Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03686/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27th April 2017
On 28th April 2017

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

MS OLUWATOYIN [A]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Akindele (Defank Solicitors)
For the Respondent: Mr S Kotas (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is an appeal to the Upper Tribunal by the appellant in relation to a Decision of Judge R L Walker in the First-tier Tribunal promulgated on 8th August 2016.
2. The appellant is a citizen of Nigeria. She had made application for leave to remain in the United Kingdom on the basis of her family and private life under Appendix FM and paragraph 276 ADE of the Immigration Rules. The Secretary of State refused the application on 23rd July 2015 and it was her appeal against that decision which came before the First-tier Tribunal.
3. The Judge dismissed the appeal under the Immigration Rules and found that any interference with the appellant’s private and family life was not of such gravity as to engage Article 8 and found the decision proportionate.
4. The appellant sought permission to appeal which was granted by a Deputy Upper Tribunal Judge on 23rd February 2017.
5. In considering the grounds the Deputy Upper Tribunal Judge did not consider the Judge had erred in his consideration of the appellant’s family and circumstances in Nigeria but did consider it arguable that the Judge erred in his consideration of the appellant’s husband’s family members at paragraph 28 of the Decision and Reasons when he held that it was not clear who the family members were with no names or details given, when at pages 87 to 92 of the appellant’s bundle there were letters from the appellant’s sister-in-law, son-in-law and daughter-in-law all with attached copies of the identification pages of their British passports.
6. Further, the Deputy Upper Tribunal Judge found it arguable that the Judge had erred materially at paragraph 41 when he held “with regard to considering the appellant’s Article 8 claims outwith the Immigration Rules I do find that the interference that flows from the respondent’s decision would not be of such gravity as to engage Article 8.” She said that even on the Judge’s own findings, the appellant and her husband had been married since 5 February 2011 and she was his carer until he had a successful kidney transplant in May 2013. It is clear from the jurisprudence (see most recently MM Lebanon [2015] UKSC 10 paragraph 66 that Article 8 is engaged in such circumstances and the question, which the Judge failed to consider, is whether removal of the appellant would be proportionate to the legitimate aim of maintaining immigration control.
7. Permission to appeal to the Upper Tribunal was granted, limited to the ground of appeal identified above which included consideration the appellant’s husband’s extended family in the United Kingdom.
8. It is quite clear that the Judge erred in finding that Article 8 was not engaged. However, the question is whether that error was material to the outcome.
9. In considering the application under the Rules the Judge set out the reasons for refusal by the Secretary of State. The Secretary of State found there to be no insurmountable obstacles to family life continuing outside the UK such that paragraph Ex.1 did not assist the appellant. The Secretary of State accepted that the appellant’s partner had undergone a kidney transplant in May 2013 and that he attends the post-transplant clinic at the Royal London Hospital once every three months for a check-up. However, the medical report submitted dated June 2015 stated that the transplant was successful and that he has had no significant post-transplant complications. The Secretary of State stated he could travel to the UK once every three months for check-ups or have his check-ups completed in Nigeria. There was no evidence to show he was not fit to travel or that he would be unable to receive check-ups in Nigeria. The Secretary of State did not accept that there were any insurmountable obstacles to family life continuing in Nigeria.
10. The Secretary of State in considering paragraph 276 ADE did not believe there to be very significant obstacles to the appellant’s integration into Nigeria. She had spent 43 years in Nigeria including her education and formative years. She had travelled regularly between the UK and Nigeria since 2003 and so it was reasonable to expect her to have a network of family and friends there.
11. The Secretary of State considered whether there were any exceptional circumstances that might warrant a grant of leave to remain in the UK outside the Rules and considered there were not. The Secretary of State noted that the appellant and her partner were undergoing IVF treatment in the UK but considered that such treatment could continue in Nigeria as there were clinics and other centres there.
12. The Secretary of State noted that the appellant claimed to have been in a relationship that was subsisting and genuine with her partner since they met in 2004. It was acknowledged from the documents provided that they had been married and lived together for at least two years. However, the Secretary of State also noted that an application for a certificate of approval for marriage had been submitted by her partner who had intended to marry another Nigerian national in July 2009 who was said to be living with him. In July 2010 he had written to the Home Office declaring that relationship to have broken down.
13. The Secretary of State also noted in the refusal that when the appellant applied for her last visit visa in January 2012 she stated that she was going to “visit my friend” and named a person other than her current partner. There was no mention at all of him. At no time has she applied to enter the UK as a spouse even though she had married her husband on 5 February 2011.
14. The Secretary of State therefore did not accept that the appellant and her husband’s relationship had been subsisting and durable since 2004 as claimed but accepted that it had been subsisting and durable since 2012.
15. The Secretary of State also stated that the appellant and her husband had known at all times that she was only in the UK in a temporary capacity and would at some stage have to leave.
16. The appellant’s case was that the couple met in 2004 when she was on holiday in the UK and they started to live together in 2006. They separated for just under a year in 2009 because of the husband’s affair with the other woman but were reconciled and married in February 2011 since when they have continued to live together.
