AA/11394/2015 & Ors.

• Status of case: Unreported
• Hearing date: 9 Nov 2016
• Promulgation date: 29 Nov 2016
• Publication date: 9 Oct 2020
• Last updated on: 9 Oct 2020

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/11394/2015
AA/11397/2015
AA/11401/2015
AA/11403/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 9 November 2016
On 29 November 2016



Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON


Between

VR
KO
RO
RO
(ANONYMITY DIRECTION MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellants: Ms M Knorr, Counsel, instructed by Southwark Law Centre
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer


DECISION AND REASONS

Background
1. The first appellant in this case, Ms VR, is a citizen of Nigeria and the second to fourth appellants are her children, two daughters and a son, who are minors. The appellants appealed against a decision, made by the respondent on 7 August 2013, to refuse to grant asylum. In a decision promulgated on 25 July 2016 Judge of the First-tier Tribunal Herlihy dismissed the appellants' appeal on asylum grounds, on humanitarian protection grounds and under the Immigration Rules. Judge Herlihy allowed the appellants' appeal on human rights grounds, under Article 8 outside the Immigration Rules.
2. I refer to my Decision and Reasons, appended to this decision, heard at Field House on 5 October 2016 and promulgated on 20 October 2016. In that decision I dismissed the respondent's appeal against Judge Herlihy's Article 8 decision for the reasons set out. I also set aside Judge Herlihy's decision in relation to the appellant's appeal on asylum, humanitarian protection and human rights grounds Article 3.
The Hearing
3. That decision comes before me to be remade. At the hearing on 9 November Ms Knorr confirmed the position, as set out on 5 October 2016, that the first appellant is not fit to give evidence for the reasons set out in the second expert report of Dr Susan Fairweather, consultant psychiatrist. In her second report dated 28 September 2016 Dr Fairweather confirmed at paragraph 7.6.1 that although in her report of 17 June 2016 she was of the view that the first appellant was fit to give evidence, in light of her most recent assessment she changed this opinion and for the reasons set out believed that the appellant was not fit to give evidence. Mr Tarlow confirmed at the outset that he was not seeking to challenge this assessment. Although therefore Dr Fairweather had helpfully attended the Upper Tribunal, both on 5 October 2016 and 9 November 2016, it was not necessary to hear oral evidence.
4. The hearing proceeded by way of submissions only and these are set out in full in the Record of Proceedings. The documentation before me included the respondent's bundle in the usual form, the appellant's consolidated bundle, together with additional case law and guidance relied on and a skeleton argument. I considered all the evidence and information before me even if not referred to specifically below. At the end of the hearing I reserved my decision which I now give.
Preliminary Issue
5. The respondent in the grounds of appeal to the Upper Tribunal dated 5 August 2016 had argued that the second to fourth appellants, three of the first appellant's four children, did not have rights of appeal as there had been no rejection of their claim, for the purposes of Section 82 of the 2002 Act as amended by the Immigration Act 2014.However, Mr Tarlow indicated at the outset of the hearing that the second to fourth appellants did have a right of appeal under Section 82 of the 2002 Act.
6. On 28 October 2014 the first appellant and her three children claimed asylum. I note that the first appellant's screening and asylum interview specifically indicates that the first appellant was claiming not only on her own behalf but also for her children. For example, at question 4.2 of the screening interview, the appellant when asked to briefly explain why she could not return to her home country referred to her own circumcision and that if she returned "my two daughters will be circumcised".
7. Additionally in the screening interview (continuation sheet A12) the first appellant when asked if there was anything further she wanted to add referred to the fact that she had come to the UK "around thirteen years ago" for "sex work" and that she did not "want my children to suffer like I did. I have been through horrible things". In the substantive asylum interview the appellant again, including at question 155, indicated that she feared for her daughters "because they are going to be cut". Additionally she indicated that "my boy because of his special language he will be labelled and ostracised". The first appellant went on to provide further details in relation to what she alleged were difficulties for her children on return to Nigeria.
8. I note on 19 November 2014, prior to that substantive asylum interview the appellant's solicitors wrote to the respondent in response to a Section 120 notice. This letter indicated that the first appellant and her then three children (the fourth child, who it is not disputed is not an appellant, was not yet born at this stage) relied on a number of additional grounds in relation to 'risks on asylum and human rights grounds', The letter set out, inter alia, the risk of Female Genital Mutilation (FGM) to the first appellant's two daughters and the risk to her son in relation to his developmental delay. In addition the appellant's representatives then submitted further representations following the interview detailing the asylum and human rights grounds for each of the four appellants.
9. I note and it was not disputed by Mr Tarlow that the respondent's decision refusing the asylum and human rights claim addressed the claims in relation to all of the appellants.
10. Whilst the respondent at the error of law hearing initially sought to rely on the fact that notices were issued to the second to fourth appellants stating that they did not have a right of appeal as they were dependants, Mr Tarlow did not dispute before me that each appellant had made an asylum and human rights claim which had been refused and therefore had a statutory appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002 as amended.
11. Despite these notices the four appellants all lodged grounds of appeal which were accepted. Mr Tarlow did not dispute the argument that this situation was analogous to that in Abiyat & Ors (rights of appeal) Iran [2011] UKUT 00314 (IAC), a decision of the Vice President, Mr Ockelton. Although that was in relation to the rights of appeal under Section 83 of the Nationality, Immigration and Asylum Act 2002, there are parallels to the amended Section 82.
12. I accept the argument that the jurisdiction does not come from the notices themselves but rather that the Secretary of State had in actuality refused protection claims that had been made by all four appellants.
The Respondent's Case
13. The refusal addressed to the first appellant dated 7 August 2015 accepted that the appellants are Nigerian nationals. The respondent detailed that the appellant had travelled to the UK from Nigeria by plane, using false documents on an unknown date in 2000. The first appellant then returned to Nigeria using false documents. On 19 February 2007 the first appellant was granted a visa to enter to the UK valid until 19 August 2007. On 13 August 2007 she was issued with a visit visa valid until 13 August 2009. The first appellant arrived again in the UK on 8 November 2007 before returning to Nigeria after approximately three months. In April 2008 the first appellant travelled to the UK again flying to Gatwick Airport on a valid visit visa. On 10 December 2009 the first appellant applied for leave to remain as a dependent spouse. This was rejected with no right of appeal on 30 March 2010. On 30 March 2010 the first appellant applied for leave to remain as a dependent spouse again which was refused with no right of appeal on 30 March 2011. On 2 April 2012 the first appellant applied for leave to remain under the family and private life Rule which was again refused with no right of appeal on 13 June 2013. On 28 October 2014 the first appellant attended an appointment to raise an asylum claim. On 15 April 2015 a referral was made to the National Referral Mechanism in order for a competent authority to make a decision as to whether the first appellant was a victim of trafficking.
The Competent Authority Decision
14. The decision was dated 17 July 2015 although I accept that it was not received by the appellant or her representatives at that time. The conclusive grounds decision accepted that there were reasonable grounds to believe that the appellant was a potential victim of trafficking. Following on from the reasonable grounds decision of 15 April 2015 a conclusive grounds decision was made and it was considered that the appellant's account was internally consistent but remained uncorroborated.
15. However, the decision went on to consider that the first appellant did not recall either when she arrived or the year she returned to Nigeria and there was no supporting evidence of her entry or departure from the UK before 26 April 2007. It was therefore considered that the appellant had provided insufficient evidence to support her claim to the required standard of proof that she was recruited by deception or that force was used and that she worked to pay her debt off. Although the first appellant had claimed that she was held against her will and forced to work as a prostitute after arriving in the UK to pay off the cost of her journey to the UK it was not considered that there was sufficient evidence to support this claim.
16. It was acknowledged that the first appellant continued to be provided with help in the UK as to her mental health and wellbeing in relation to the deaths of her sister and mother and the traumatic circumstances in Nigeria. However, none of the medical letters or notes referred to her being a victim of sexual exploitation in the UK. It was therefore considered that there was insufficient evidence to support her claim to the required standard and a negative decision was made.
Protection Claim Refusal
17. In the reasons for refusal it was considered that the first appellant's claim that her daughters would be at risk of FGM and that her son would be accused of witchcraft was accepted as potentially falling within membership of a particular social group.
