Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00405/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 February 2017
On 27 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ESHUN

Between

MS ABIMBULA KIKELOMO ABIOLA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E Waheed of Counsel instructed by David & Vine Solicitors
For the Respondent: Mr S Walker, Home Office Presenting Officer

DECISION AND REASONS
1. This is a resumed hearing of the appellant’s appeal against the decision of the respondent made on 27 January 2014 to deport her to Nigeria, the reason being that the appellant was sentenced to 30 months’ imprisonment and her partner, Adeola Thomas, was sentenced to four years’ imprisonment following conviction on 27 September 2012 for conspiracy to defraud the Secretary of State for Work and Pensions and the Chancellor of the Exchequer in relation to the payment of social security benefits.
2. The appellant asserted that her deportation would be a disproportionate interference with her family and private life, most particularly because she would be separated from her British-born child.
3. The appellant’s appeal was allowed by First-tier Tribunal Judge Ruth in a determination promulgated on 5 September 2014. In a determination dated 27 November 2014, sitting as an Upper Tribunal Judge, I set aside the judge’s decision in order for it to be re-made. I found that at the date of the judge’s decision the Immigration Act 2014 was in play and there were changes to the Immigration Rules, in particular Immigration Rule 399 dealing with the effect of deportation on a child. I found that the judge did not engage with the changes to the Immigration Rule by way of Section 117 of the 2002 Act and that led to the judge asking himself the wrong question, that is whether or not it would be reasonable to expect the child to leave the UK. The judge’s reason for finding that it would not be reasonable for the child to leave the UK with the appellant was based on the decision in Sanade which was decided in 2012. I found that the law had moved on since Sanade. We had the 2014 Immigration Act and Regulation 15A which now formed part of the 2006 EEA Regulations and that dealt with derivative rights as a result of the decision in Zambrano and Chen. The judge was required to consider the issues in accordance with the changes to the law and the Immigration Rules as at the date of the hearing as held in YM (Uganda) [2014] EWCA Civ 1292 and in accordance with paragraph A362 of the 2014 Rules but failed to do so.
4. UTJ Eshun stayed the case to await the decision of the European Court of Justice.
5. At today’s hearing I had the two cases in question. They were: (1) case C-165/14 which was a referral from the Supreme Court in Spain made on 20 March 2014 and received by the European Court on 7 April 2014 for a preliminary ruling under Article 267 TFEU. (2) case C-304/14 which was the request for a preliminary ruling under Article 267 TFEU from the Upper Tribunal (Immigration and Asylum Chamber) (United Kingdom) made on 4 June 2014 and received at the court on 24 June 2014.
6. Mr Waheed submitted a skeleton argument; at paragraph 13 he set out the principles to be derived from the two decisions issued by the European Court. At paragraph 14 he submitted that the respondent noted that the appellant had a lower risk of re-offending and this has not been challenged by the respondent. At paragraph 17 he identified the defect in the First-tier Judge’s decision by saying as follows:
“It is submitted that the overall assessment of the factual matrix by the FtTJ, in relying, without assessment as to the application, upon the Zambrano point, neglected to account for whether effect on moving to Nigeria upon her child was unduly harsh.”
7. Mr Walker added a further issue. He said the Secretary of State wanted to know what the position was of the family who cared for the child when the appellant was in prison. It was not clear what the family relationship to that person was. He also said that we needed to clarify the family relationships in Nigeria.
8. Mr Walker said that the appellant’s former partner was released from prison in 2013 and he was deported to Nigeria on 1 October 2014. We need to know what contact, if any, there is between father and son.
9. The appellant gave oral evidence. She had submitted a witness statement dated 17 January 2017.
10. She has a son called Adeyinka Thomas who was born on 9 August 2005. She and her son live in Basildon with her cousin, Sunday Dada-Ajewole and his wife. Her cousin and his wife have two children; one aged 22 years who is at university and another who is aged 15 years. She confirmed that whilst she was in prison her son Adeyinka was cared for by Oladapo Awotunde. She said this lady’s husband is related to her son’s father on his mother’s side.
