Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03684/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
Heard on 6th December 2016
On 20th December 2016
Prepared on 7th December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

MS SUSAN NANGONZI
(Anonymity order not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms G. S. Peterson of Counsel
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS

The Appellant

1. The Appellant is a citizen of Uganda born on 21st of March 1969. She appeals against a decision of Judge of the First-tier Tribunal Turquet sitting at Hatton Cross on 16 June 2016 who dismissed the Appellant's appeal against a decision of the Respondent dated 21 July 2015. That decision was to refuse the Appellant's application for leave to remain made on Article 8 grounds.

2. The Appellant entered the United Kingdom with entry clearance as a family visitor on 10 October 2002 with leave valid until 7th of April 2003. On 26th of May 2004 her partner Michael Kintu ("Mr Kintu") arrived in the United Kingdom with a visit visa valid until 24th of November 2004. The parties began their relationship in October 2004 and on 28th of April 2006 the couple's daughter J was born in the United Kingdom. Mr Kintu's application for leave to remain dated 5th of August 2010 was refused on 26th of August 2010 and he was served with a notice of removal on form IS151A on 6th of September 2012. The Appellant was served with a similar notice on 11th September 2012. An application made for leave to remain with Mr Kintu and J as her dependents was refused on 6th of July 2013. After the submission of further evidence to the Respondent a fresh decision of 21st of July 2015 was made refusing the Appellant's application for leave. It is that decision which has formed the basis of these proceedings.

3. The Appellant's case was based on her daughter J and on the Appellant and Mr Kintu's involvement in their local church. At the time of the further submissions J was 9 years old. She had never left the United Kingdom. She attended school and was well settled in her studies. She loved swimming and other school activities. She would soon be entitled to be registered as a British citizen. She had a wide circle of friends. She only spoke English. The Appellant and Mr Kintu had been members of the Brooks of life ministry for over 5 years. They were part-time volunteers and served as ushers. The Appellant spoke to teenagers at the church on ways to avoid gangs and she had assisted many young people. The couple had a strong committed relationship. They wished to raise J as a British citizen.

4. The Respondent refused the application, accepting that J had lived in United Kingdom for over 7 years but stating that it was reasonable to expect her to leave the United Kingdom. She would be relocating to Uganda with both her parents who would be able to support her whilst J adjusted to life in Uganda. The Appellant had family members already in Uganda who would be able to assist the Appellant and her family until she was able to support herself. Whilst the Appellant and Mr Kintu had established some form of private life any relationship they had built up had been in the knowledge that they did not have leave to remain and their private and family life could continue overseas. Should the Appellant or her family wish to return to the United Kingdom they could apply for the appropriate entry clearance.

The Decision at First Instance

5. It was argued before the Judge that J met the requirements of paragraph 276 ADE (1) of the Immigration Rules. She was under the age of 18 and had lived in the United Kingdom continuously for over 7 years and was thus a qualifying child. It would not be reasonable to expect her to leave. The Judge rejected this argument at paragraph 28 of the determination where she wrote: "[ J ] would be returning as part of a family unit with her parents to the country of her heritage. She was born in this country when her parents did not have leave. An IS151A notice of removal was issued to them in 2012. She speaks English, the language of Uganda. She is not at a critical point of her education and there is no evidence of health problems. I find it would be reasonable for her to accompany her family back to Uganda."

6. The Judge did not find that the Appellant had demonstrated exceptional circumstances such that the application should be granted outside the Immigration Rules. Both the Appellant and Mr Kintu had come to the United Kingdom with leave as visitors for 6 months but had had no leave since that date. The Appellant had sought to remain as a dependent of her uncle but that application was refused in March 2003, 13 years ago. There was no attempt by the Appellant or her partner to regularise their stay until the application in 2010 which was refused in August 2010. The basis of their appeal was on their daughter's entitlement to British citizenship and not being able to continue her education plus the lack of ties to Uganda. The family could have had no legitimate expectation that they would be allowed to continue living indefinitely in United Kingdom when the parents entered into a relationship and when they decided to start a family. Although the Judge accepted that J had not been to Uganda as she had been growing up in a wholly Ugandan household she would not be returning to an alien culture.