18. The respondent relied on the Conclusive Grounds decision of the Competent Authority dated 17 July 2015 and shared the conclusion that the first appellant was not a victim of trafficking and rejected this allegation. The respondent further did not accept that the first appellant had been subjected to female genital mutilation as a child. The respondent noted that the appellant had provided different details in the visa applications in relation to her circumstances in Nigeria and it was considered that she had provided an inconsistent account.
19. The respondent also considered that the first appellant arrived in the UK for the last time in 2008 but did not claim asylum until 5 November 2014 and had made a number of immigration applications. However, despite the fact that her daughter was born in 2008 and her son in 2011 she did not claim asylum until 2015 and it was considered that there was no reasonable explanation for this delay. The respondent was not satisfied that the general credibility of the first appellant had been established. It was not accepted therefore that she had been a victim of trafficking, nor that her daughters were at risk of FGM. It was further not accepted that her son would be accused of witchcraft and the respondent noted that there was no adequate evidence to substantiate this claim.
The Law
20. To qualify for international protection, the appellants must meet the requirements of the 2006 Regulations and the provisions set out in the Immigration Rules as amended, both of which implement Council Directive 2004/83/EC (the Directive) on minimum standards for the qualification and status of third country nationals or stateless persons, as refugees or as persons who otherwise need international protection, and the content of the protection granted. Paragraphs 339I to 339N set out the conditions attached to the assessment of applications, which I have applied to this case.
The Burden and Standard of Proof
21. In coming to a decision I must consider firstly the Home Office's decision to refuse the appellants asylum and humanitarian protection and secondly whether such a refusal would lead to a breach of the European Convention of Human Rights Articles 2 or 3. I will take each part in turn.
22. The burden of proof is on the appellants to establish their case. The standard of proof is not a high one. It is lower than the normal civil standard. The appellants must show there is a real risk of:
(a) being persecuted for one of the five grounds set out in the 1951 Refugee Convention and defined in Regulation 6 of the 2006 Regulations. A refugee is defined as any person who owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside of the country of his nationality and is unable, or owing to such fear unwilling, to avail herself of the protection of that country; or
(b) suffering serious harm if returned to their country, as defined in paragraph 339C of the Immigration Rules; or
(c) being subjected to torture, inhuman or degrading treatment or punishment under Article 3 of the 1951 Human Rights Convention or being treated in such a way as would breach Article 2 of that Convention which protects the right to life.
The Appellants' Case and Findings of Fact
23. The first appellant was born on 11 July 1973 and is from the Yoruba tribe. She is from Lagos Island in Nigeria. She had a brother and a sister, her brother living in South Africa and she has indicated that her sister died in 2011; her father died in 2003 and her mother also died in 2011.
24. It is the appellant's case that when she was aged 10 or 11 she was subjected to FGM. Although this was not accepted by the respondent, the first appellant provided evidence including medical evidence in relation to FGM. The latter was in the form of a letter from Dr Comfort Momoh of Guy's and St Thomas' NHS Trust dated 8 July 2016, which confirmed that the first appellant had been examined on 1 July and that the lower part of the right labia majora appeared missing, consistent with FGM type 2a (World Health Organisation classification 2016). Mr Tarlow acknowledged this evidence which, although it post-dated the refusal letter, he did not dispute. I accept that the appellant has been a victim of FGM. I have considered this in the round.
25. As noted above, one of the respondent's main concerns was that the details provided in the visa applications for the first appellant, including that she was a managing director in Nigeria and that she had a husband and child there, were inconsistent with her claim that she had been forced to work as a prostitute in Nigeria. However, the first appellant has consistently claimed that following FGM she suffered sexual abuse and that she moved to another area of Lagos and resorted to supporting herself through prostitution to survive.
26. It was the appellant's case that in around 2000/2001 whilst working as a prostitute she was given the "opportunity" to go to London where she was told she could stop being a prostitute and could get a job and continue her education. She was told that her travel would be arranged. The appellant arrived in the UK with two other girls where they were forced to work as prostitutes. The first appellant has given a number of, what I find to be, relatively consistent details in relation to her experiences in being trafficked to the UK and forced to work as a prostitute.
27. I note that Mr Tarlow, although he relied on the refusal letter, did not seek to make any adverse credibility submissions in relation to the first appellant, other than maintaining that the appellant had delayed in making her asylum claim.
28. Although I accept that the details on her visa application clearly did not match her account, I am satisfied that this is entirely consistent with an individual being trafficked to the UK who would evidently have no control over the manner of that travel or what was said in relation to her alleged intention in making the journey to the UK.
29. In taking account of all of the evidence I have considered that the first appellant is a vulnerable witness in accordance with the Joint Presidential Guidance Note No 2 of 2010 and although I accept that she was not physically or mentally fit to give evidence before me I nevertheless must be guided by the Presidential guidance when assessing the first appellant's evidence, including that being aware that some forms of disability cause or result in impaired memory and that the order and manner in which evidence is given may be affected by mental, psychological or emotional trauma or disability (paragraph 10.3).
30. There was no challenge by Mr Tarlow to the very detailed medical evidence that was before me, including from Dr Fairweather in the form of her two reports. In her first report dated 17 June 2016 Dr Fairweather confirmed that the first appellant is suffering from complex posttraumatic stress disorder with associated panic attacks, consequent to multiple traumatic events and major depressive disorder. It was Dr Fairweather's expert opinion that as a result of the multiple traumas that the first appellant has suffered she is in a "chronic traumatised state".
31. Although the conclusive grounds decision drew adverse inference, including from the first appellant's failure to recall when she actually arrived in the UK and when she returned to Nigeria, I have taken into consideration the medical evidence together with the consistent reports from the professionals involved with the first appellant including: Peter Horrocks, a social worker who provided a report dated 15 June 2016; Dr Masoud from the Community Mental Health team, who had provided a review dated 29 December 2015; Dr Kenyon, who in a letter dated 14 March 2012 referred to the first appellant's loss of her mother having "stirred up thoughts about traumatic incidents in her past in Nigeria, relating to events which she had not thought about for a long time"; the report of Carol Bloomer, Community Mental Health Nurse dated 15 August 2012 in which it was recorded that the appellant had stated she had come to the UK "around twelve years ago". The first appellant had provided some details in relation to her circumstances and the first appellant had spoken of a "difficult childhood in Nigeria where she witness violence and was herself a victim of violence and abuse"; Dr Parmar in a letter dated 21 October 2014 indicated that the first appellant presented with a history of depressive episodes.
32. Although the appellant's recall of dates in relation to her initial trafficking from Nigeria and her return there is not clear and the appellant did not make a full disclosure to all the medical professional who were working with her over the years, I accept that there is a clear pattern that the appellant was in difficulties and clearly attributed those difficulties, in her dealings with healthcare and other professionals, to her traumatic past. Dr Fairweather confirmed that the first appellant's avoidance of the issues and failure to disclose specific information in relation to exactly what had happened to her at an earlier stage is entirely consistent with her mental health consequent to those experiences. Mr Tarlow did not dispute and I accept Dr Fairweather's explanation that there are significant barriers to full disclosure and that further disclosures are likely particularly in relation to the first appellant's experience of forced prostitution.
33. Dr Fairweather went on to state that the first appellant's specific psychological presentation and symptoms were highly consistent with her claimed history. It was Dr Fairweather's impression that her clinical presentation was consistent with her stated history of trauma over a period of time. I have taken into consideration that Dr Fairweather, in her detailed and comprehensive reports, also specifically considered whether Ms Roberts had been feigning or exaggerating her account and symptoms. However, Dr Fairweather was of the professional opinion that it would have been "virtually impossible" for the first appellant to fabricate this kind of presentation over time, especially her level of distress, anxiety with panic attacks and depressed mood.
34. Dr Fairweather was of the view that the most likely cause of the first appellant's psychiatric disorders was the significant interpersonal traumas she has described including FGM, her beatings, rape, the death of an acquaintance and her forced prostitution, followed by the sudden death of her mother, sister and her current situation in the UK. Dr Fairweather was candid that she could not definitely attribute the exact cause of the trauma leading to her specific Post Traumatic Stress Disorder (PTSD) although Dr Fairweather "would not expect to see this presentation in someone who had not experienced multiple serious traumas". Dr Fairweather also specifically considered that the PTSD symptoms could not be explained by factors such as "migration to a foreign country, poverty or the death of her mother and sister alone (although I believe those deaths could contribute to her trauma)".