11. The appellant said that her son has never visited Nigeria. He likes English food which she cooks every Sunday. Her son is 11 years old and is in the upper grade in his studies. He has lots of friends and often talks about Carlos. He plays football and rugby with the school team ever since they moved to Basildon in 2014 when she was granted immigration bail.
12. She said that her son is asthmatic. When they lived in London he was admitted twice to Homerton Hospital for two days because he had breathing problems. Whilst she was in custody there was no issue with her son’s health. She purchases her son’s clothes with money given to her by Sunday. She does not have any relatives in Nigeria.
13. She said that she ended the relationship with the father of her son when she went to prison. Her son has no contact with him and does not desire to have contact with him.
14. She has a close relationship with her son. She encourages him to stay clear of prison. She helps him with his schoolwork. They go out together and to church together. Her son would not be able to adapt to life in Nigeria. She would not have money to pay for his education or healthcare. She would not have a job or a home in Nigeria. Her son would not be able to leave his friends behind. He has eaten Nigerian food. He understands Yoruba which is her language. They speak Yoruba at home. Her son however communicates with her and the family in English.
15. Under cross-examination the appellant said that Dada–Ajewole is her cousin. She identified a passport photograph as that of Sunday’s wife. Sunday’s mother and her mother are first cousins. She lived with them when she had accommodation problems in early 2000 before her son was born. She started living with them again when she was granted bail.
16. She said that Oladapo Awotunde was the lady who cared for her son when she was in prison. This lady’s husband has cancer and has moved to live outside London. Consequently, she is not able to get hold of Awotunde. Awotunde’s husband is related to her ex-partner. She last spoke to Awotunde last year. It was Awotunde who told her that her ex-partner had moved to Nigeria. She last spoke to her ex-husband before they both went to prison. He used to send her messages about her son. He wanted to know whether she had written to their son and how he was.
17. The appellant said that Sunday supports her financially in the UK. She did not know if he would continue to do so when she is in Nigeria, although she thought he would not be able to. She said Sunday goes to Nigeria to attend the parties of friends. He went with his wife to his father-in-law’s in 2015 or 2016. She said that besides Sunday she has no other relatives in the UK. Sunday’s brothers and sisters live in Nigeria. His mother is deceased.
18. The appellant said that her son does not ask about his father. Before they went to prison, the son’s father used to visit them. They were not married. They were living separately. He spent most weekends with her and the child until they went to prison. She does not discuss her time in prison with her son because he gets upset by it. Before she had her son she worked until she lost her job in 2009. The funeral her cousin attended in Nigeria took place in Ogun State. She is not from this state. She is from Lagos. Her former partner she thought was also from Lagos. She did not know her former partner when she was in Nigeria.
19. The second witness to give evidence was Adeyinka David Thomas, the appellant’s son. He confirmed that he was born on 9 August 2005 and is a British citizen. He relied on his witness statement dated 6 February 2017. He confirmed that he lived in Basildon with his mother, uncle and aunty and their daughter aged 15 years old. The language spoken at home is English and Yoruba. He personally speaks English.
20. He attends De La Salle School in Basildon. He is in year 7L. Science is his favourite subject. He wants to be a scientist and a part-time rugby player. He loves PE. He is in the highest set for all the subjects in school.
21. In his statement at paragraph 8 he had listed the names of his friends. He said that most of his friends were English or of mixed parentage. His favourite food is pizza. Sometimes he and his mother watch films and TV programmes together. The news he hears of Nigeria is of killings and kidnappings. If he were to go to Nigeria with his mother, he would miss everything about the UK. He was born here. He is asthmatic and sometimes gets an asthma attack. That can be dealt with by using an asthma pump which needs to be charged about every three months.
