Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03731 /2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 21 April 2017
On 24 April 2017

Before

UPPER TRIBUNAL JUDGE KEKIĆ

Between

OLUWANODUPE OLUWASEUN OJO
(anonymity order not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Adewole of Bloomfield Solicitors
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant challenges the determination of First-tier Tribunal Judge Callow dismissing her appeal on private and family life grounds. She is a Nigerian national born on 28 April 1992 who arrived here illegally as a minor in 2004 and first sought to regularize her stay in August 2012 when she was 20 years old. That application was refused without any appeal in January 2015. The appellant then made another application for leave which was refused on 28 July 2015 and which gives rise to these proceedings.
2. The appellant claims that her entry was arranged by her father and that she resided with him and his partner, Ms Oni, and her two (now adult) children. She maintains that her father left the family home a year or two later; she continued to live there and views Ms Oni as her mother. She has no ties with Nigeria and no information as to the whereabouts of her father or her biological mother. She also claims to have been in a relationship with a Nigeria national, Adekunle Majiyagbe, since July 2014. He has indefinite leave to remain in the UK.
3. The appeal came before First-tier Tribunal Judge Callow at Taylor House on 18 July 2016. He heard evidence from the appellant and her partner. He was satisfied that the appellant had entered the country as claimed (although the date of entry was unresolved) and accepted that she and her partner had an ongoing relationship and intended to marry. He noted, however, that there was no evidence of the partner’s financial situation beyond a single bank statement and that the maintenance requirements of the rules had not been shown to have been met. He was not satisfied that Mr Majiyagbe met the definition of a partner as there had been no engagement, the appellant had not been given entry clearance as a fiancée and they had not been living together. He found that as at the date of the application the appellant could not satisfy the requirements of paragraph 276ADE(1)(v) and, indeed, that was conceded by the appellant at the hearing (at paragraph 14). Paragraph 276ADE(1)(vi) was also found not to have been met. With respect to article 8, the judge found that the whilst the relationship was genuine and subsisting, there were doubts about its strength because the appellant’s partner had stated he would not accompany the appellant or support her were she to leave the UK. He, therefore, concluded that article 8 was not engaged. Additionally, he found that the appellant had the option of making an entry clearance application to return to the UK.
4. The appellant sought permission to appeal on the basis that the judge had made conflicting findings with respect to the relationship. Permission was granted by First-tier Tribunal Judge Hollingworth on 25 January 2017 and the matter now comes before me.
The Hearing
5. At the hearing before me on 21 April 2017, I heard submissions from the parties. The appellant was in attendance.
6. Mr Adewole, who also appeared for the appellant at the First-tier Tribunal hearing, submitted that the judge had erred in finding the appellant had established family life with her partner but also finding that she could return to Nigeria and seek entry clearance. He said the judge had found that they did not live together because of religious reasons and that he found that private life could also be continued in Nigeria.
7. Mr Clarke submitted that the grounds failed to challenge paragraph 17 of the determination in which the judge found there was no reason to consider article 8 outside the rules and that was fatal to the appeal. He submitted that whilst it was accepted that there was a genuine relationship, and that could constitute family life, he gave reasons at paragraph 21 as to why he had concerns about the longevity of it. The assessment of family life requires a gravity in interference and the judge was not happy about the substance of the relationship. The reference to paragraph 25 of the determination was a misunderstanding as the judge had been assessing family life between the appellant and her ‘step-mother’. That was clear from the preceding paragraphs; there had been no contradiction.
8. With respect to private life, Mr Clarke submitted that the rules had not been met as the appellant had not spent half her life in the UK at the date of the application. The grounds had no merit and the appeal should be dismissed.
9. Mr Adewole responded. He submitted that there was no requirement in paragraph 276ADE that the court was limited to circumstances at the date of the application when assessing a private life application. When Mr Clarke pointed him to the rules which confirmed that requirement, he stated that the rules conflicted with section 85(4) which allowed the Tribunal to consider the facts as at the date of hearing. He acknowledged this was a fresh ground of appeal. He finally submitted that the appellant was now married to her partner and was expecting a child. He acknowledged, however, that that was not material to the error of law issue.
10. Those were the submissions. At the conclusion of the hearing, I reserved my determination which I now give.
Findings and conclusions
11. In granting permission to appeal, First-tier Tribunal Judge Hollingworth considered it arguable that the judge erred in finding there was no family life between the appellant and her partner when he had also found there was a subsisting relationship. The grounds themselves, however, argue something different. Whilst it has to be said that they could have been better prepared, three potential errors are identified: (1) that the judge failed to consider the impact of the appellant’s removal upon her partner; (2) that the judge erred in finding that the appellant’s private life (consisting of her residence in the UK for half of her life and her young age on arrival) could be continued in Nigeria and (3) that he failed to appreciate the repercussions of removal of the appellant on her partner and erred in concluding that family and private life were minimal. It may be seen that there is some overlap between the first and third ground.