7. The Judge agreed with the Respondent's consideration of the duties under Section 55 of the Borders, Citizenship and Immigration Act 2009 (see paragraph 30 of the determination). She considered that it was in the best interests of a child to be with her parents and J's best interests would be met by being with her parents as a family unit in their home country. The Judge further directed herself in accordance with the Court of Appeal decision in EV (Philippines). In determining whether the need for immigration control outweighed the best interests of a child it was necessary to determine the relative strength of factors which made it the child's best interests to remain here and to take account of any factors that might point the other way. In this case the Judge did not find it was in J's best interests to stay in education in United Kingdom even if that were of a higher standard than in Uganda. It was in J's best interest to return to Uganda with her parents. She would not be leaving behind a parent as no one in the family had British nationality.

8. The Judge proceeded to analyse the case using the step-by-step approach required by the authority of Razgar [2004] UK HL 27. The Judge found the Appellant and Mr Kintu's account of how they had supported themselves in United Kingdom to be vague and unconvincing. Although there was a letter of support from the Bishop of the church it made no mention of any support given to the Appellant. The Appellant had indicated that someone called Edna paid most of their bills but there was no supporting evidence of that. Mr Kintu admitted that he had worked in the United Kingdom until 2010 but was now supported by friends in the church. He had never had leave to work. He was inconsistent when saying on the one hand there was not much money received from the church and then on the other hand that the church was supporting the couple very much. There was no explanation for the lack of supporting evidence for the financial support of the Appellant, Mr Kintu and child. There were no supporting witnesses at the hearing whose evidence could have been tested in cross-examination. Both the Appellant and Mr Kintu had shown utter disregard for the immigration laws of this country. The best interests of the child were not in themselves determinative of the reasonableness or otherwise of expecting the child to leave the United Kingdom. The Appellant had been dependent upon other persons. She had received healthcare and J had been educated at public expense and would continue to receive education if allowed to stay. The public interest in respect of economic self-sufficiency applied.

9. The Judge directed herself in accordance with the Immigration Directorate Instructions regarding the consideration of cases where a child had been in United Kingdom for more than 7 years. The longer a child had resided in the United Kingdom the more the balance would begin to swing in terms of it being unreasonable to expect the child to leave the United Kingdom and strong reasons would be required in order to refuse a case with continuous United Kingdom residence of more than 7 years. In this case the Judge accepted that the parents had a genuine and subsisting relationship with J but it was reasonable to expect J to leave the United Kingdom with her parents. The test of exceptional circumstances was not satisfied in respect of the Appellant such that her appeal could be allowed outside the Rules. The appeal was dismissed.

The Onward Appeal

10. The grounds of onward appeal took issue with the Judge's finding that following the refusal of the Appellant's application in 2003 she had not made any further applications for a considerable period of time until 2010. In fact it was argued the Appellant's evidence was that she had made an application but had not heard back from the Respondent and had had to contact a Member of Parliament. Whilst English was the official language of Uganda it was not "the language of the country". There were multiple languages in use in Uganda of which English was one. J did not speak any other Ugandan language. She was at a critical stage of her education as she was due to complete her primary school education that year and embark on her secondary school education the following year. Engaging in a completely different system of education in Uganda was likely to destabilise her.

11. At the time the appeal was heard J had submitted an application to be naturalised as a British citizen under section 1 (4) of the British Nationality Act 1981 and was for all intents and purposes a British citizen. Subsequently on 15 July 2016 (4 weeks after the hearing) she received her naturalisation as a British citizen. The welfare considerations of the child must rank higher than any other. The Judge had not applied the Upper Tribunal case of PD correctly. It was not relevant that J had grown up in a Ugandan home just as it was not relevant that in PD the child had grown up in a Sri Lankan home. The length of residence in United Kingdom, full integration into UK society, J's age and her minimal ties with Uganda were factors which weighed heavily in her favour. The grounds relied on section 117B (6) of the Nationality Immigration and Asylum Act 2002 that the public interest did not require a person's removal where that person had a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the United Kingdom. The grounds quoted from PD that the parents' appeal in that case could only succeed outside the Rules and therefore there needed to be compelling circumstances to allow that.