35. Dr Fairweather noted that particular aspects of the first appellant's symptoms were highly consistent with suffering sexual trauma, these included the first appellant's description of struggling with a sexual relationship, her need to wear a bra during sex and her avoidance of lying down. This related to the trigger of lying down both to enforced FGM and prostitution. In Dr Fairweather's clinical experience a description of a trigger of this kind gives "high clinical plausibility to the traumatic experiences she has described". Dr Fairweather went on to state that in her professional clinical opinion it was not one that would be readily understood or identified unless the first appellant had actually experienced traumas such as the ones she described and that it would be difficult to know this specific trigger and develop a way to avoid it. Dr Fairweather went on to conclude that being involved in consensual sex work would not cause these symptoms.
36. I have also taken into account in the round that the first appellant's account of her history is plausible according to the country expert report of Ms Ariyo. I note that Ms Ariyo detailed her experience and work in relation to a number of issues including human trafficking. Ms Ariyo considered and reviewed the first appellant's account of her life in Nigeria, the effects of FGM and her life after this experience together with her further experiences of rape and prostitution.
37. Ms Ariyo provided background country information references to support her expert opinion that the first appellant's account was plausible in light of the expert's knowledge of Nigeria.
38. Although the respondent relied heavily on the first appellant having made a very late claim for asylum at the same time I note that the respondent accepted that the first appellant had made a genuine effort to substantiate her claim and that all material factors at her disposal had been submitted. The first appellant has maintained in her detailed witness statement, which is supported by the various reports provided in support of her appeal, that she did not fully understand the grounds on which she could qualify for asylum.
39. This is dealt with in some considerable detail in the first appellant's witness statement dated 14 June 2016. This included that the first appellant had heard of asylum and had heard of people being returned to Nigeria and she did not realise that asylum was an option for her. Initially she had been in a long-term relationship and was trying to get on with her life and regularise her leave. It was not until her children were slightly older and she was pregnant again that she began to become more depressed and concerned about the fate of her children.
40. At this point, initially she felt that her grounds for claiming asylum were that her children would be at risk of rape and abuse if they were returned to Nigeria. Although she knew about FGM her mind was not focused on this. It was not until she attended a talk at her daughter's school in relation to FGM and that this was against the law that the first appellant began to take advice and realise that she could apply for asylum including in relation to her fears for her daughters.
41. I accept in the context of everything that has occurred to the first appellant including that she has been subjected to FGM and that the medical and other reports are supportive of the first appellant having been subject to significant trauma, that it is credible that she might not have applied for asylum earlier than she did. I have also taken into consideration in assessing the appellant's actions that she is a vulnerable adult.
42. I note that the respondent accepted that the first appellant's account of undergoing FGM and her consequent fear of her daughters undergoing FGM was consistent, although this was rejected because it was unsubstantiated. As noted above, the first appellant has now provided evidence that she has been subject to FGM and this was not disputed by Mr Tarlow.
43. I have also taken into consideration that the first appellant's account of the traumatic circumstances surrounding this circumcision had been detailed and consistent and, as set out by Ms Ariyo, her account accords with the background country information in relation to cultural considerations amongst Yoruba people. The first appellant continues to receive support from an FGM prevention and support service in the UK.
44. The appellants are from the Yoruba tribe and it is not disputed that neither of the first appellant's daughters has undergone FGM. In light of the fact that I accept that the first appellant suffered traumatic FGM as described I am satisfied that there is a real risk that her female children would also be subject to FGM by their extended family and this fear is supported by the information before me including by Ms Ariyo in her expert report.
45. In addition, ongoing concerns in relation to FGM are set out in the respondent's most recent Country Information and Guidance Nigeria: Women fearing gender-based harm or violence dated August 2016. This report confirms the prevalence of prevalence of FGM in Nigeria, which continues to be high in some areas of the country and that 19,900,000 of girls and women had undergone FGM in Nigeria. The report also refers to a 2012 report which confirms that of the six largest ethnic groups five of them including Yoruba practise FGM.
46. I am satisfied that if the appellants return to the first appellant's home area the female children would face a real risk of FGM because the family will insist on this and I am not satisfied that the first appellant would be in a position to stop it, particularly in light of her vulnerability and mental health difficulties (and, as indicated, the First-tier Tribunal Judge's decision on Article 8 - which included findings that the first appellant is a vulnerable person with a mental health condition and that the situation, where is currently in the UK having great difficulty in coping with the care of her children, would be significantly worsened on return to Nigeria - stands). I am satisfied to the lower standard that the evidence establishes that the first appellant would not be in a position to protect her children from FGM.
47. I accept that given the wealth of medical and other evidence that the first appellant would return to the family home (and her surviving family there) if forced to return to Nigeria. I accept her evidence that she would have nowhere else to go. This is consistent with her accounts of previously having had to resort to prostitution and ending up being trafficked from Nigeria. In these circumstances, with three young children, given her multiple mental health difficulties, and her concerns in relation to her son, I am satisfied that she would return to the family home. However, given the appellant's history in Nigeria including her previous recourse to prostitution I am not satisfied that the appellant would receive any material assistance from her family which might prevent descent into destitution.
48. Therefore I am satisfied that the female children would be at risk in their home area.
49. In relation to trafficking although I accept that the respondent did not recognise the first appellant as a victim of trafficking (despite accepting that the first appellant's claims were consistent with the country information) I am not satisfied that any of the discrepancies in the first appellant's account are material, particularly given her well recorded mental health difficulties. Her account of being trafficked was essentially rejected due to lack of supporting evidence in relation to the appellant's initial entry and the fact that reference to sexual exploitation was not explicitly made in the various medical notes which were recorded during the first appellant's various contacts with medical professionals in the years prior to claiming asylum.
50. However, I do not attach any adverse inference to the lack of record of the first appellant's own entry to the UK because, as I am satisfied that it is entirely plausible that this might have been something directed by her traffickers and not within her control or even her knowledge. This will have been further compounded by her subsequent mental health difficulties which I accept have blurred her recall. In addition, I do not attach any adverse inference to the fact that the appellant's references to her difficulties have emerged in her medical records in a piecemeal fashion. I accept the reports including Dr Fairweather's view that this is entirely consistent with the trauma that she has experienced.
51. For example, I note that the first appellant's GP does not record the fact that she has undergone FGM despite the fact that there is accepted medical evidence now that this is the case. I also note, as indicated by Dr Masoud, that her children have been present at some of the appointments and this may have been a barrier to full disclosure of her difficulties. Indeed, Dr Masoud specifically stated in the letter dated 4 January 2016 that at that appointment Ms Robert did not elaborate much on her past history, was tearful and stated that she "did not wish to speak in front of her eldest daughter who she said, understood everything".
52. As already noted, the medical records do refer to unspecified traumas in the past which I am satisfied is entirely consistent with the appellant's account of having been a victim of sexual violence. I do not on all the evidence considered in the round, which is highly supportive of the appellant's account, draw any adverse inference from the way in which her account has emerged and I attach particular weight to Dr Fairweather's report.
53. The fact that some of the details have been vague, in particular in relation to when she was trafficked and when precisely she returned to Nigeria is in fact supportive of her account rather than the opposite, given the extent of the trauma that the appellant has suffered.
