Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11651/2014

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision & Reasons Promulgated
On 20 March 2017
On 03 April 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
A A
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Faryl for PHRPL
For the Respondent: Mrs Abomi

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. The case impacts on the interests of the Appellants children and therefore the order made previously will continue.
2. The Appellant was born on 5 June 1974 and is a national of Nigeria. There are three dependents in the appeal her elder son (‘E’) who was born on 24 October 2007 and another son (“J”) who was born on 6 July 2009 and a son (“M”)born on 14 April 2016.
3. The Appellant claimed to have come to the UK in 2006.
4. On 29 October 2013 the Appellant applied for asylum in essence because she feared that on return to Nigeria she would be forced into prostitution.
5. On 5 December 2014 the Secretary of State refused the Appellant’s application because her account of the circumstances in which she came to leave Nigeria and the history that she claimed there was no accepted. In relation to EX.1 of Appendix FM it was not accepted that the Appellant had a genuine and subsisting relationship with her two children. In relation to her two children it was in their best interests to remain with her and as she had no leave to remain in the UK it was reasonable for them to leave the UK with her.
6. The Appellants appeal against that decision came before First tier Tribunal Judge Davies who in a decision promulgated on 24 March 2015 dismissed the Appellant’s appeal against the decision of the Respondent to remove her from the UK following the decision to refuse the Appellant’s claim for asylum.
7. I set aside that decision in so far as it related to Article 8 in a decision dated 5 April 2016. The case was adjourned in order for the Appellant to obtain evidence from an educational psychologist in respect of her son “E”.
The Law
8. Where applicable, it is for the Appellant to satisfy me that he or she has an Article 8 private and/or family life in this country which will be interfered with by the decision under appeal. If that is shown, the Respondent must establish that the decision is legitimate, taken in pursuit of a legitimate aim and necessary and proportionate in a democratic society.
9. Section 117A (2) of the 2002 Act provides that where a Tribunal is required to determine whether a decision made under the Immigration Acts would be unlawful under section 6 of the Human Rights Act 1998 it must, in considering ‘the public interest question’, have regard in all cases to the considerations listed in section117B of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014). Section 117 (3) provides that 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).
10. The S117B considerations are as follows:
“(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.
(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.”
11. I have taken into account the guidance given in R (on the application of MA (Pakistan) and Others) v UT (IAC) & Anor [2016] EWCA Civ 705 in relation to the issue of reasonableness( recently affirmed in AM Pakistan [2017] EWCA Civ) 180 in section 117B 6 of the 2002 Act at paragraph 45 it states:
“In my judgment, if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the “unduly harsh” concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6)…..
… and that the only significance of section 117B(6) is that where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted.”
12. As to the relevance of the Respondents policy in relation to Appendix FM and children who have been in the UK for more than 7 years at paragraph 46-47 it states:
“46. Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled “Family Life (as a partner or parent) and Private Life: 10 Year Routes” in which it is expressly stated that once the seven years’ residence requirement is satisfied, there need to be “strong reasons” for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view, they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child’s best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment.
47.Even if we were applying the narrow reasonableness test where the focus is on the child alone, it would not in my view follow that leave must be granted whenever the child’s best interests are in favour of remaining. I reject Mr Gill’s submission that the best interest’s assessment automatically resolves the reasonableness question. If Parliament had wanted the child’s best interests to dictate the outcome of the leave application, it would have said so.”
Evidence
11. On the file I had the Respondents bundle. I had a copy of the reason for refusal letter. The Appellant put in an appeal and a bundle of documents which included a Speech and Language Therapy Report from Emily Wilson dated 15 March 2016.
12. I also had the undated report from Eric Taylor educational psychologist which appears to have been produced in march 2017.
13. I heard evidence very briefly from the Appellant who confirmed that Mr Taylor had got “E”s date of birth wrong. She also stated that she had similar concerns about “J” and she said that the school was taking that up as he needed an assessment. She described him as grumpy and angry. She confirmed that there was no medical evidence before m about “J”.