12. The application for permission to appeal came on the papers before Judge of the First-tier Tribunal Hollingworth on 28 October 2016. In granting permission to appeal he found it arguable that the Judge's reasoning in relation to the duty under section 55 of the 2009 Act was inadequate. The Judge should have set out fuller reasoning showing the route to her conclusion that it was not in J's best interests to stay in education in the United Kingdom. The Judge should arguably have considered the question of reasonableness in relation to J's departure from the United Kingdom across the entirety of the spectrum embracing the culture and society of the United Kingdom and the educational part of that spectrum given the period of time which J had spent in the United Kingdom having been born here. Further the Judge should have attached greater weight to the eligibility of J for British citizenship which was under consideration at the time of the decision. The Judge had placed excessive emphasis on Uganda being the country of J's heritage without balancing the basis of that conclusion against a full analysis of integration across the spectrum in United Kingdom. The distinction between those factors to be assessed in the wider proportionality exercise in relation to reasonableness had affected the section 55 analysis.

13. The cost of providing education to J was not an issue for J. The Judge appeared to be considering the application of section 55 throughout the entirety of paragraph 33 of the determination [where the Judge had considered J's education and that she would be living in the country of her heritage with both her parents]. Given the length of time J had spent in the United Kingdom the Judge had provided an insufficient analysis of the conclusion that Uganda was the country of J's culture and heritage and she would easily integrate into Uganda. J was 10 years old and had lived in United Kingdom all her life. She was about to complete a primary school education that never been to Uganda.

14. Following the grant of permission to appeal the Respondent submitted a Rule 24 reply which maintained that the Judge had properly directed herself and the decision to dismiss the appeal should be maintained.

The Hearing before Me

15. Consequent upon the grant of permission to appeal the matter came before me to determine whether in the first place there was an error of law such that the decision of the First-tier Tribunal should be set aside and the decision remade. Counsel submitted a skeleton argument on behalf of the Appellant which contained a chronology. The skeleton argued that the Judge had not properly weighed all the factors inherent in whether it would be reasonable to expect J to leave the United Kingdom. The Judge had made a number of entirely unsupported statements in respect of the child's private life in this country such as that Uganda was the country of J's heritage, that English was the language of Uganda and that J was not at a critical point in her education. By saying that the factors relied upon by J were a wish to continue in education plus a lack of ties to Uganda the Judge fell far short of a proper consideration of the merits of the case.

16. I pause to note here that this summary of what the Judge has taken into account critically omits to mention that the Judge was well aware that the Appellant was also relying upon J's entitlement to British citizenship, see paragraph 6 above. This is an important omission because the appellant has sought to argue (wrongly) that the Judge had not paid any or any sufficient attention to the entitlement to British citizenship. One week [in fact 4 weeks] after the determination of the appeal, the skeleton argument continued, the Respondent had judged that J's connections to United Kingdom was such that she qualified to be naturalised as a British citizen. This was a factor which was given no weight in the analysis of whether it was reasonable for J to be removed to Uganda. The Judge had failed to properly assess the best interests of J or section 117 B (6) of the 2002 Act.

17. In oral submissions Counsel argued that it was difficult for the Tribunal to ignore that after the hearing J was naturalised and she now held a United Kingdom passport. The child's ties to the United Kingdom were not adequately explored. Secondly there was a reasons challenge to the determination based on the finding that J's heritage was entirely Ugandan. J had passed not just the 7-year milestone but the 10-year milestone. Requiring J to leave the United Kingdom would mean abandoning her British citizenship and all that went with it. J's length of residency had not been considered properly. The Judge should have analysed what ties J had to the United Kingdom. There were no family members remaining in Uganda. This case was not just about J's education but all of her activities for example she was the only African member of the swimming team.