22. Adeyinka said he last spoke to his father when he was released from prison.
23. Under cross-examination Adeyinka said he spoke to his father on the phone. He believed his father was in Nigeria. His mum told him this. He has lived with his uncle Sunday for about three years now. He remembered the lady he used to live with when his parents were in prison. He called her aunty. He does not see her anymore. He last saw her a few years ago. Apart from his uncle Sunday, he did not really know about other relatives in the UK. Before his parents went to prison they lived together in North London, Stamford Bridge and Clacton.
24. He visited his father in prison. His uncle’s friend took him to visit his father in prison once or twice. He has not heard from his father since he was deported to Nigeria. He has never thought of speaking to him. His aunt told him that his parents were in prison.
25. I then heard submissions from the parties.
26. Mr Walker relied on the respondent’s Reasons for Refusal Letter. The respondent’s reason for wishing to deport the appellant was because of the seriousness of the crime and most importantly the public interest concerning the crime and their ties to Nigeria. Today’s evidence indicates that the former partner was now in Nigeria. His son had contact with him when he came out of prison in 2013/14. The appellant and her son live with their first cousin who has visited Nigeria. Her son has knowledge of Yoruba which is widely spoken in Nigeria. She is supported financially by her first cousin. There is no evidence that he would not continue to do so if she returned to Nigeria with her son. Mr Walker submitted that the appellant’s cousin Sunday with whom they live has cared for the appellant and her son since she was released from prison. The Secretary of State would say that the information in the Reasons for Refusal Letter of 2014 was not accurate in saying that there were no other family members who could care for the appellant and her son. When the appellant was in prison her son lived with a relative of her former partner. In the circumstances he submitted that it would not be unduly harsh for the appellant to return to Nigeria with her son, with the support of her cousin. Alternatively Adeyinka could continue to live in the UK with his uncle.
27. Mr Waheed relied on his skeleton argument.
28. In the skeleton argument, paragraphs 5 and 6, he identified the error of law which the UTJ said the First-tier Tribunal had made. At paragraph 7 he said the UTJ had adjourned the appeal to await the decision of the European Court of Justice on the issue of whether a Member State can expel from its territory a non-union person who is the parent and primary carer of a child because the parent has a criminal record in the country where the request is made.
29. At paragraph 8, he said the ECJ promulgated their judgement in SSHD v CS (Case no C-304/14) and determined that:
“...in exceptional circumstances a Member State may adopt an expulsion measure provided that it is founded on the personal conduct of that third – county national, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that Member State, and that it is based on consideration of the various interests involved, matters which are not for the national court to determine.” (Para 50 of the judgment).
30. He said at paragraph 9, “the ECJ defined the relevant fundamental interests as being public policy and public security”. The ECJ defined the former as
“the existence, in addition to the disturbance of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.” (paragraph 38 of the judgment).
31. The ECJ defined the latter as covering
“both the internal security of a Member State and its external security and that, consequently, a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful co-existence of nations, or a risk of military interests... the fight against crime in connection with drug trafficking as part of an organised group... or against terrorism.” (paragraph 39 of the judgment).
32. At paragraph 12, he said that the ECJ determined that any conclusions based upon
“the criminal record of the person concerned... a specific assessment of all the current and relevant circumstances of the case, in the principle of proportionality, of the best interests of the child and of the fundamental rights whose observance the (ECJ) ensures.” (paragraph 41 of the judgment).
33. At paragraph 13 Mr Waheed set out the list of criteria recited by the ECJ. In respect of the appellant, he submitted that the criteria include
(i) the personal conduct of the individual concerned being:
(a) the extent to which the third country national’s criminal conduct is a danger to society; and
(b) any consequences which such conduct might have for the requirements of public policy or public security of the Member State concerned;
(ii) the length and legality of his residence on the territory of the Member State concerned;
(iii) the nature and gravity of the offence committed;
(iv) the extent to which the person concerns is currently a danger to society.