54. I accept therefore that the first appellant is a victim of trafficking as well as of FGM and sexual violence and that her account of being recruited by her traffickers to escape a life of prostitution with no family support was consistent with recruitment methods of traffickers including as set out by Ms Ariyo in her report. I find the appellant to be credible in the core of her account (and in finding that the appellant is a victim of trafficking I have considered the guidance in MS (Trafficking - Tribunal's Powers - Art. 4 ECHR) Pakistan [2016] UKUT 00226 (IAC).
Risk on Return
55. In relation to the appellants' risk on return I have taken into consideration that a significant time has passed since the first appellant was trafficked to the UK and that she was in a position to return to Nigeria without being retrafficked. I have considered the relevant guidance including HD (Trafficked women) Nigeria (CG) [2016] UKUT 00454.
56. I am satisfied that the evidence establishes that the first appellant is extremely vulnerable because of her history of sexual exploitation and sexual violence together with her current mental health difficulties and that she is at risk of returning to prostitution in Nigeria. I have attached weight to the report of Peter Horrocks and Dr Fairweather. In particular, I accept that the first appellant has turned to prostitution before when unable to survive and that on return she would face the 'overwhelming need' to provide for her children and ensure their health.
57. Although I am not satisfied that it has been established that the appellant would be retrafficked, including as she was able to avoid this fate when she returned to Nigeria, I am satisfied that it would be a breach of Article 3 and amount to inhumane and degrading treatment if the first appellant were in effect forced by circumstances back into prostitution in Nigeria, which I am satisfied there is a real possibility would be the case.
58. I am not satisfied that there is sufficiency of protection against FGM for the minor female appellants. Whilst I accept that the background country information shows that FGM is an offence in a number of Nigerian states, there is no effective protection in circumstances such as the appellants' and I rely on the background country information and Ms Ariyo's report.
59. It is not suggested by the respondent that the appellants could internally relocate within Nigeria. I attach weight to the first appellant's consistent confirmation that she would not and could not relocate as she would have no choice but to return to the family home for accommodation. I am not satisfied therefore that she could safely relocate as she would be at risk of sexual violence and exploitation in Nigeria.
60. Further, in the alternative if I am wrong in relation to the safety of relocation I am satisfied that it would be unduly harsh to require the first appellant to relocate with her children, the second to fourth appellants, given their particular circumstances including the mental health and extreme vulnerability of the first appellant, her well founded fears for her female children and the developmental delays of her son (albeit that these issues have not manifested at school).
61. In making this decision generally, I have taken into account as a primary consideration the best interests of all of the appellant's children. In conclusion, I am satisfied that internal relocation, away from the risks that face the female minor appellants, would not be in their best interests given the risks to the family as a whole. Again I have attached weight to the report of Peter Horrocks in relation to the very significant negative impact of return to Nigeria on all of the children in light particularly of the extreme vulnerability of the first appellant and her history of experiencing both trafficking and sexual violence in Nigeria.
62. However I am not satisfied that it has been established, even to the lower standard that the first appellant's son, the third appellant, would be at risk on return by virtue of his claimed developmental delays alone (he has been diagnosed with sensory needs and is awaiting screening for possible autism/Attention Deficit Disorder). It was conceded by Ms Knorr that the view of the school (who have not identified any concerns) did not accord with that of the appellant in relation to the presentation of her son.
63. I have considered Mr Knorr's comprehensive submissions including that the threshold for persecution is lower for children. It was submitted that discrimination, risk of witchcraft accusations and the inability to enjoy community life in Nigeria would amount to persecution for the third appellant, particularly in light of his young age. Whilst that might be the case, I note that the report of Peter Horrocks identifies the difficulties for the third appellant in terms of disruption and possible long term consequences in his future development needs, and that the likely decline in his mother's mental health will impact on him significantly. Mr Ariyo was of the view that the third appellant was at risk of being identified as a witch 'if he displays noticeable signs of behavioural issues or special educational needs' (Appellant's Bundle C95). I accept that the first appellant has concerns in relation to her son at home and that these are currently being investigated. However, given that he is not currently presenting with such behavioural difficulties in the public environment that is his school, I am not satisfied to the lower standard that it has been demonstrated that he would display noticeable signs of behavioural issues/special education needs and therefore I am not satisfied that the family would even encounter discrimination on return, on account of the third appellant.
64. I am satisfied that the second and third appellants are entitled to refugee protection by female children in a society that practices FGM or in the alternative if I am wrong in relation to the Convention reason I am satisfied that their claims succeed in relation to humanitarian protection. I am satisfied that the first appellant is at risk of treatment amounting to persecution by virtue of her membership of a particular social group as the victim of sexual violence with mental health vulnerabilities who is at risk of serious harm/inhuman treatment on account of destitution and forced prostitution.
65. In relation to the appellants' Article 3 claim in relation to the first appellant's suicide risk I have taken into consideration the very high bar in mental or physical illness cases; N v UK [2008] 47 EHRR 39 applied.
66. In J v Secretary of State for the Home Department [2005] EWCA Civ 629 or ERD 359 Lord Justice Dyson set out the relevant principles in assessing the risk of treatment contrary to Article 3 in a "foreign case" where the fear of harm arises from a risk of suicide or mental deterioration after removal. These principles can be summarised as follows:
Consideration must be given to the severity of the treatment/harm which the appellant would suffer if removed.
(i) A causal link must exist between the removal and the treatment feared.
(ii) The threshold of severity is particularly high in foreign cases, especially where the ill-treatment results from a naturally occurring illness.
(iii) An Article 3 claim can in principle succeed following Bensaid, in a case where the risk of harm arises from suicide or self-harm.
Whether the applicant's fear of ill-treatment in the receiving state is objectively well-founded as a relevant factor.
(iv) It is important whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide.
67. In the case of Y & Z v Secretary of State for the Home Department [2009] EWCA Civ 362 a breach of Article 3 can still be made out even where there was no objective risk of ill-treatment. The issue in such cases is not whether there are in theory psychiatric facilities available, but whether these are accessible in practice to the individual applicant.
68. The first appellant suffers from well documented serious mental health difficulties, which have considerably worsened over time but which I accept are as a result of her traumatic past. I accept Dr Fairweather's professional clinical opinion that it is very important for the first appellant to have a safe and stable social situation including the resolution of her immigration status. It is Dr Fairweather's prognosis that the first appellant's condition would be significantly worse even if treatment were available if returned to Nigeria because of the first appellant's genuinely held fears and that she is likely to have a mental health crisis on return.
69. Although I accept that there is some mental health services provision in Nigeria, I am not satisfied that the level of intensive mental health, social and educational support that would be required from the outset, including at the airport, would be accessible to the first appellant in Nigeria including because of a lack of such infrastructure in Nigeria and I rely on the AFRUCA expert report dated 17 June 2016 provided for the first appellant from Ms Ariyo.
70. Dr Fairweather has consistently confirmed in both of her clinical reports in relation to the first appellant that she would become suicidal if she received a negative determination. The prediction made by Dr Fairweather prior to the first appeal was substantially made out and Dr Fairweather reports that the first appellant's suicide risk significantly increased following a negative decision after the First-tier Tribunal and the stress of participating in those proceedings. I am satisfied therefore, despite the very high threshold, that it would be satisfied on the particular facts in this case and that the first appellant's case also succeeds under Article 3 in relation to mental health risk and the risk of suicide. I am further satisfied that such a risk would also expose the second to fourth appellants to a concomitant risk of inhuman and degrading treatment given their particular circumstances, including the psychological harm and distress in witnessing their mother's extreme ill health, the fear of their extended family and the limited support services which therefore would be available to the children in these circumstances.
Conclusion
71. The decision of the First-tier Tribunal [other than in relation to Article 8] is set aside. I substitute a decision allowing the first, second and fourth appellants' appeals on asylum grounds.
72. The third (minor male) appellant is entitled to humanitarian protection.
73. The appellants' appeals succeed under Article 3 human rights grounds.
Notice of Decision
The appeals are allowed.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.