18. In reply the Presenting Officer noted that at the date of decision and indeed at the date of hearing J was not a United Kingdom citizen. The Judge could not be criticised for saying that J had Ugandan heritage. Whilst she only held a United Kingdom passport that did not stop J from being entitled to a Ugandan passport. The Judge had applied the ratio of the Court of Appeal decision in MA Pakistan. All of the section 117 B factors had to be considered and this was what the Judge had done at paragraph 32 of her determination (where the Judge had set out the determining factors in the case of EV Philippines). The Judge was entitled to look at the cost to the public funds of J's education when the parents had no right to be here. There was no lack of consideration of the best interests of J. Even if a child's best interests were to remain in this country the case of MA Pakistan made clear that it could still be reasonable to expect a child to go. It was not a trump card that J had now got UK citizenship. Cases involving qualifying children whether they were qualifying because they had been here for more than 7 years or qualifying because they were British citizens were to be treated in a similar way. There were no material errors of law in this determination. If necessary, the Appellant could make a further application based on a change of circumstances.

19. In conclusion Counsel relied on the grant of permission to appeal that the Judge had not properly reasoned her conclusions. J had other ties to United Kingdom besides the acquisition of her citizenship but these had not been analysed.

Findings

20. It was accepted in this case that the Appellant could not bring herself within the Immigration Rules. Although she was in a genuine and subsisting relationship with Mr Kintu, he had no leave to be here either. Both parents had a poor immigration record and had overstayed in this country for several years. The Appellant's claim that she had sought to regularise her stay by making an application before J was born was not accepted by the Respondent who said she had no record of any such application and it was rejected by the Judge at paragraph 29 of the determination. Although the adults claimed to have a close relationship with their church the Judge was evidently sceptical of this evidence for the reasons she gave (not least the lack of supporting evidence) and did not consider that she had been given a truthful account of how the parties were in fact supporting themselves in situation where neither adult had the right to work (see paragraph 36). The case turned entirely on a consideration of the position of the couple's child J who was born in the United Kingdom, has never left this country and is now a British citizen (although as the Respondent pointed out she was not a British citizen at the time of the decision or the date of hearing).

21. Contrary to the argument put forward by the appellant the Judge in fact considered the factors raised on the Appellant's behalf at some length in her determination. She noted the evidence that J had settled well into school, had had educational certificates and was completing her primary school education. The Judge has been criticised for concentrating on the educational aspect of J's welfare to the exclusion of a consideration of J's other ties to this country, that criticism being made both in the grant of permission and in the submissions made to me. I do not consider that point is a fair one. It is clear from the evidence that was given to the Judge that the submissions made about J's best interests concentrated on her education. I was not told of other matters which might be relevant save in the most general terms that as a British citizen J would not be able to access all of the benefits that citizenship confers. That however is different to the Judge being given a list of particular matters besides education which might impact on the case. There was no evidence of health requirements and although there was a vague reference to J having a circle of friends, the Judge noted at paragraph 38 of the determination that there were no supporting witnesses at the hearing. Whilst this remark was made in the context of the Appellant's private life claim and her connection to the church it could equally apply to witnesses giving evidence as to J's ties to the United Kingdom.

22. The Judge could only deal with the case on the evidence that was before her. It was not for her to speculate on what other evidence might exist. Given the concentration on J's education in the evidence and submissions put forward by the Appellant it was inevitable that the Judge would have to analyse the case in that light. The Judge's duty was to consider the best interests of J as a primary concern of the Tribunal. In other words, whilst it was not the primary or paramount consideration it fell to be dealt with first and once established it would become a significant factor to be weighed in the Article 8 balancing act outside the Rules. I pause to note here that the Judge's finding was that it was not unreasonable to expect J to return with her parents to Uganda. The Judge did not find that J would be entitled to succeed under the Rules if she J made an application in her own right. Although the Judge did not refer to the case of MA Pakistan her reasoning in her determination was clearly in accordance with that case. The debate prior to MA Pakistan had been whether in considering whether it was reasonable to expect a qualifying child to leave the United Kingdom one focused only on the child or whether wider considerations could come into play in determining what was or was not reasonable. The wider considerations in this case just as they were in MA Pakistan were the poor immigration records of the parents and the fact that substantial public costs had already been incurred in this case not just in J's education but also the Appellant's health care. Whilst I take the point made in the grounds of onward appeal that a child should not be punished for the sins of its parents, the test of reasonableness is a wide one and a variety of relevant factors will come into play in assessing reasonableness including the conduct of the parents.