Final Submissions
14. On behalf of the Respondent Ms Abomi relied on the reason for refusal letter.
15. The best interests of the children were to remain with their mother.
16. There was no evidence to suggest that it would be unreasonable for them to return with her to Nigeria.
17. It was accepted that the two older children had been in the UK for more than 7 years and were therefore qualifying children for the purpose of s 117B6 but the Appellant had not demonstrated that it would be unreasonable for them to return together as a family unit.
18. The report of Mr Taylor adds little weight to the claim. It contained a brief assessment of the child’s abilities. He may be struggling slightly but there was no suggestion of autism or any other developmental condition as previously claimed. There was no evidence of support in UK that would not be available in Nigeria.
19. While the Appellant expressed similar concerns about the second child there was no evidence of any special needs or requirements.
20. There was a functioning education system in Nigeria and support.
21. She urged on me to take into account the public interest considerations.
22. On behalf of the Appellant Ms Faryl relied on the report of Mr Taylor. She said that the author expressed concerns about “E”s social and emotional progress and this was part of a bigger picture of his difficulties.
23. While there may not be significant signs of autism that were sufficient for a diagnosis that did not exclude there may be symptom.
24. The special needs of “E” were not insignificant.
25. She stated that the Appellant had concerns about “J” and while there was no evidence to support those concerns I should give them weight.
26. The three children were all born in the UK and while they had never had leave that was not their fault. The two older children were qualifying children for the purpose of s117B6. In those circumstances, strong reasons were required to remove them: the only reason given was that the Appellant was to be removed. That was not enough. There was no public interest in forcing three children to move to Nigeria and abandon all they knew in the UK.
27. There are concerns about the treatment of children with special needs in Nigeria. There would be no need for a formal diagnosis for them to be targeted.
Findings
13. I have determined the issue on the basis of the questions posed by Lord Bingham in Razgar [2004] UKHL 27
Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private (or as the case may be) family life?
14. I am satisfied that the Appellant and her three children have a family life and private life in the United Kingdom given the length of time they have lived in the UK, their letters of support from friends and the school that the children attend. While the Appellants relationship with the two older children broke down in 2013 she has since had another child “M” although there is nothing on the child’s birth certificate to indicate who is the father of the child and the Appellant did not seek to rely on that relationship to demonstrate family life.
If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
15. I am satisfied that removal would have consequences of such gravity as potentially to engage the operation of Article 8.
If so, is such interference in accordance with the law?
16. I am satisfied that there is in place the legislative framework for the decision giving rise to the interference with Article 8 rights which is precise and accessible enough for the Appellant to regulate her conduct by reference to it.
If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others?
17. The interference does have legitimate aims since it is in pursuit of one of the legitimate aims set out in Article 8 (2) necessary in pursuit of the economic well being of the country through the maintenance of the requirements of a policy of immigration control. The state has the right to control the entry of non nationals into its territory and Article 8 does not mean that an individual can choose where she wishes to enjoy her private and family life.
If so, is such interference proportionate to the legitimate public end sought to be achieved?
18. In making the assessment of the best interests of the children I have also taken into account ZH (Tanzania) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC 4 where Lady Hale noted Article 3(1) of the UNCRC which states that “in all actions concerning children, whether undertaken by … courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
19. Article 3 is now reflected in section 55 of the Borders, Citizenship and Immigration Act 2009 which provides that, in relation, among other things, to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions "are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom". Lady Hale stated that “any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be "in accordance with the law" for the purpose of article 8(2)”. Although she noted that national authorities were expected to treat the best interests of a child as "a primary consideration", she added “Of course, despite the looseness with which these terms are sometimes used, "a primary consideration" is not the same as "the primary consideration", still less as "the paramount consideration".
20. The force of Ms Faryls arguments focus on what is in the best interests of the children in this case in the context of the overall Article 8 assessment. The starting point is that it is in the best interest of children to remain with their parents. In this case, there is no evidence about any relationship existing between the three children and their father or fathers. They appear to be being brought up solely by their mother.
21. There is no suggestion that the youngest child “M” is anything other than a fit and healthy child. The Appellant in her evidence suggests that her middle child “J” has developmental problems but I note that she is not always a reliable historian in relation to her children’s difficulties as paragraph 10 and 14 of her statement dated 4 4 2016 contain an assertion that “E” had been diagnosed as having Downs Syndrome since the hearing before the Ftt which is clearly not the case. In evidence her description of “J”s difficulties was vague and in describing him as ‘grumpy and angry’ she did not differentiate him from many ‘normal children’ who are 7 years old. There was some very limited evidence dating back to January 2015 from the school (page 9) of the bundle to suggest that they had observed ‘many of the same character traits’ in “J” (as in “E”)and while his school in London felt an external assessment of his needs was required this was frustrated when the family were moved to Manchester. There is no further evidence to suggest that “J” has had such an assessment in Manchester or that the school there felt it was required. The youngest child was not yet attending school and therefore his life is largely focused on his immediate family and home and there is little engagement with the wider community. The middle child “J” is 7 and will be 8 in July 2017 and attends mainstream school. Therefore in respect of the best interests of “J” and “M” if I were considering them together with their mother and in the absence of “E” I would be satisfied that there was nothing about their circumstances to suggest that it would be contrary to their best interests to return to Nigeria with their mother in terms of their health or educational needs which could be met in the country of which they were both nationals.
