Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00808/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th October 2016
On 12th October 2016

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

EYIOWUAWI ANUOLUWAPO TAJUDEEN
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr O Ngwuocha of Counsel, instructed by Carl Martin Solicitors
For the Respondent: Ms Z Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The appellant is a citizen of Nigeria born on 15th May 1971. He came to the UK as a student in 2005. He had an extension of leave to remain in that capacity until 31st July 2008. He made an out of time application for further leave as a student in August 2008 but this was refused on 10th January 2010. On 27th April 2015 the appellant made a human rights application to remain in the UK, which was refused on 5th June 2015. He was by this time married to a citizen of Nigeria who is also an over-stayer in the UK, since she entered as a visitor in 2007 and was not granted an extension of leave thereafter. They have four children ZT born in June 2005 (in Lagos), JT born in the UK in August 2007, AT born in the UK in November 2009 and IO born in September 2013. His appeal against the decision to refuse his human rights claim was dismissed by First-tier Tribunal Judge Pullig in a determination promulgated on the 5th April 2016.
2. Permission to appeal was granted by Judge of the First-tier Tribunal Nicholson on 5th September 2016 on the basis that it was arguable that the First-tier judge had erred in law in making unclear findings as to whether it was reasonable to expect the two older children (who had been in the UK for more than 7 years) to leave the UK, which was arguably material given s.117B(6) of the Nationality, Immigration and Asylum Act 2002.
3. The matter came before me to determine whether the First-tier Tribunal had erred in law.
Submissions - Error of law
4. Mr Ngwuocha relied upon the grounds of appeal. He was not familiar with R on the Application of MA (Pakistan) & Ors v Upper Tribunal (Immigration and Asylum Chamber) & SSHD [2016] EWCA Civ 705 so he was given time to read this decision, which I advised him was highly relevant to this matter. He argued, in summary, that there was insufficient appreciation of the fact that the two older children of the appellant had lived in the UK for seven years and to their best interests and to the reasonableness of their being expected to leave the UK, and no specific consideration as to whether this qualified these children under paragraph 276ADE (1)(iv) of the Immigration Rules in their own right.
5. Ms Ahmad argued, in summary, that although there had been a failure to look at the appeal under the Immigration Rules ultimately all of the correct questions had been asked and all of the relevant material considered in concluding it was not a breach of Article 8 ECHR to require this family to leave. It had been appreciated that it was in the best interests of the children to remain in the UK with their parents and weight was given to their seven years of residence, however ultimately it was proportionate to require the children and their parents to leave. The decision was entirely in keeping with the guidance given by the Court of appeal in the decision in MA (Pakistan).
Conclusions - Error of law
6. The First-tier Tribunal erred in law by failing to consider whether the appellants qualified under the Immigration Rules, and moving immediately to a consideration outside of the Immigration Rules in the findings section of the decision at paragraph 60 onwards. There is no concession that the cases were not argued under the Immigration Rules recorded in the submissions for the appellants. There is no explicit finding as to whether it would be reasonable to expect the two child appellants, ZT and JT, to leave the UK when they had more than seven years residence in the UK at the time of application to leave, and thus could potentially have qualified under paragraph 276ADE (1)(iv) of the Immigration Rules.
7. There is however consideration as to whether the appellants could succeed under s.117B(6) of the Nationality, Immigration Asylum Act 2002. In relation to this provision the First-tier Tribunal found that ZT had spent nine years in the UK and JT eight years in the UK and that it is in their best interests that they remain in the UK receiving the education they current get here, see paragraph 73. Whilst this is said to be only one factor in the overall balance at paragraph 79 of the decision, at paragraph 80 the First-tier Tribunal gives the "circumstances and best interests" of ZT and JT "very considerable weight" in deciding whether it was proportionate to require them, and their family, to leave. Also at paragraph 65 their presence in the UK for at least seven years is described as "a serious factor".
8. The Court of Appeal in MA (Pakistan) concluded at paragraph 13 that the tests in paragraph 276ADE(1)(iv) of the Immigration Rules and s.117B(6) of the Nationality, Immigration and Asylum Act 2002 are similarly framed, and that whether the child can reasonably be expected to leave should be approached in the same way in each context. Thus if the analysis under s.117B (6) is correctly conducted by the First-tier Tribunal there will be no material error of law.
9. MA (Pakistan) ultimately, in the context of the decision in MM (Uganda) v SSHD [2016] EWCA Civ 450, holds at paragraph 46 that a child's seven year period of residence should be seen as a starting point that an appellant should succeed under these provisions "unless there are powerful reasons to the contrary". It is also said that "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", see paragraph 46 of the decision. It is clear from paragraph 49 of the decision in MA (Pakistan) that it will not be proportionate to remove the family/ reasonable to expect the children to leave unless there are "powerful reasons to the contrary". It is clear from the extract from EV (Philippines) cited at paragraph 48 that such powerful reasons might include the poor immigration history of the parents in overstaying, particularly where there were not overwhelming factors making it in the child's best interests to remain in the UK but where this is simply the case on balance.
10. In the light of the guidance provided in MA (Pakistan) I do not find that the First-tier Tribunal has materially erred in law. It was clearly appreciated that the best interests of the children were to remain in the UK given their period of residence and engagement with their education in this country. Their over seven years' period of residence was given weight, and their best interest very considerable weight in considering the proportionality of their removal. This was not a case where any family member had any health problems or other special needs, or any particular reasons other than inferior education and poverty in the country of origin were identified as factors in the children's best interests in staying in the UK. It was a case where the First-tier Tribunal found that the parents would be able to find work and accommodation in Nigeria to provide for their children given their educational qualifications. It was not believed that the family would be destitute if returned to Nigeria, and these findings, at paragraph 78 of the decision, have not been challenged at irrational in any way. It is also a case where both parents had poor immigration histories: both had overstayed for many years (see paragraph 75 (1) of the decision).
11. As is said at paragraph 74 of MA (Pakistan), when the Court looked at the challenge to the decision in MA itself: "It may be that other judges would have struck the balance differently, but the question is whether this judge reached a conclusion which was open to him. Given that he was required to have regard to the wider public interest in effective immigration control, I do not think that he did." The decision I reach in this appeal is likewise that the First-tier Tribunal could lawfully reach the conclusion that the child appellants with more than seven years residence could reasonably be expected to leave the UK on the current interpretation of this test.
12. This decision would of course be different if the interpretation of paragraph 276ADE (1)(iv) of the Immigration Rules and s.117B(6) of the 2002 Act which Lord Justice Elias would have favoured (and sets out at paragraph 36 of MA (Pakistan), absent his decision that it was ultimately correct to follow MM (Uganda), is found by a higher court to be correct.

Decision:

1. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

2. I uphold the decision of the First-tier Tribunal dismissing the appeal of the appellants.

Signed: Fiona Lindsley Date: 12th October 2016
Upper Tribunal Judge Lindsley