23. The key issue relied upon by the Appellant in this case in arguing that her claim should succeed outside the Rules is that her daughter J has now been granted British citizenship and at the date of hearing had satisfied the 10 year qualifying period and was about to be naturalised. It is important to emphasise however that the grant of British citizenship to a child is not a trump card. It still has to be balanced by other factors. The Judge recited the Appellant's contention that J was about to receive her citizenship and that for all intents and purposes was to be treated as a British citizen child. That however was not determinative of the appeal the Judge still had to weigh J's best interests against the other factors in the case.

24. The Appellant disagrees with the Judge's assessment of what are J's best interests in terms of her education. The Judge was aware that Ugandan education might not be equivalent to British education but given the Judges view of J's ties to her Ugandan heritage the Judge was evidently of the view that an education grounded in her parental heritage was more in J's best interests than continuing to reside in this country and receive an education here. That was a matter of judgement for the for the Judge to make and for which she gave her reasons. The disagreement with that conclusion is therefore merely a disagreement not an indication of an error of law.

25. The Judge's view was that J was not at a critical point in her education. She was well aware of how long J had been in this country, that is since birth. Whilst it might be argued that another Judge would have come to a different view on the facts of this case, that two Judges might disagree on the conclusions to be drawn from the same set of facts is not an indication that either is wrong in law. I do not agree with the criticism of the Judges analysis of J's Ugandan heritage. English is an official language of Uganda and J can speak that language perfectly. She would be assisted by her parents in making such adjustments as were necessary to live in a country to which she is entitled to citizenship. Her parents' poor immigration record was a factor which the Judge was entitled to take into account in the balancing exercise when considering Article 8 outside the Rules. The Judge's view was that it was reasonable to expect J to travel with her parents to Uganda. Whilst she cannot be compelled to travel there because of her British citizenship, she will be entitled to return to this country at any time and she is still at an age where much of her focus has been on her life with her parents. The Judge was criticised for not giving weight to J's connections to the United Kingdom but as I have indicated the evidence on this was sparse, neither parent had leave to be here, the evidence of a connection to the church was not accepted and both parents had strong connections to Uganda. The Judge's view that there was an absence of evidence of the parents having a strong connection to the United Kingdom inevitably undermined the concept that J would have strong connections to this country independent of her parents, given her age.

26. Whilst Judge Hollingworth referred to the need for the Judge to consider the question of reasonableness of return "across the entirety of the spectrum" the Judge could only deal with this case on the basis of the evidence that was before her as I have already indicated. I do not consider the criticism made in the grant of permission to appeal to be a fair one. The Judge directed herself appropriately at the various stages both in relation to the EV Philippines factors and in relation to the step-by-step approach required by Razgar. J was not a British citizen at the time of the hearing, she was a child who had passed both the 7-year and the 10-year milestones but the Judge was aware of that and a fair reading of the determination shows that she took J's residence in this country into account.

27. The decision to refuse the Appellant's application for leave to remain was a disappointing one for the Appellant. It may even to a certain extent be a perplexing one given that at the same time that the Respondent was contesting the Appellant's appeal she was also granting British citizenship to J. Nevertheless the issue I have to decide is whether the Judge at first instance was wrong in law. I find she directed herself correctly, she weighed up all of the evidence that was before her and she arrived at a sustainable conclusion even if as I have indicated above another Judge might have arrived at a different one. I therefore dismiss the onward appeal.

Notice of Decision

The decision of the first tier Tribunal did not involve the making of an error of law and I uphold the decision to dismiss the Appellant's appeal against the Respondent's decision.

Appellant's appeal dismissed

I make no anonymity order as there is no public policy reason for so doing.

Signed this 16th day of December 2016

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Judge Woodcraft
Deputy Upper Tribunal Judge

TO THE RESPONDENT
FEE AWARD

As the appeal was dismissed there can be no fee award.

Signed this 16th day of December 2016

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Judge Woodcraft
Deputy Upper Tribunal Judge