be unsupported by the background evidence and that, in any event, it would not be unduly harsh for the Appellant and her son to relocate to another part of Nigeria if they faced problems on that account in her home area. The appeal was dismissed on asylum grounds and permission was not granted in relation to that claim. We need say no more about it.

4. The way in which Mr Emezie formulated the case before us is on the basis that L's father is said by the Appellant to be Romanian and that this is therefore relevant to a claim under the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations") and is also a relevant factor in the assessment of proportionality under Article 8 ECHR.

5. We start by considering the claim that the Appellant and her son could succeed under the EEA Regulations. It is common ground that the Judge did not consider this claim. It is also right to point out that the Respondent did consider this possibility but rejected it firstly because it was not accepted that there was evidence that L is a Romanian citizen and secondly because even if that were accepted there was no evidence that the Appellant had procured sickness insurance to cover her and her son's stay in the UK.

6. We asked Mr Emezie to point us to the grounds of appeal which took issue with the Respondent's decision on this basis. He emphasised that his firm was not responsible for those grounds but said that paragraph [19] of the grounds was sufficiently widely drafted to amount to a challenge on this basis. That document is referred to also as a "statement of additional grounds" which we understand to mean that it was intended by the Appellant's previous advisers to be also a response to the one-stop notice served on the Appellant. Paragraph [19] reads as follows:-

"Moreover the Respondent has failed to consider the family life of the Appellant and her child in the EU in accordance with Article 8 of the European Convention on Human Rights?"

7. We accept that the inclusion of the words "in the EU" might be capable of drawing attention to the fact that the Appellant's child might qualify for European citizenship due to his father's nationality. However, that would depend how the case was developed. We therefore consider that sentence in the context in which it is developed in the grounds.

8. That paragraph continues by reference to the "Razgar" test. The application of that test to the facts of this case is set out in the remainder of [19] as follows:-

"1. Is there a family or private life?
Our client has been present in the UK for over 2 years. She has made the UK her ordinary place of residence and has a child here. Our client has developed strong ties with the United Kingdom with her son and with the friends she has made here. We remind the Secretary of State that the threshold for engagement of Article 8 is not an especially high one as stated in AG (Eritrea) v SSHD [2007] EWCA Civ 801. Accordingly, we submit that our client meets this threshold and that she has established a significant private life in the UK.
2. Will removal interfere with the family and/or private life?
We submit that removal would have a severe and adverse effect on our client's private life. Our client's child and friends are present in the UK. Our client would not be able to continue these relationships in any meaningful manner if she were to be removed from the United Kingdom.
We therefore submit that the removal of our client would greatly interfere with the strong private life she has established as she would be deprived of the ties he [sic] has made in the UK and that her removal would end the future enjoyment of our client's private life in the UK.
3. Is any interference with the family life in accordance with the law?
We submit that removal of our client would interfere with her family private life to such an extent that the rights guaranteed under Article 8 of the ECHR would be breached.
We submit that any interference to our client's family and private life will be significant, disproportionate and inconsistent with the UK's obligation under the ECHR. It would therefore not be in accordance with the law. Furthermore, it is submitted that removal would also be contrary to current case law and UKVI policy.
4. Is the interference in pursuit of one of the permissible aims set out under Article 8(2)
We seek to rely on the case of JO (Uganda) and JT (Ivory Coast) v SSHD [2010] EWCA Civ 10 in which Lord Justice Richards discussed the distinction between the aims for deportation cases and ordinary removal cases. It was held at paragraph 29 that in ordinary removal cases the aim to be pursued would be the maintenance of immigration control.
Accordingly we wish to refer the SSHD to the case of LD (Article 8 - best interests of child) Zimbabwe [2010] UKUT 278 (IAC) in which the Upper Tribunal emphasised in paragraph 17 that immigration control is not a legitimate end in itself.
5. Is the interference proportionate to the permissible aim?
We further remind the Secretary of State that the enquiry into proportionality is about whether or not the decision to remove is reasonable. We refer you to the case of VW Uganda AB Somalia v Secretary of State for the Home Department [2009] EWCA Civ 5 in which Lord Justice Sedley states that the inquiry into proportionality is not a search for an insurmountable obstacle but it is rather a balanced judgement of what can reasonably be expected in light of all the material facts (paragraph 19)
We therefore submit that a proper consideration of the lawful approach to the interpretation of Article 8 of the ECHR, as set out in the jurisprudence, indicates that the Appellant's ties with UK must necessarily have become strong over the last 20 years and as such, her removal from the UK would constitute a breach of Article 8 of the ECHR."

