Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: DA/00916/2013
DA/00917/2013

THE IMMIGRATION ACTS

Heard at Manchester
Determination Promulgated
On 24 October 2013
On 19 December 2013

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

[M J] (first appellant)
[D O] (second appellant)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr B Chimpango, Crown & Law Solicitors
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellants, [MJ] and [DO], were born respectively on 28 May 1983 and 7 November 2005 and are citizens of Nigeria. The first appellant is the mother of the second appellant. I shall refer to the first appellant as “the appellant” in this determination.
2. The appellant claims to have entered the United Kingdom in June 2004. She attempted to travel from the United Kingdom to Canada using a forged travel document in June 2005 and was convicted in the same month for an offence arising out of that conduct to a term of imprisonment of twelve months. The Crown Court judge recommended that she be deported. In December 2005 the appellant made a claim for asylum which was refused by the respondent and her appeal against that refusal dismissed in April 2006. On 26 January 2007, a decision was made to deport the appellant to Nigeria. Her appeal against that decision was dismissed and an application for permission to appeal to the Court of Appeal refused. Her appeal rights were exhausted by the end of June 2007. At that point, the appellant absconded. In June 2011, the representatives wrote to the respondent seeking leave for the appellant to remain in the United Kingdom with her son, who had been born in this country. Those representations were treated by the respondent as an application to revoke the deportation order, an application which was refused by the respondent. The appellant appealed to the First-tier Tribunal (Judge Lever and Mrs Hussain, non-legal member) which, in a determination promulgated on 8 July 2013, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
3. The appellant claimed that she had (as the Tribunal noted) effectively been trafficked for prostitution in the United Kingdom through the agency of an aunt. The appellant told the First-tier Tribunal that “her son would be greatly disturbed in his upbringing [if he were removed to Nigeria]” and that “she also stated she would be in danger from her aunt who still lived in Nigeria”.
4. The Tribunal, relying on Devaseelan [2004] UKAIT 000282, found that no part of the appellant’s claim regarding her fear of return to Nigeria was reliable. The grounds of appeal to the Upper Tribunal makes no reference whatever to the findings of the First-tier Tribunal as to asylum/Article 3 ECHR. The Tribunal had noted that there had been no fresh evidence put before it and that a previous Tribunal in February 2007 had found the appellant to have been an untruthful witness. I have not disturbed the Tribunal’s findings or conclusions in relation to asylum/Article 3 ECHR.
5. The grounds of appeal to the Upper Tribunal concern Article 8 only. The grounds assert that the Tribunal had failed to consider the nature of the offence of which the appellant had been convicted; the lack of danger which she offered to the community at large; the fact that the offence had been committed more than seven years ago (see Uner v Netherlands [2006] ECHR 464 10/99).
6. I do not find that those grounds have merit. The Tribunal properly considered all the relevant facts in reaching its determination. The Tribunal was well aware of the nature of the appellant’s offence and the time when it had been committed. The Tribunal properly noted the appellant’s “significantly poor” immigration history and the public interest concerned with her removal to Nigeria. At [32], the Tribunal wrote:
There is a history of her deliberately breaking the law and when the circumstances suit her evading the law altogether. Further, when it suits her she is prepared to play the system and delay matters by repeated appeals and unfortunately has been allowed on more than one occasion to get away with such behaviour. There has never been any merit in her position in the UK or any lawful basis for her position in the UK. There is no mitigation in terms of having contributed positively in any way even though her initial situation may have been unlawful. She has been simply from start to finish a financial drain on the country and it is important that the rights of citizens in a democratic society to uphold and expect to be upheld the proper immigration controls precisely applies to this type of case.
7. It was open to the Tribunal to conclude that the various factors weighing in favour of the appellant (the fact that her crime had not been one of violence or of a sexual nature and had been committed a number of years ago) were outweighed by the public interest favouring her removal.
8. I also find that the Tribunal did not err in its treatment of the second appellant in the context of the Article 8 ECHR appeal. Quite properly, the Tribunal examined Section 55 of the Borders, Citizenship and Immigration Act 2009. At [33] it wrote:
If we examine Section 55 … which seems inevitable in each and every case the interests and welfare of the child in our view are entirely clear. Firstly they are to remain with his mother who should be removed to Nigeria. Secondly they are to provide the child with the potential opportunity of knowing members of an extended family. Whether the appellant has family in Nigeria is difficult to say because she has been found to be entirely without credibility in the past. However, it is clear she has no family in the UK. Therefore if the second appellant is to enjoy knowledge of or benefit from any extended family members it is far more likely to be in Nigeria than by remaining in the UK. Thirdly, the second appellant is entitled to grow up within his own country and to experience and enjoy the culture, customs, religion and background of his own country rather than an alien country. There was no reason to suppose he cannot gain a good education in Nigeria and what he makes of that education is a matter for his own character. Both appellants are in good health and accordingly in all the circumstances it is entirely proportionate that they should be removed immediately to Nigeria.