Signed Date

Deputy Upper Tribunal Judge Hutchinson



TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.


Signed Date

Deputy Upper Tribunal Judge Hutchinson


APPENDIX

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/11394/2015
AA/11397/2015
AA/11401/2015
AA/11403/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 5 October 2016




Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON


Between

VR
KO
RO
RO
(ANONYMITY DIRECTION MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellants: Ms M Knorr, Counsel, instructed by Southwark Law Centre
For the Respondent: Mr N Bramble, Home Office Presenting Officer


DECISION AND REASONS
1. Both parties in this case had permission to appeal to the Upper Tribunal. Therefore both parties are appellants and respondents. However, I refer to the parties as they were before the First-tier Tribunal where Ms R and her children were the appellants.

Background
2. The first appellant is Ms VR, a citizen of Nigeria, and the second to fourth appellants are her three children, two daughters and a son, who are minors. The appellants appealed against the decision to refuse to grant asylum made by the respondent on 7 August 2013. In a decision promulgated on 25 July 2016, Judge of the First-tier Tribunal Herlihy dismissed the appellants' appeal on asylum grounds, on humanitarian protection grounds and under the Immigration Rules. Judge Herlihy allowed the appellants' appeal on human rights grounds under Article 8 outside the Immigration Rules.
3. I deal with both appeals separately below.
Asylum and Humanitarian Protection Appeal
4. The appellants appealed on the following grounds:
Ground 1
5. The first ground argued that the judge failed to consider evidence in the round when making credibility findings, failed to properly take into account the medical and country expert evidence in considering credibility contrary to the guidance in Mibanga v SSHD [2005] EWCA Civ 367 and failed to comply with the Joint Presidential Guidance Note No 2 of 2010, Child, Vulnerable Adult and Sensitive Appellant Guidance ('vulnerable witness guidance').
6. It was argued that the judge failed to take into account the medical evidence that the first appellant's delay in disclosure was consistent with her mental health problems and that the first appellant has various specific symptoms consistent with her account of sexual violence. The expert report by Dr Fairweather explained that the first appellant's avoidance and failure to disclose specific information about her past was highly consistent with her mental health consequent to her experiences.
7. It was argued that it was also well-established that victims of trafficking and sexual violence may make delayed disclosure and that the judge had also failed to take into account the country expert report in assessing credibility and gave no reasons for rejecting the report of Ms Ariyo which had found that the first appellant's history was plausible when considered against country conditions. It was claimed that the judge failed to acknowledge or take into account that the first appellant provided a consistent account of her history in her witness statements, to the Home Office and to numerous professionals.
8. I am not satisfied that the judge gave adequate reasons for rejecting the appellant's evidence as she did particularly in light of the medical and other evidence before the judge in relation to victims of trafficking and sexual violence.