17. In late 2008 the appellant’s husband was diagnosed with renal failure and put on dialysis. He was retired from his work as a bus driver for Transport For London on health grounds. The appellant then became his carer and in 2010 was trained at the London Royal Hospital on how to handle his dialysis. He was discharged home to her care and it was accepted that he has since had a successful kidney transplant.
18. The appellant and her husband have always wanted to have children and she had undergone three cycles of IVF treatment in which the third attempt was successful. Sadly she lost the baby at almost 6 months.
19. The appellant’s husband entered the UK in 1985 and was granted indefinite leave to remain in 1988. He has only travelled to Nigeria once, in the 1990s, and no longer has any family ties there. His family and life are in the UK.
20. Following his successful kidney transplant he returned to work as a bus driver with TFL. He argued that their ties and life are in the UK now such that it would be impossible to relocate to Nigeria.
21. The Judge set out that he had heard evidence from both the appellant and her husband and heard submissions from the representative.
22. The Judge accepted family life existed between the appellant and her husband although it was certainly not of the longevity claimed. He said that they may well have met in 2004, but were certainly not together in 2009 when her husband sought approval to marry someone else. They accepted before him that this had happened but that they later became reconciled.
23. The Judge also noted the various visa applications made by the appellant in which she had named sponsors other than her husband. He found that there was no satisfactory explanation as to why she had never referred to her husband in her visa applications, particularly the most recent one.
24. The Judge noted the appellant’s immigration history, which indicated her making frequent visits to the UK from 2004 onwards. Her passport indicated visits in 2010, 2011, 2012 and 2013.
25. The Judge noted the appellant’s husband saying that all his family is in the UK and that he has no family or connections in Nigeria. The Judge noted that he had not been specific as to what family and friends he had in the UK and none had attended to give evidence on his behalf. In that he is incorrect. There was evidence in the bundle in the form of letters from his relatives in the UK. However, the Judge was not wrong in saying that no one had attended to give evidence and that his own witness statement gave no substantive information as any ongoing relationship with his family members. It is clear from the witness statements that the appellant and her husband were relying purely on their relationship and family life with each other.
26. The Judge found the appellant had not given any evidence as to what family contact she had in Nigeria but, given the amount of time that she had spent there, concluded that it was reasonable to assume she did have accommodation and family there.
27. The Judge considered the claim that they could not return to Nigeria because of the ill-health of the husband. However, he noted that the medical evidence largely only went up to 2013 and noted that the most recent report of June 2015 indicated that the kidney transplant had been successful and he was subject to regular monitoring but otherwise was well. The Judge also noted the appellant’s husband’s claim to suffer from dizziness but found that he had exaggerated his ill-health because he has returned to work as a PSV driver for which he had acknowledged that he had undergone medical examinations before being approved for return to work. He had been back in full-time employment for 11 months prior to the hearing before the First-tier Judge.
28. The Judge noted there was no claim made by or on behalf the appellant’s husband that his medication was unavailable in Nigeria nor was there any evidence that he could not have his three monthly check-ups in Nigeria and concluded therefore that these were available.
29. The Judge noted the claim that the couple were undergoing IVF treatment. However, the Judge noted also that this had been put on hold and that the appellant is 48 and the husband 52 which meant that they would be unable to obtain IVF on the NHS; a matter which they accepted. The Judge concluded that in any event there was IVF treatment available in Nigeria if she chose to take and pay for it, as she would need to do in the UK.
30. The Judge concluded that there were no insurmountable obstacles, which meant no very significant difficulties that would be faced by either the appellant or her partner, in continuing their family life in Nigeria. The Judge also noted that the appellant had only ever had temporary leave to remain in the UK, a fact that both she and her husband would have been aware of at all times and they could have had no legitimate expectation that the appellant would have an entitlement to remain.
31. The Judge also considered the appellant’s private life but found, unsurprisingly, an absence of significant obstacles to her integration to Nigeria.
32. I asked Mr Akindele what matters the Judge had not considered which could have led to the case being allowed under Article 8, namely a finding that removal would be disproportionate. He said the case could have been allowed depending on the weight the Judge attached to particular circumstances and he argued that the Judge had not taken into account that the appellant had been her husband’s carer when he was acutely ill. That is a matter that the Judge did take into account as it is referred to at paragraph 19. However, that has no bearing on proportionality. She may have been his carer when he was acutely ill but he has not been acutely ill since 2015 and indeed is now well enough to have resumed work as a PSV driver.
33. Whilst the Judge had made an error of fact as to the identity of the husband’s family members in the UK, this was immaterial because the Judge also noted that the appellant and her husband were not relying on those relationships; rather only on their relationship with each other.
34. I conclude that even had the Judge substantively considered Article 8, given the evidence before him and his findings in relation to appendix FM and paragraph 276 ADE there is no possibility that he would have found removal disproportionate on those facts and findings.
35. Accordingly, the appeal to the Upper Tribunal is dismissed.

Notice of Decision

The appeal dismissed

No anonymity direction is made.

Signed Date 27th April 2017

Upper Tribunal Judge Martin