12. In his submissions, Mr Adewole did not seek to expand upon the first ground. Indeed, there was no reference to it at all. I was not pointed to any evidence that had been given in this respect or to any documentary evidence from the sponsor in which the impact of the appellant’s removal upon him was set out. His witness statement is brief and does not give details of this. Nor is this issue addressed in his oral evidence (summarised at paragraph 8). In the absence of any submissions on this ground, I find it is not made out. I should also state at this juncture that the reference to the judge having acknowledged that they had established a family life in the UK (at paragraph i(c) and (e) of the grounds is not supported by the contents of the determination.
13. The second ground relates to the judge’s finding on the appellant’s private life. Reference is made to paragraphs 13-18 of the determination but nowhere in these paragraphs does such a finding appear. Nor can I find any reference in the determination to a finding that the appellant had spent 12 years of her life in the UK (as alleged at ii(h) of the grounds). In paragraph 13 and 14 the judge engages with Mr Adewole’s submission under paragraph 276ADE(1)(v). He noted that the appellant conceded that she did not meet the requirements of the rules at the date of application with regards to her period of residence (at paragraph 14). He went to consider whether she could qualify at the date of the hearing, taking account of the submissions under s. 85(4) but found that she had not established her date of entry to the UK and hence had failed to show that even at the date of the hearing she had spent more than half of her life here (at paragraph 14). Therefore, contrary to what was argued in the grounds and at the hearing, the judge plainly did take that issue into account but in the absence of documentary evidence was entitled to conclude that the date of entry had not been established. I would also point out here that the grounds did not suggest that the appellant’s period of residence formed a private life deserving of protection.
14. The third ground partially repeats the first and there is no need to repeat what I have already said. The complaint at iii(n) can be covered by Judge Hollingworth’s take on what the potential error of law was and is, really, the only arguable ground put forward. That complains of an apparent conflict in his finding on there being a subsisting relationship but no family life. At first glance that does appear to be a contradictory finding but only if taken out of context. The judge considered the relationship under the rules but found that whilst it was subsisting, the appellant’s partner did not meet the definition of a partner under Appendix FM (at paragraph 12); on that point alone the appeal could not succeed under the rules.
15. The judge then proceeded to consider whether having failed to meet the requirements of the rules, the circumstances of the case warranted consideration of article 8 outside the rules. He directed himself as to the law (at 16) and noted that no gap between the rules and article 8 was apparent or was identified by Mr Adewole (at paragraph 17). Notwithstanding that conclusion, however, he proceeded to take a belt and braces approach and considered article 8. He set out the Razgar steps at paragraphs 19-20 and on the issue of the relationship expressed concerns about the appellant’s partner’s declaration that he would not accompany the appellant to Nigeria and would not help to support her there. Those are matters that plainly weighed heavily on his mind and not surprisingly so given that he had also declared that he wanted to marry the appellant. Whilst paragraph 21 could certainly have been more clearly expressed, the judge had taken the view that the relationship was not deserving of protection in that interference was not such as to make removal disproportionate. I can see no finding that the parties did not cohabit because of religious reasons as Mr Adewole asserted. Paragraphs 22-25 contain an assessment of the claimed family life between the appellant and her ‘step-family’. The judge was entitled to find that the evidence did not support a finding that any ties went beyond what would normally be expected and, indeed, there is no challenge to that finding in the grounds.
16. The judge also went on to consider whether the appellant would be able to meet the entry clearance requirements (the Chikwamba point) but found that there were insufficient documents relating to maintenance and finance. He found that if that evidence were available, the appellant had that option open to her.
17. In conclusion, the judge found that the appeal failed under the rules (on private and family life grounds) and outside the rules on article 8 grounds (paragraphs 30-31). Whilst it may be that another judge may have reached a different conclusion, that is not the test I must apply. The judge reached a sustainable conclusion on the evidence before him and for the reasons given. No errors of law have been identified.
18. I am told that the appellant and her partner have since married and that she is pregnant. Those are matters which have no relevance to the issues I have had to determine. I understand from Mr Adewole that representations have been made to the Secretary of State and that would seem to be an appropriate course of action.
19. Decision
20. The appeal is dismissed.

Signed

Upper Tribunal Judge

Date: 21 April 2017