Ground 2
9. It was argued that the judge failed to give sustainable reasons for rejecting aspects of Dr Fairweather's report; Y & Z (Sri Lanka) v SSHD [2009] EWCA Civ 362; [2009] HRLR 22 relied on. The judge wrongly indicated that the report fails to disclose the length of the consultation with the appellant and incorrectly stated that the judge failed to address the question of whether the first appellant's mental health problems could have arisen from other matters aside from her claimed traumatic experiences.
10. It was also stated that it was unclear what the judge meant when she found that Dr Fairweather had provided no evidential basis for her view that the first appellant's prognosis was worse in Nigeria even with treatment. It was argued that she did.
11. It was submitted that the judge was wrong to conclude that there was a clear disparity between Dr Fairweather's findings and those in the medical records or that Dr Fairweather had failed to give sufficient consideration to factors identified by other health professionals.
12. I accept that the findings indicate that the judge was "cherry-picking" the evidence including in his approach to Dr Masoud's letter at [66] of the determination (Y & Z (Sri Lanka) v SSHD [2009] EWCA Civ 362 HRLR 22).
Ground 3
13. It was further argued that it was unreasonable of the judge to rely on medical records in making adverse credibility findings and the judge had relied heavily on the medical records in making adverse credibility findings. However, I am satisfied that the judge failed to make adequate findings in relation to the parts of the medical records which it was suggested support the first appellant's account of past persecution and which referred to her past traumas in addition to those that have been accepted by the judge.
Ground 4
14. It was argued that it was unreasonable for the judge to reject the first appellant's credibility because the first appellant had failed to produce evidence from the father of her children and from her friends and it was argued that the first appellant had not been in a relationship with the father of her children for over five years and this had been an abusive relationship. The first appellant had also made clear that she had not told her former partner about her history of trafficking and it is unclear in the circumstances what the judge believed he could have said that was relevant to her claim.
15. In relation to friends it was argued that there was no evidence that there were any friends who had knowledge of events material to the first appellant's claim and considering the first appellant's vulnerability and the medical evidence there was no basis to suggest that she might have shared matters with friends.
Ground 5
16. It was argued that the judge made a material error in failing to make findings on the risk to the first appellant of prostitution and of further exploitation on return to Nigeria and the judge did not make any findings on some material aspects of the first appellant's history, in particular that she had worked as a prostitute in Nigeria prior to being trafficked in the UK and that she had had sex in exchange for money to support her children while in the UK.
17. It was also argued that it was the view of the Independent Social Worker, Peter Horrocks, and Dr Fairweather that there was a real risk that the first appellant would be forced by her circumstances to return to prostitution, which would be persecutory, particularly in view of her history and vulnerability and would be seriously harmful to her children. It was stated that a finding that the first appellant would be forced into prostitution would amount to serious harm such that the first appellant would be entitled to refugee status or humanitarian protection
18. I am satisfied that the lack of adequate findings in relation to the first appellant's history and her circumstances on return to Nigeria was a material error.
Ground 6
19. It was argued that the judge failed to take account of relevant matters in dismissing the risk of Female Genital Mutilation (FGM) to the first appellant's daughters. In particular, the judge accepted that the first appellant had been subjected to FGM but it was argued that the judge failed to give proper weight to this fact and that the first appellant came from a tribal group (Yoruba) that traditionally practises FGM, that it was apparent that it was practised in the first appellant's family and that as a result the children would be at risk.
20. It was noted that the judge dismissed the risk of FGM relying on the lack of reference by the first appellant to FGM in the medical records and the first appellant's failure to refer to a fear of FGM in previous applications. I am not satisfied that such a finding is sustainable particularly in light of the fact that the judge accepted, as a matter of fact, that the first appellant had been subjected to FGM.
21. In addition it was argued that the evidence indicated that the first appellant would take her children back to her family in Nigeria because she would have nowhere else to go and as such the findings on internal relocation are not relevant as the first appellant would not relocate.
Ground 7
22. Ground 7 argued that the judge failed to take into account relevant matters when considering internal relocation, in particular that although the judge found that the children cannot be removed in accordance with Article 8 due to the first appellant's mental health problems, vulnerability and difficulty caring for the children, the judge failed to take these matters into account when considering internal relocation. The expert evidence including from Peter Horrocks, which was accepted by the judge at [77], strongly suggested that the first appellant would be extremely vulnerable if forced to relocate alone with her children and that she would be unable to meet their basic needs and would be likely to return to prostitution in an attempt to avoid destitution.
23. Dr Fairweather and Ms Ariyo were of a similar view. Whilst the judge states that the first appellant could work in Nigeria because she has worked there before, it was argued that the judge fails to take into account the expert evidence as to the first appellant's fitness to work and her ability to do so with four children, or the opportunities available or that the first appellant ended up working as a prostitute in Nigeria when she tried to support herself when she did not have a family. It was also argued that the judge failed to take into account the children's best interests when finding that they could relocate.
24. Again I am not satisfied that the judge provided adequate reasons in relation to internal relocation particularly in light of the fact that the judge finds, at [81] that the family cannot be removed in large part due to the first appellant's vulnerabilities including her mental health condition and that the judge found that 'the situation can only be significantly worsened on return to Nigeria'.
Ground 8
25. Finally it was argued that there were errors in the judge's assessment of the first appellant's Article 3 claim based on mental health and suicide risk. It was argued that the judge was wrong to find that Article 3 would not be breached as it was argued that the errors in relation to the approach to Dr Fairweather's report fatally undermined the judge's conclusions.
26. It was also not reasonable to rely on the first appellant's current suicide risk to find that contrary to medical evidence she would not present a risk on return to Nigeria when clearly Dr Fairweather was of the expert opinion that the risk of suicide was deemed to be far higher than her current risk.
Error of Law
27. Mr Bramble conceded at the outset of the appeal that there were material errors in the judge's approach. For the cumulative reasons outlined in the grounds of appeal to the Upper Tribunal I am satisfied that this is the case. Whilst individually a number of the grounds could be said to be no more than a disagreement with the findings of Judge Herlihy, taken as a whole and in light of the judge's approach to the expert evidence together with the judge's findings in particular when dismissing the risk of FGM and the risk of the first appellant being forced into prostitution/further exploitation on return, I am satisfied that there was a lack of adequate reasons given for both rejecting Dr Fairweather's report and a failure to make findings on key issues.
Conclusion
28. I am therefore satisfied that there is a material error of law in the judge's decision on the appellants' asylum, humanitarian protection and Article 3 appeals such that the decision must be set aside. No findings are preserved.
Remaking the Decision
29. It was agreed that the decision would be remade in the Upper Tribunal before a single judge. I was initially minded to remake the decision at the hearing. However, Mr Bramble indicated that although the Tribunal had issued directions in respect of the respondent's appeal against the Article 8 decision, no directions had been issued on the subsequent grant of permission on the appellants' appeal and this grant had only been made less than a week prior to the hearing before me. There was some force in Mr Bramble's argument that he had not therefore prepared the appeal for remaking on the day. Ms Knorr conceded that unfairness could arise if we proceeded. The appeal will therefore be remade at a reconvened hearing before a single judge of the Upper Tribunal and I refer the parties to the directions at the conclusion of this decision.
Human Rights Appeal
30. This was the appeal of the Secretary of State. The Secretary of State appealed on the following grounds:
Ground 1
31. It was argued that there was a material error of law in allowing the appeals of the second, third and fourth appellants as the Secretary of State noted that these had been allowed "in effect because the appellant and her younger children are able to piggyback on the rights of the appellant's eldest child". It was argued that the three children do not have a right of appeal as they have had no rejection of a human rights claim, for the purpose of Section 82 of the 2002 Act as amended by the Immigration Act 2014. Only the first appellant has a right of appeal. It was argued that this error was material given grounds 2 and 4.
Ground 2
32. The second ground was that the judge made a material error of fact in that at [82] the judge found that the first appellant had "disclosed sufficiently compelling and compassionate circumstances which justified the respondent in a grant of discretionary leave to her eldest daughter who has resided continuously in the UK for over seven years". However, the respondent had not granted any leave to the first appellant's eldest daughter and it was argued that this was material.
Ground 3
33. The judge had found at paragraph [71] that there were no compelling circumstances that would warrant a grant of leave outside the Rules before going on to consider the matter outside of the Rules, which it was argued was contrary to SS (Congo) & Ors [2015] EWCA Civ 387.
Ground 4
34. The judge failed to make a finding on a material matter as the judge failed to give reasons as to why the first appellant's eldest daughter met the requirements of paragraph 276ADE. It was argued that this was an error because the second appellant did not have a right of appeal in her own right and the assessment of the appeal should only have looked at the question of the first appellant through the Rules and if appropriate outside them.
35. It was argued that if that was not an error the judge made no finding as to whether it was reasonable for the eldest daughter to return to Nigeria. The judge set out the best interests assessments before then looking at the public interest issues and then identified the seven years' residence as a significant factor before moving on to consider proportionality. However, there was no reason given for the judge's finding that it was disproportionate to remove the eldest daughter. Given that there were no reasons given why it would be unreasonable for the eldest daughter to return to Nigeria the finding that she meets the requirements of paragraph 276ADE was manifestly unreasoned.
36. It was also argued that the proportionality assessment was inadequate for other reasons as the judge failed to weigh the first appellant's failure under the Rules into the equation and failed to identify what weight had been given to public interest and why the public interest was outweighed by other factors.
Findings
Ground 1
37. On 19 November 2014 prior to the first appellant's asylum interview and in response to a Section 120 notice the appellants' solicitor wrote to the respondent confirming that all appellants were raising asylum and human rights grounds.
38. Whilst the notices issued to the second, third and fourth appellants stated that they did not have a right of appeal it was argued that this was incorrect. Each had made an asylum and human rights claim that had been refused by the respondent and therefore had a statutory right of appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002.
39. It was noted that the Tribunal accepted their appeals, apart from that of Husnu, who was a dependant having been born after the claim was made. It was noted that the respondent raised no issue to the jurisdictional point before the First-tier Tribunal.