We pause to observe that the last part of that last sentence appears to bear no relation to this case since, of course, the Appellant has been in the UK for only three years and her son is now aged two.

9. Read in the context of [19] of the grounds of appeal as a whole, we have no hesitation in finding that this does not constitute a ground based on any asserted entitlement to European citizenship by the Appellant's son. The Appellant was legally represented in this appeal. The Respondent flagged up in her decision letter the issue whether the Appellant's son might be Romanian (or French). The grounds of appeal are also said to be a statement of additional grounds. The Appellant had not made an application under the EEA Regulations. However, this was her opportunity to raise the issue if she wished to do so. The omission is therefore either an oversight by her previous advisers or a deliberate decision not to take the point. We think it quite likely that it is the latter since, as we have already observed, there is a lack of evidence either as to the nationality of L's father or as to the impact of that on L even if his father is Romanian (or French). There was no evidence before the Judge for example that a child born of a Romanian father outside Romania is entitled to citizenship in Romania (and similarly if he is French). Even if L would thereby be entitled to citizenship of either country, there is no evidence to show whether that is an automatic entitlement or whether an application is required. If the latter, no doubt the Romanian or French authorities would require to be satisfied of the nationality of L's father. It may be that the Appellant's inability to access that evidence is the reason that no approach has been made to those authorities to obtain Romanian or French nationality for L. We have no way of knowing. However, whatever the reason, the fact remains that this is not the way in which we understand the case to have been put before the First-tier Tribunal Judge. This was not a point which the Judge was bound to take of his own volition. As we have already observed, the Appellant was legally represented and the Judge may well have thought, as we have already indicated, that it was a deliberate decision not to pursue a case on this basis due to the lack of evidence.

10. To a large extent, that disposes also of the issue in relation to section 117B. We do not know what was intended by Judge Grant-Hutchison when granting permission on the second ground. The way that part of the case was argued in the grounds of appeal against the Decision by the Appellant's current solicitors refers in this regard to the case of Dube (s117A-117D) 2015 UKUT 90 (IAC). Although this is not the way in which Mr Emezie's submissions were developed, we consider this given that it was the way in which the grounds seeking permission were formulated and therefore the basis on which permission was granted. In relation to those grounds, it is not clear to us whether the Appellant relies on that case as authority for the proposition that the Tribunal has to have regard to section 117 or for the proposition that having regard to section 117 does not obviate the need to consider Article 8 applying the Razgar test. We therefore consider the Decision in relation to both.

11. It is true that the Decision does not refer expressly to section 117. However, as Mr Melvin pointed out, there is nothing put forward which is relevant to section 117B. The Judge clearly had to have regard to the maintenance of immigration control as being in the public interest. He did so ([10]). The Appellant speaks English and she does not appear to have had recourse to public funds whilst in the UK. However, as noted in AM (s117B) (Malawi) UKUT 0260 (IAC) those factors are neutral. Her and L's private lives were formed at a time when they were in the UK with precarious status. The Appellant came here as a student and therefore had the expectation that she would have to leave at the end of her studies. The failure by the Judge to cite section 117B expressly is therefore not an error of law. He had regard to the key factors at [10]. There was no need to do more on the facts of this particular case.

12. We deal then with the issue whether the Judge has considered the Article 8 claim applying the Razgar test. Again, whilst accepting that the Judge has not expressly referred to that test or set it out, we consider that this is the basis on which the Judge approached the claim at [8] to [10] of the Decision. The Judge has considered L's best interests as a primary consideration as he was bound to do ([8]). He notes that L is very young. As such, he finds that removal would not disrupt his family and private life in the UK which is formed with his mother since his mother would be returning with him. He accepts that there is an overlap as to where L's best interests lie with the question of whether he and his mother would be at risk in the Appellant's home area or whether it would be unduly harsh for the Appellant and L to relocate elsewhere in Nigeria. Noting his previous findings, he does not accept that they would be at risk or that they could not reasonably be expected to relocate. He notes that L has no contact with his father. There would not therefore be a disruption to that relationship. On that basis, the Judge finds at [9] that L's best interests would not be adversely affected by removal. He goes on then to weigh the public interest into the balance and on that basis finds there to be no breach of the Appellant's and L's human rights. Although the assessment is brief, we can discern no error of law in the Judge's approach.