In respect of the child the criteria are:
(a) the age of the child at issue;
(b) the state of the child’s health;
(c) the child’s economic situation;
(d) the child’s family situation, and
(e) the extent to which the child is dependent upon the parent.
34. Mr Waheed submitted that the child benefits from the benefits of the NHS for his health. He is asthmatic and uses asthmatic pumps. He has had episodes which necessitate hospital care. As to their economic situation, the child receives support from the family with whom he and his mother resides. The son no longer has contact with his father. Maybe he would want to speak to the father but he has shown disinterest with his father. The child was born and bred here. He is well-integrated and has friends who are of a cosmopolitan mix. He has been exposed to the English culture where English is his natural language. He enjoys sports and is in the upper grade at school. He may understand some Yoruba but does not speak it. Returning him to Nigeria with his mother would retard his progress and ambition to become a scientist and a part-time rugby player. The Nigerian culture will be alien to him as it is not a country he has visited.
35. Mr Waheed relied on ZH (Tanzania) which concerns removal, not deportation, but he said the principles concerning the child are common to both. He would ask the Tribunal to agree with him that the child should remain in the UK and that it would be in his best interests to do so. The sins of his parents should not be visited upon him. He is an innocent party to his parents’ crimes.
36. In respect of the appellant, he accepted that the First-tier Judge accepted wider consideration than would be permitted under CS as regards the deportation of the appellant. The judge focused on matters wider than personal conduct that is the public interest and deterrent. CS tells us to focus on the personal conduct of the appellant and he would ask the Tribunal to adopt a narrow approach.
37. Mr Waheed submitted that the evidence we heard today was credible and reliable. Applying CS the appeal can be allowed.
Findings
38. In this case the error of law made by the First-tier Judge has been identified by Mr Waheed at paragraph 6 above. The ECJ in their decision in case number C-304/14 has set out the criteria by which a case such as this must be determined. The criteria were set out by Mr. Waheed at paragraph 13 of his skeleton argument and reproduced at paragraph 33 above.
39. There is no doubt and it has not been challenged that the offence committed by the appellant was as described by the First-tier Judge “the most serious case of benefit fraud ever uncovered” and was “eye-watering criminality”. On 27 September 2012 the appellant was sentenced to two years and six months’ imprisonment. Her partner was sentenced to the same crime of serious benefit fraud and he was given a seven-year prison sentence which was later reduced to four years.
40. The First-tier Judge noted that the appellant had a low risk of re-offending, and that finding has not been challenged by the respondent. Consequently, I accept Mr Waheed’s submission that the appellant does not represent a threat to public policy and public security.
41. Since her release from prison in 2012, the appellant has been living with her son at her cousin’s family home in Basildon. There was no evidence of any further criminality or bad behaviour on the part of the appellant.
42. I found the evidence of the appellant and her son credible and reliable. The appellant’s son was born in the UK on 9 August 2005. He is 11 years old. He gave very credible evidence about his life in the UK, his schooling, his education, his health and the friends he would have to leave behind if he were to accompany his mother to Nigeria. In his statement, he said that his mother means so much to him and he is aware of the fact that she was sent to prison in 2012. This made him lose his friends in London before he went to Basildon. He would not want to lose his friends again for Nigeria as they are the family he now has.
43. The appellant son is doing well in his year group. He wants to be a scientist and part-time rugby player. Returning him to Nigeria with his mother would certainly not enable him to achieve his ambitions. I accept Mr Waheed’s submission that the child should remain in the UK and that it is in his best interests to do so. At least he has one parent here to care for him. The sins of the parents should not be visited upon the appellant. He is an innocent party to his parents’ crimes.
44. In the light of the credible evidence and applying CS, I find that it would be unduly harsh for the appellant to return to Nigeria with her son.

Notice of Decision
45. Accordingly I allow the appellant’s appeal.
No anonymity direction is made.

Signed Date: 23 March 2017

Deputy Upper Tribunal Judge Eshun