40. Ms Knorr provided no authority to support her argument that the raising of asylum and human rights grounds in itself founded a right of appeal. However, I am of the view that I need not decide this issue given that I am satisfied that even if the second, third and fourth appellants had no valid right of appeal any error made by the judge would not be material.
41. The legal framework for consideration of the children's claims and those of their parents has been further clarified by the Court of Appeal in MA (Pakistan) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705.
42. The provisions are as follows:
"276ADE(1) The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR.1.2. to S-LTR.2.3. and S-LTR.3.1. to S-LTR.4.4. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
[?]
(iv) is under the age of 18 years and has lived continuously in the UK for at least seven years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
[?]
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than twenty years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK.
276ADE(2) Sub-paragraph (1)(vi) does not apply, and may not be relied upon, in circumstances in which it is proposed to return a person to a third country pursuant to Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.
[?]
276A0 For the purposes of paragraph 276ADE(1) the requirement to make a valid application will not apply when the Article 8 claim is raised:
(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;
(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant's place of detention; or
(iii) in an appeal (subject to the consent of the Secretary of State where applicable).
[?]
GEN.1.9. In this Appendix:
(a) the requirement to make a valid application will not apply when the Article 8 claim is raised:
(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;
(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant's place of detention; or
(iii) in an appeal (subject to the consent of the Secretary of State where applicable); and
[?]
R-LTRPT.1.1. The requirements to be met for limited leave to remain as a parent are -
(a) the applicant and the child must be in the UK;
(b) the applicant must have made a valid application for limited or indefinite leave to remain as a parent or partner; and
[?]
(d)
(i) the applicant must not fall for refusal under S-LTR: Suitability leave to remain; and
(ii) the applicant meets the requirements of paragraphs E-LTRPT.2.2-2.4. and E-LTRPT.3.1-3.2.; and
(iii) paragraph EX.1. applies.
[?]
EX.1. This paragraph applies if
(a)
(i) the applicant has a genuine and subsisting parental relationship with a child who -
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British citizen or has lived in the UK continuously for at least the seven years immediately preceding the date of application; and
(ii) it would not be reasonable to expect the child to leave the UK;
[?]
D-LTRPT.1.2. If the applicant meets the requirements in paragraph R-LTRPT.1.1.(a), (b) and (d) for limited leave to remain as a parent they will be granted leave to remain for a period not exceeding 30 months and subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition, and they will be eligible to apply for settlement after a continuous period of at least 120 months with such leave, with limited leave as a parent under paragraph D-LTRPT.1.1., or in the UK with entry clearance as a parent under paragraph D-ECPT.1.1.
[?]
Section R-LTRC: Requirements for leave to remain as a child
R-LTRC.1.1. The requirements to be met for leave to remain as a child are that -
(a) the applicant must be in the UK;
(b) the applicant must have made a valid application for leave to remain as a child; and either
(c)
(i) the applicant must not fall for refusal under any of the grounds in Section S-LTR: Suitability - leave to remain; and
[?]
(d)
(i) the applicant must not fall for refusal under any of the grounds in Section S-LTR: Suitability - leave to remain; and
(ii) the applicant meets the requirements of paragraphs E-LTRC.1.2. - 1.6.; and
(iii) a parent of the applicant has been or is at the same time being granted leave to remain under paragraph D-LTRP.1.2. or D-LTRPT.1.2. or indefinite leave to remain under this Appendix (except as an adult dependent relative).
Section E-LTRC: Eligibility for leave to remain as a child
E-LTRC.1.1. To qualify for limited leave to remain as a child all of the requirements of paragraphs E-LTRC.1.2. to 2.4. must be met (except where paragraph R-LTRC.1.1.(d)(ii) applies).
Relationship requirements
E-LTRC.1.2. The applicant must be under the age of 18 at the date of application or when first granted leave as a child under this route.
E-LTRC.1.3. The applicant must not be married or in a civil partnership.
E-LTRC.1.4. The applicant must not have formed an independent family unit.
E-LTRC.1.5. The applicant must not be leading an independent life.
E-LTRC.1.6. One of the applicant's parents (referred to in this Section as the 'applicant's parent') must be in the UK and have leave to enter or remain or indefinite leave to remain, or is at the same time being granted leave to remain or indefinite leave to remain, under this Appendix (except as an adult dependent relative), and
(a) the applicant's parent's partner under Appendix FM is also a parent of the applicant; or
(b) the applicant's parent has had and continues to have sole responsibility for the child's upbringing or the applicant normally lives with this parent and not their other parent; or
(c) there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care."
43. The Nationality, Immigration and Asylum Act 2002 makes provision for specific factors to be considered in public interest cases. The relevant provisions are as follows:
"117A Application of this Part
(1) This Part applies where a court or Tribunal is required to determine whether a decision made under the Immigration Acts -
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under Section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or Tribunal must (in particular) have regard -
(a) in all cases, to the considerations listed in Section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in Section 117C.
(3) In subSection (2), 'the public interest question' means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
117B Article 8: public interest considerations applicable in all cases
[?]
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where -
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
[?]
117D Interpretation of this Part
(1) In this Part -
'Article 8' means Article 8 of the European Convention on Human Rights;
'qualifying child' means a person who is under the age of 18 and who -
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more;
'qualifying partner' mean a partner who -
(a) is a British citizen, or
(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 - see Section 33(2A) of that Act)."
44. MA (Pakistan) confirmed that applications may be brought by children under paragraph 276ADE(1)(iv) of the Immigration Rules or by parents under Appendix FM or outside the Rules relying on Section 117B. Regardless of which route is used the legal test is whether it is reasonable to remove a child who has been in the UK for seven years (MA (Pakistan) applied). MA (Pakistan) also indicates that where the requirements of Section 117B are satisfied no separate public interest assessment is required (as set out by the Tribunal in Treebhawon and others (section 117B(6)) [2015] UKUT 674 (IAC)).
45. MA (Pakistan) further confirmed that when considering whether it is reasonable to expect a child to leave the UK all factors can be considered including public interest considerations such as the parents' conduct but that strong reasons are needed for removing a child who has been here for seven years and very significant weight must be given to the length of residence. The best interests of the child will always be relevant.
46. Even if the judge erred therefore in attributing appeal rights to the first appellant's children, such is immaterial as the judge was required to assess, as she did, the position of the whole family in particular the children, against the relevant legislative framework set out above.
Ground 2
47. I am satisfied that the decision, read as a whole, does not indicate that the judge was proceeding on the basis that the respondent had already granted leave to remain to the second appellant. Although the judge's wording at paragraph [82] that:
"I find that the appellant has disclosed sufficiently compelling and compassionate circumstances which justified the respondent in a grant of discretionary leave to her eldest daughter who has resided continuously in the United Kingdom for over seven years"
could be clearer, this followed detailed consideration by the judge at paragraphs [72] through to [82]. The judge considered whether or not it would be reasonable for the second appellant to leave the UK and the judge properly directed herself in relation to giving significant weight to seven years residence and "when applying the reasonableness test" [at paragraph [74] of Judge Herlihy's decision]. I am satisfied that the judge would not have conducted the assessment in the way she did if she were of the view that the second appellant already had a grant of leave to remain. I am not satisfied that any error was disclosed in ground 2.
Ground 3
48. Mr Bramble outlined that the judge was incorrect to go on to consider the case outside the Immigration Rules when the judge had found at paragraph [71] that "there are no compelling circumstances in the case that would warrant a grant of leave outside the Rules". However, it is clear from what follows that the judge was considering the first appellant. The judge was bound to consider the circumstances of the first appellant's eldest child and whether or not it would be reasonable for her to leave the UK. Any error that the judge might have made in stating that there were "no compelling circumstances in the case" was not material given the judge's subsequent findings in relation to the first appellant's eldest child and the consequent findings including of the circumstances the family would find itself in if returned to Nigeria, given in particular the vulnerability of the first appellant. There is no error disclosed in the judge's approach.
Ground 4
49. It was argued that in the alternative the judge had failed to give adequate reasons why it was unreasonable for the appellant's eldest child to return to Nigeria. Mr Bramble's arguments were not forcefully made. I am satisfied that the judge provided adequate reasons why it would not be reasonable for the second appellant to leave the UK. At [77] the judge considered the second appellant's best interests and accepted the report of the Independent Social Worker, Peter Horrocks, who found that the second appellant's best interests were weighted towards remaining in the UK in light of her integration, the presence of her father here and the support offered to the first appellant and the family in general in the UK which would not be available in Nigeria.
50. The judge at [81] of her decision found that the first appellant was a vulnerable person with a mental health condition, presently receiving support from external agencies and having great difficulty in coping with the care of her children. She went on to find that this can only be significantly worsened on return to Nigeria where she would not have the support of her mother or sister whom the judge accepted had died. Although the judge went on to find that the first appellant may have the help of her former partner if she were to be removed with the first appellant and her four children, this was by no means certain in the judge's findings.
51. Mr Bramble argued that the grounds cumulatively disclosed an error and that the judge had accepted that the first appellant's immigration history was not an edifying one. He argued that the approach applied was incorrect. This cannot be the case. Although the judge might have set out more clearly that it was the reasonableness test that was being considered, it is clear from her findings read as a whole that that is what is being considered from paragraphs [72] onwards of the decision. The judge quite properly took into account the appellant's appalling immigration history and all that weighed against the first appellant including the public interest in removal, an approach approved by the Court of Appeal in MA (Pakistan) (above).
52. I am satisfied that the judge considered all the relevant factors in the respondent's favour and I note that the respondent did not provide any submission in relation to what factors might not have been considered by the judge in favour of the public interest.
53. It is clear that in finding that removal would be disproportionate the judge was satisfied it also would have been unreasonable for the second appellant to leave the UK (and the judge had properly directed herself as to the appropriate tests at [72] to [74].
54. Although Ms Knorr indicated that there were further grounds on which the appellant had relied before the First-tier Tribunal which were not considered by Judge Herlihy in relation to Article 8 which were not accepted I do not need to consider these grounds as I am satisfied that there are no material errors of law in the judge's Article 8 consideration and the decision, on Article 8 only, must stand.

