Tribunal decisions

The decision

IAC-FH-LW-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/03436/2015
HU/05210/2015
HU/04600/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 8 December 2016
On 19 December 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

O M-O (First Appellant)
E M-O (Second Appellant)
M M-O (Third Appellant)
(ANONYMITY DIRECTION made)

Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellants: Mr S Vokes, Counsel
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellants against a decision of the First-tier Tribunal dismissing their appeal against the respondent's decision dated 20 July 2015 refusing them further leave to remain on article 8 grounds.

Background

2. The first appellant ("the appellant") is a national of Nigeria born on 28 May 1970, the second appellant her first daughter born on 3 December 2007 and the third appellant, her second daughter born on 18 September 2012, also Nigerian citizens. The appellant entered the UK as a student on 5 October 2007 and her leave was subsequently extended both under Tier 4 and Tier 1 until 14 May 2012. A further application was made on 11 May 2012 on article 8 grounds, but was refused. A subsequent appeal was dismissed in October 2014 with permission to appeal being refused by both the Upper Tribunal and the Court of Appeal. On 19 April 2015 a further application was made for leave to remain on article 8 grounds.

3. The judge found that certain facts were not in dispute. The appellant had lived in Nigeria until she came to the UK to study for an MSc in Strategy, Custom and Service Management. She had not found a job in which she could use her qualifications but had obtained an NVQ in Health and Social Care. She had worked for a time in a care home but was not working at the date of hearing. Her husband was a Nigerian national who had returned to Nigeria in 2008. He was a certified fraud examiner working for a major international telecommunications company. There were now two children of the family, but, very sadly, a son had died shortly after his birth in 2010. The appellant had a mother, two brothers and three sisters living in Nigeria, most of them in Lagos. Her husband was from the south-east of Nigeria with a father, mother, brothers and sisters, some of whom lived in Lagos, whereas his father lived in south-east Nigeria. They did not have any close relatives in the UK.

4. The judge dealt firstly with an issue of whether there was a safety risk to the family on return to Nigeria arising from the employment of the appellant's husband. It was said that he had given evidence in March 2014 to a Tribunal investigating an allegation of electoral fraud involving a Nigerian politician who then sought his prosecution. It was decided that there were no grounds to prosecute, but the appellant said that her husband continued to be harassed by the politician and his supporters and had to seek refuge in accommodation provided by a local church. It was the judge's finding that the appellant and her husband had fabricated this incident to boost her application, describing it as simply another attempt in a series of attempts designed to prolong her stay in the UK.

5. The judge then went on to consider health issues relating to the appellant. He accepted that she had low mood and anxiety, was being treated with standard anti-depressants and her condition had no doubt been aggravated by the death of her son in 2010. He noted that the appellant had remained in the community and been responsible for the care of her two children. There was nothing to suggest that she was not managing this appropriately. He then considered the situation of the children, noting that they both lived with the appellant and were in education, the second appellant attending first school and doing well and the third appellant attending nursery. He commented that the appellant took an active part in community affairs, including being a parent governor at school, a children's teacher in a local church, assisting at a food bank and helping with care of the elderly in the community.

6. The judge then considered the best interests of the children saying that their best interests required them certainly to remain with the appellant, and to be reunited with their father so they could live together as a family. He had a good job in Nigeria and was obviously settled there. He went on to consider whether it was reasonable for the second appellant to leave the UK. He noted that she had lived all her life in the United Kingdom and was settled at school, but at 8 years of age she could not exist independently of her family and the focus of the life of an 8 year old was usually within the family. He accepted that there would be an upheaval in moving but found it would be reasonable to expect her to leave the UK. In summary, the judge found that the appellants could not meet the requirements of the Immigration Rules ("the Rules") and there were no compelling reasons why their appeal should be considered under article 8 outside the Rules.

The Grounds and Submissions

7. In the grounds it is argued that the judge made a material misdirection of law by finding that the March 2014 incident was fabricated when he said that he would have expected this to have been brought to the attention of the Upper Tribunal in October 2014 when it was considering the previous appeal. It is further argued that he misdirected himself by holding it against the appellant that she had not contacted the Nigerian police to see whether the document at 112-113 was genuine and had failed to consider the documents in the manner set out in Tanveer Ahmed [2002] AR 318. Further, the judge had failed to give adequate reasons for finding that in any event there would be protection and relocation available to the family if there were such a risk.

8. It is further alleged the judge that failed to consider material matters when considering proportionality, including the fact that the appellant was very active in her local community. It was not adequate, so it is argued, for the judge simply to say that he did not doubt any of these things. He also failed to consider the ties built up by the second and third appellants and the fact that the second appellant was born in and had lived in the UK for eight years. He had failed to consider the respondent's policy that strong reasons would be required to refuse a case where a child had been continuously resident for more than seven years, relying on PD and Others (article 8: conjoined family claims) Sri Lanka [2016] UKUT 108. He had also failed to consider the fact that the appellant's son was buried in the UK and she found comfort in visiting the grave. This related directly to the extent of her private life.

9. Permission to appeal was granted by the First-tier Tribunal for the following reasons:

"2. The grounds argue that the judge's assessment of credibility was inadequate, as was his consideration of the evidence as a whole. The grounds also argue that the assessment of private versus public interests was flawed.

3. It is arguable that the judge's consideration of the public interest factors in favour of removal was inadequate. It is also arguable that the assessment of the best interests of the children of the family was not sufficiently reasoned."