13. The way in which the case was developed by Mr Emezie in relation to this ground at the hearing however largely depended on the first ground. He submitted that the Judge had failed to consider section 117B(6). That submission is unsustainable. L is not on any view a British citizen nor has he been in the UK for seven years. Mr Emezie sought to persuade us that section 117B(6) unlawfully discriminates against EEA children who are not covered by its provisions. However, firstly, section 117B is primary legislation and we have to apply it as it is drafted. Secondly, in any event, the reason why section 117B(6) does not refer to EEA children is that it has no need to do so. Nationals of the European Union which includes children who are EU nationals benefit from the right of free movement and have no need of the provisions relating to the grant of leave to remain.

14. Section 117B(6) can add nothing to ground one. There is therefore no error of law in the Decision on this ground. If the Appellant had made a case based on L having European citizenship, the Judge would have been bound to consider whether L was entitled to that citizenship and, if so satisfied and the Appellant could meet the other requirements of the EEA Regulations in that regard then she and L would be entitled to remain. As we have already observed, however, that is not the way in which she put her case. Although her witness statement refers to L's father being Romanian ([10] of her statement) that is only by way of background. It is said only that he was born in Romania but has lived in the UK since 2000/2001. It is not said that this factor is of any importance to the position of the Appellant or L. Again, we remind ourselves that the Appellant was legally represented and would have had assistance in the preparation of her statement. If this were a factor considered to be of any importance, that would have been highlighted in her statement. It was not.

15. Finally, for completeness, we make it clear that, even if we had found that the Judge had failed to make findings in relation to the potential entitlement to European nationality of L, we would not have found the error to be material. Mr Emezie confirmed that the Appellant did not seek to adduce any further evidence on this issue. Accordingly, all we have before us (and all that the Judge had before him) is the following:-
(1) Reference at Q41 of the Appellant's asylum interview record when asked about L's father's nationality that "He said to me that he is a Romanian from France but I don't know if he is Romanian or he is French";
(2) Reference at Q139 to advice given to the Appellant to ask L's father to attend to make a passport application for L which L's father refused to do (which the Appellant says is what led her to make the asylum claim when she did);
(3) The limited reference to the EU at [19] to which we refer at [6] above;
(4) A statement from the Appellant making brief mention that L's father was born in Romania (see [14] above);
(5) A brief mention in the chronology prepared for the hearing before Judge Devittie that the father is a "Romanian and EU national";
(6) The child's birth certificate referring to his father's place of birth as Romania.

16. Based on the above, we would have no hesitation in finding that the Appellant cannot show that L is entitled to Romanian nationality. If there were any error of law, therefore, it would not be material. We reject Mr Emezie's submission based on the case of Veerabudren v Secretary of State for the Home Department [2015] EWHC 500 (Admin) that it is not open to us to find that an error is not material. The case on which Mr Emezie relies is a judicial review. We have no difficulty in understanding the Deputy Judge's view in that case that it was not open to the Court to find that an error of law in the decision of the Secretary of State under review was immaterial. The power of the Court in that instance is one of review and it would be for the Secretary of State to re-take the decision under challenge. However, this is a statutory appeal. Our power is not so limited. It is to set aside a decision if there is an error of law and re-make the decision or remit it. Clearly, if the error of law is immaterial, there would be little point in setting aside the decision only to re-make it in the same way.

17. In conclusion, therefore, we are satisfied that there is no error of law in the Decision on either of the two grounds in relation to which permission was granted for the reasons we have given. Even if we were wrong about that, we find that any error is not material as the Appellant cannot show that L is entitled to EU citizenship. If she is able to do so in the future, it is of course open to her to make an application to the Respondent on that basis.

DECISION
The First-tier Tribunal Decision did not involve the making of a material error on a point of law. We therefore uphold the First-tier Tribunal Decision promulgated on 21 June 2016 with the consequence that the Appellant's appeal is dismissed.

Signed Date 16 August 2016
Upper Tribunal Judge Smith