22. However in relation to “E” there is evidence that he has some educational problems albeit the evidence that was finally produced is now a year old. The evidence comes from an Educational Psychologist Eric Taylor dated 2 March 2016. His report arose out of concerns expressed by “E”s school St Luke’s Primary School Year 3 teacher who expressed concerns about his social and emotional progress. Mr Taylor confirmed her concerns were ‘relevant.’ His conclusion was :
“From my observations, I did not notice any significant signs of childhood autism or any other developmental conditions such as ADHD. However I do agree that “E” has additional social and emotional needs perhaps associated with SLCN”
23. Mr Taylor did not indicate what the acronym SLCN stood for nor could Ms Faryl assist but I indicated that I would check on the internet what the letters stood for and it is ‘Speech, Language and Communication Needs”. The strategies identified by Mr Taylor to address “E”s needs are all classroom based ones to be carried out by a teacher in mainstream education.
24. There is a second report from Central Manchester University Hospital Speech and Language Therapy Service dated 1 April 2016 after observations of “E” in the classroom and discussions with his teacher and the Appellant. This was in order to seek advice about his future needs. It reports:
“Mum recognises that “E” struggles with his attention and motivation. She is aware that he can be easily distracted. Mum feels “E” has made progress and feels he will continue to make progress…..
E has difficulties within the classroom with his classroom learning……(he) is currently working below the expected academic levels for his age….he struggled to maintain his focus…….(his) understanding of vocabulary appears significantly delayed for his age”
25. The concluding advice was that “E” required a speech and language therapist to provide the school with general advice. That section of the refusal letter that addressed the education system (paragraphs 41-42 and reproduced in full in the Appellants bundle) is clearly underpinned by the assumption that the children are fit and healthy children with no special needs which in relation to “E” is not the case. It recognises that while education is mandatory until the age of 12 it remains substandard and is only free ‘when practical’ thus fees are often charged.
26. I take into account that the Appellant herself is not well educated and is unlikely to be able to find the type of employment that would be well paid enough for her to seek help outside of the state education system if such help were available, nor is there any basis for me to conclude that she has the support of a well-educated and supportive family who could assist her in accessing any educational support that might be available Nigeria. Therefore I am satisfied from the material even within the Respondents refusal letter that what can be summarised as “E”s non specific speech and educational difficulties would not be provided for in Nigerias state education system such as it is nor could the Appellant find such help privately.
27. Ms Faryl also argues that there is an additional concern about “E” that makes him vulnerable in Nigeria. In the bundle at pages 60 onwards in the COI Report from June 2013 it addresses the risk of children to accusations of witchcraft in Nigeria particularly those with what might loosely be described as mental or educational problems. The fact that at least one state has put into law that it is illegal to stigmatise children as witches makes clear that it is a real problem which appears to be exacerbated by the prevalence of religious and spiritual organisations who profit from these accusations. Paragraph 24.29 of the report states:
“Certain medical conditions, because they are not properly understood, are often considered to be evidence of witchcraft. For example , there is a high prevalence of autism in Nigeria and yet this condition is not widely acknowledged. In consequence, the particular behaviour of autistic children is often interpreted as witchcraft.”
28. Ms Faryl argues that Mr Taylors report, in stating that he did not notice any significant signs of childhood Autism in “E” indicates that there were signs but not sufficient for a formal diagnosis. She argued that such signs even if they fell short of justifying a formal diagnosis could be enough to expose “E” to the risk of being targeted as a witch. I am satisfied that the communication and interaction difficulties identified by Mr Taylor could interpreted in such a way as to expose “E” to a real risk of being identified as a witch and taken together with his educational needs identified above I am satisfied that it is strongly in the best interests of “E” to remain in the UK.
29. I recognise of course that the best interests of a child are not determinative of the proportionality of the Appellants removal.
30. Consideration of the issue of proportionality is ‘consideration of “the public interest question” as defined by section 117A(3) of the 2002 Act. In this case the two older children are qualifying children for the purpose of paragraph 117B6 as they have both lived in the UK for a continuous period of 7 years in that both were born in the UK and “E” is 9 and “J” is 7. The issue I am therefore required to determine is whether it is reasonable to expect them to leave the UK.
31. In making that assessment of reasonableness MA and AM both confirm that I am entitled to take into account and give weight to the wider public interest in immigration control and in this case that would require me to take into account that the Appellant came to the UK in 2006 allegedly in fear for her life in Nigeria but did not make an asylum claim until 2013. Her asylum claim has been rejected and that part of the First tier Tribunals decision remains unchallenged. Her immigration history of remaining in the UK without even attempting to regularise her immigration status for 7 years is therefore a factor that weighs against her.
32. However counterbalancing this consideration is the weight I must accord to the fact that two of the Appellants children have lived in the UK for over 7 years are have established ties within the UK because they attend school here and developed friendships beyond their immediate home life with the Appellant. They have never lived in Nigeria. While there is no evidence of family in the UK there is equally no evidence of any family network of support in Nigeria. The ties established by “E” are, I find, particularly strong because of the social and educational needs that he has which are being addressed by his school with support from the therapy services of the local hospital which I have dealt with above. I am satisfied that I must look at the circumstances of this family as a whole and they stay or return together even if the interest in remaining weighs most heavily in respect of only one of them.
33. In determining whether the removal would be proportionate to the legitimate aim of immigration control I find that the facts underpinning the Appellants life in the United Kingdom particularly those of her children cumulatively outweigh the legitimate purpose of her removal.
CONCLUSION
28. On the facts as established in this appeal, there are substantial grounds for believing that the Appellant’s removal would result in treatment in breach of ECHR.
DECISION
29. I allow the appeal under Article 8.
30. Under Rule 14(1) the Tribunal Procedure (Upper Tribunal) rules 2008 9as amended) the Appellant can be granted anonymity throughout these proceedings, unless and until a tribunal or court directs otherwise. An order for anonymity was made in the First-tier and shall continue.

Signed Date 2.4.2017

Deputy Upper Tribunal Judge Birrell