Conclusion
55. The decision of the First-tier Tribunal Judge to allow the appellants' appeal under Article 8 does not disclose any material error of law and shall stand. The appeal by the Secretary of State in this regard is dismissed.
Notice of Decisions
The decision of the First-tier Tribunal in relation to Article 8 shall stand. The decision of the First-tier Tribunal in relation to the appellants' asylum, humanitarian protection and Article 3 appeal contains an error of law capable of affecting the outcome of the appeal and is set aside.
The decision on the appeal (other than Article 8) will be remade by the Upper Tribunal on 9th November 2016.

Directions
The appellants are to file and serve a consolidated bundle of evidence so that it is received no later than 2 November 2016. The bundle is to separately tabulate: (i) the evidence relied upon before the First-tier Tribunal; and, (ii) the additional evidence that it is now sought to rely upon before the Upper Tribunal including any further evidence relied on by the appellants in relation to the issues cited at the error of law hearing, namely:
the fact that Dr Fairweather has made a referral for the first appellant's daughter to be confirmed as a young carer; and
that, contrary to previous evidence, the school has indicated that there are potentially issues with the first appellant's son.
The appellant's representative to file and serve a consolidated skeleton argument in relation to the issues to be heard de novo.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.


Signed Date: 20 October 2016

Deputy Upper Tribunal Judge Hutchinson



TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.


Signed Date: 20 October 2016

Deputy Upper Tribunal Judge Hutchinson