10. Mr Vokes submitted that the judge had failed to provide adequate reasons for his finding in relation to the alleged difficulties faced by the appellant's husband in Nigeria and had found that the incident was fabricated without giving any adequate basis for the finding. There were a number of documents in the appeal bundle at 112-168 to substantiate what was said about this risk and it was not sufficient simply to dismiss the documents as forgeries. He argued that the view the judge had taken of these documents coloured his approach to the rest of the evidence. The judge had further failed to take adequate account of the length of the second appellant's residence in the UK referring to the judgment of the Court of Appeal in MA (Pakistan) v Secretary of State [2016] EWCA Civ 705 and in particular to [46] where the court said that when applying the reasonableness test the fact that a child had been in the UK for seven years must be given significant weight when carrying out the proportionality exercise.

11. He also submitted that the judge had failed to take proper account of the appellant's involvement in community affairs as this was directly relevant to the public interest in removal and her integration into British society. Further, the judge had failed to consider the emotional significance of the death of the appellant's son and its relevance to her family and private life in the UK. In summary, Mr Vokes submitted that the judge had failed to give an adequately reasoned decision or take into account all relevant matters.

12. Mr Harrison relied upon the rule 24 response. He submitted that the judge had reached findings properly open to him and had given proper and reasonable consideration to all the relevant factors. Whilst accepting that the judge had not referred to any of the recent authorities on article 8, that had not had any material bearing on his findings and conclusions.

Assessment of Whether the First-tier Tribunal Erred in Law

13. I must decide whether the judge erred in law, such that the decision should be set aside. I am satisfied that he did for the following reasons. The first relates to the way he dealt with the evidence of whether the appellants would be at risk in Nigeria because of the events involving the appellant's husband. The judge was not satisfied that the events described had taken place and found that the appellant and her husband had fabricated the incident to boost their application. He commented that the timing was significant in that it followed from the dismissal by the First-tier Tribunal of the previous appeal but had not been brought to anyone's intention until the present application was made, there had also been no attempt to contact the Nigerian police to see if the document was genuine, the appellant had apparently been able to obtain copies of correspondence between her husband's employer's solicitors and various people and if a member of staff of the company had been threatened and steps taken for his protection, that surely could have been confirmed.

14. The documents in the appeal bundle about this issue run from 109 to 182 and include copy documents from proceedings in the Federal High Court of Nigeria, newspaper articles and e-mails. Whilst this issue is of limited relevance to a claim based on article 8 where no claim has been made in relation to article 3, it may be material in relation to the judge's findings on credibility. I accept Mr Vokes's submission that the judge failed to give an adequate basis for rejecting this evidence and describing it as a fabrication. The judge drew an adverse inference from the fact that it had not been drawn to the attention of the Upper Tribunal in the previous appeal but it would not have been issue in those proceedings as evidence relating to facts occurring after the date of decision can only in vary rare cases have any bearing on whether the Tribunal erred in law and in any event there appears to be no adequate evidence about whether or not it these matters had been brought to the attention of the appellant's representatives.

15. Secondly, I am not satisfied that the judge gave sufficient consideration to the length of the second appellant's residence in the UK. In MA (Pakistan) the Court of Appeal confirmed that when considering the reasonableness test the fact that a child had been in the UK for seven years must be given significant weight when carrying out the proportionality exercise, referring to guidance published in August 2015 in the IDI entitled "Family Life (as a Partner or Parent) and Private Life: 10-Yaer Routes)" where it is expressly stated that once a seven year residence requirement is satisfied there need to be "strong reasons" for refusing leave and noted that after such a period of time a 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 children are very young because the focus of their lives will be on their families and disruption becomes more serious as they get older. Whilst the judge did refer to the focus of young child's life usually being within the family, I am not satisfied that it is clear that the judge gave significant weight to the length of residence or to the need for strong reasons for refusing leave in such cases.

16. The issues normally to be considered when assessing the best interests of a child have been set out in EV (Philippines) v Secretary of State [2014] EWCA Civ 874 as depending on a number of factors such as their age, the length of time they have been in the UK, how long they have been in education, what state their education has reached, to what extent they have become distanced from the country to which it is proposed that they return, how renewable their connection with it may be and to what extent they will have linguistic, medical or other difficulties in adapting to life in that country, and the longer a child has been in this country and the more advanced the stage of his education, the looser his ties with the country in question and the more deleterious the consequences of his return and the greater the weight that falls into one side of the scales. I am satisfied that the judge failed to consider the best interests of the children in the context of these factors.

17. Thirdly, I am satisfied that the judge failed to take proper account of the nature and extent of the appellant's private life in the UK arising from her involvement with the community. Whilst acknowledging that he did not doubt any of these matters, I am satisfied that he did not engage with the argument on the effect of her activities on the public interest as considered in UE (Nigeria) v Secretary of State [2010] EWCA Civ 975. Finally, the judge should have dealt more fully with the impact on the appellant's private lives of the death of her son in 2010. This was a major point being made on behalf of the appellants and needed to be fully considered.

18. For these reasons I am satisfied that the judge erred in law by failing to take all relevant matters into account when assessing the extent of the appellants' private and family lives in the UK, by failing to consider the full significance of the length of residence of the second appellant and by failing to give adequate reasons for rejecting the evidence about the events concerning the first appellant's husband in Nigeria as a fabrication.

19. In these circumstances, both Mr Vokes and Mr Harrison took the view that the appeal should be remitted to the First-tier Tribunal for a full rehearing. In the circumstances of this case I agree that this is the proper course to take.

Decision

20. The First-tier Tribunal Judge erred in law, such that the decision is set aside. The appeal is remitted to the First-tier Tribunal for reconsideration by way of a full rehearing by a different judge. The anonymity order made by the First-tier Tribunal remains in force until further order.

Signed H J E Latter Date: 16 January 2017

Deputy Upper Tribunal Judge Latter