9. I consider that the Tribunal has, in that paragraph, dealt with all the relevant factors which fell to be considered as part of the Section 55 assessment. The decision was one for the Tribunal to make and I can see no reason in law to interfere with it.
10. So far as the “freestanding” appeal on Article 8 ECHR grounds is concerned, therefore, I find the Tribunal did not err in law in its analysis or approach.
11. A problem did, however, occur in the Tribunal’s consideration of the Immigration Rules. Granting permission, Judge Deans was of the opinion that:
It is arguable that the panel was wrong not to consider whether the son could benefit from paragraph 276ADE(iv), particularly as the respondent’s reasons for refusal letter as to the application of this provision appears to be based on misapprehension as to his age and length of stay in the UK. Arguably, if the son were to qualify under paragraph 276ADE this would affect the mother’s position under Article 8.
12. The position of the second appellant under 276ADE was addressed in the respondent’s refusal letter of 24 April 2013:
In order for your submission to be considered under paragraph 276ADE of the Immigration Rules a full application should have been submitted. As you have not submitted an application on the private life grounds (sic) this Rule does not apply to [DO]’s case.
In any case, even if he were to submit an application, [DO] would not qualify under paragraph 276ADE. He is under the age of 18 but at the date of this decision he has not lived in the United Kingdom for at least seven years. Furthermore he falls for refusal under Section S-LTR 1.6 due to his association with his mother who is a person whose deportation has been ordered as being conducive to the public good.
13. That part of the refusal letter is problematic for a number of reasons. First, the second appellant was born in the United Kingdom in November 2005 and he had, therefore, completed seven years of residence by November 2012. Secondly, the letter refers to an now deleted version of paragraph 276ADE; at the Upper Tribunal hearing, the parties agreed that the rule had been amended with effect from December 2012 and now provides that an applicant for leave to remain on the grounds of private life in the United Kingdom must be “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” [my emphasis]. Thirdly, there is the suggestion in the refusal letter that the appellant should be refused under S-LTR 1.6 of Appendix FM (“the presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR 1.3 to 1.5) character associations and other reasons make it undesirable to allow them to remain in the UK”). To apply that provision to a young 8-year-old child because of his “association” with his own mother would appear to be at odds with the observations of the Supreme Court in ZH [2011] UKSC 4 that minors are not to be penalised for the misdemeanours of their parents. To suggest that the second appellant’s presence in the United Kingdom is “not conducive to the public good” because he happens to be the son of the first appellant is, in my opinion, unreasonably harsh.
14. At [29], the Tribunal wrote:
Neither the appellant nor her son qualified to remain in the United Kingdom under the terms of Article 8 as set out in the revised Immigration Rules effective from July 2012.
15. That statement is not correct. What the Tribunal should have done is to have considered the amended version of paragraph 276ADE(iv) which was in force by the date of the hearing before it in July 2013. The failure of the Tribunal to identify the “paragraph 276ADE” point and determine the appeal with the correct provision in mind constitutes an error of law. I have, therefore, set aside the determination. For the reasons I have given above, the Tribunal’s findings and conclusions as regards asylum, Articles 3 and 8 ECHR are preserved. The only matter for the Upper Tribunal to determine is the application of paragraph 276ADE(iv).
16. I am satisfied that the second appellant is under the age of 18 years and has lived continuously in the UK for at least seven years. The question then is whether it would be reasonable to expect the appellant to leave the United Kingdom. I find that it would be reasonable for the following reasons. First, I find that the First-tier Tribunal has carried out an adequate and sound analysis of the facts in determining the appeal under Article 8 ECHR grounds. As I have recorded above, what the Tribunal says regarding Section 55 is also sound. That analysis (carried out as a primary consideration in any appeal involving children resident in the United Kingdom) must, in turn, have a bearing on the subsequent assessment of the reasonableness of the second appellant leaving the United Kingdom. Given that it is in the best interests of the second appellant to travel to Nigeria with his mother then it is likely that such a course of action will also be reasonable. It is difficult to imagine circumstances in which it would be in the best interests of a child to leave the United Kingdom but not also reasonable for him to do so.
17. There are, of course, additional considerations. Paragraph 276ADE(iv) addresses the position of a child who has been in the United Kingdom for seven years. For the second appellant in the present appeal, that period represents the entirety of his life; he has never lived anywhere else. That fact must be a consideration in determining whether his removal is reasonable. However, notwithstanding that observation, I return to the First-tier Tribunal’s Section 55 assessment. I acknowledge that the second appellant’s life chances and material circumstances may be better in the United Kingdom than in Nigeria but he will remain with his mother and there is no indication that they will be destitute. Having regard to all the circumstances, I find that the second appellant should not acquire leave to remain in the United Kingdom on the grounds of his private life since it is reasonable to expect him to leave the United Kingdom with his mother.
DECISION
18. The determination of the First-tier Tribunal promulgated on 8 July 2013 is set aside. The Tribunal’s findings as regards asylum, Articles 3 and 8 ECHR and humanitarian protection are preserved. I have remade the decision in respect of the Immigration Rules. The appeals are dismissed.

Signed Date 20 November 2013

Upper Tribunal Judge Clive Lane