Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03894/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 12th December 2016
On 17th January 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

Mr. CHRISTIAN IKEDIASHI
(NO ANONYITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

An Anonymity Direction is NOT made. There has been no request and there is no apparent need.

Representation:
For the Appellant: Mr Brown of Citizens Advice Bureau,Bolton.
For the Respondent: Mrs Aboni, Home Office Presenting Officer.

DECISION AND REASONS
Introduction
1. The appellant is a national of Nigeria, born on 16 January 1976. He came to the United Kingdom on 3 April 2006 on a visit Visa valid until 3 August 2006. He overstayed. In 2010 he was joined by his partner and three children from Nigeria.
2. On 14 December 2010 he submitted an application for leave to remain on the basis of article 8. This was rejected because the appropriate fee was not paid. There followed a series of applications similarly rejected. An application made in August 2011 was considered and refused with no right of appeal. He then requested reconsideration and in July 2015 completed a statement of additional grounds. This application was refused and direction made for his removal. The appellant appealed.
3. His application under the partner route of appendix FM failed because his partner was not a British national nor was she settled. Similarly, his application as a parent failed because his children were Nigerian citizens. They had not been here seven years. Furthermore he did not have sole responsibility for them.
4. In relation to his private life and paragraph 276 ADE it was felt that he could reintegrate into life in Nigeria.
5. The respondent saw no reason for granting leave on a free-standing article 8 basis.
The First tier Tribunal
6. His appeal was heard by First-tier Judge Tobin at Manchester in April 2016. The appellant was represented by Counsel. The decision indicates that issues more appropriate to an asylum claim were placed before the court n behalf of the appellant. There was reference to the appellant being at risk on return because of political activities. There was also a claimed fear of his daughter being subjected to female genital mutilation. Paragraph 17 records that the appellant's wife and children were granted discretionary leave to remain until September 2019. The judge did not find his claimed political fear credible. Similarly, the judge did not see any risk of his daughter being subjected to FGM and concluded this had been raised in an attempt to bolster his application.
7. Although headed `The human rights issue'at paragraph 18 the judge refers to the appellant not having sole responsibility for his children and impliedly is indicating that he cannot succeed under the rules by the parent route. The decision then refers to free-standing article 8 issues and refers to the provisions of section 117 B. Reference is made to little weight being given to the appellant's private life as he was someone who had been here unlawfully. The judge did not see any issue with the whole family returning to Nigeria. The appeal was dismissed under the rules and on article 8 grounds.
The Upper Tribunal
8. Application for permission to appeal was made by the Counsel that appeared and who contended the judge failed to give adequate reasons for not finding the appellant credible and for concluding that FGM had been outlawed in Nigeria. It was also said that the judge made a mistake of fact in that the appellant's wife and children had been granted leave until September 2018 not September 2019. Furthermore, this was a second grant of leave to them, the first being in 2013 until 2016.
9. It was submitted there was disparity of treatment between the appellant and his wife and children by the respondent. Reference was made to the length of time the children had been in the United Kingdom and the respondent's section 55 duties.
10. Permission to appeal was granted on the basis the judge failed to consider the appellant's children if the appellant were removed.
11. The respondent has issued a reply under rule 24 opposing the appeal stating the judge dealt was a relationship between the appellant and his wife and children and that neither of the children had been in the United Kingdom for the necessary time in order to be considered qualifying children.
12. At hearing, the appellant's representative submitted that the judge had not dealt adequately with the position of the children. It was accepted that the appeal could not succeed under the immigration rules.
13. In response the presenting officer relied on the served response. The presenting officer advised that the appellant's wife had claimed protection for herself and her children which was refused but they had been given discretionary leave.
Consideration
14. The appellant came to the United Kingdom when he was 30 years of age in 2006. He came on a visit Visa so he was aware his right to be here was limited to 6 months. Instead of returning he overstayed. From his statement he indicates his wife visited him in 2008 and 2009. On the last occasion she was accompanied by their two children, Ezekiel (dob 8/1/05) and Raphael (20/7/2006). At the time she was pregnant with their third child , Queen Elizabeth (20/6/09.) who was born in the United Kingdom shortly after her arrival. A fourth child, Enoch, has been born in the United Kingdom (3/9/20012). He then states she claimed asylum in early 2010 which was unsuccessful. She and the children however were granted discretionary leave. The appellant and his wife separated at times. When the First-tier appeal was heard in April 2016 the children were aged 11, 9, 6 and 3. The two eldest were aged 5 and 4. when they came here.
15. The judge referred to the reasons for refusal letter which highlighted the respondent's obligation under section 55 towards the children. It was pointed out that the children and their mother had only limited leave to remain and could return with the appellant to Nigeria. There he could support his family and the children could adapt to life there. Regarding their Christian beliefs, this could continue in Nigeria. The judge heard evidence from church pastors and documents from the children's schools.
16. At paragraph 40 the judge refers to the appellant being evasive and concluded that he has a large family in Nigeria albeit in different locations. The judge dealt with the question of female genital mutilation. The judge accepted he had a genuine parental relationship. The children were doing well at school. Reference was made however to the possibility of this continuing in Nigeria and the judge referred to the reasons for refusal letter. In that letter, from paragraph 34 onwards, reference was made to the respondent's obligation under section 55. Paragraph 38 of the refusal letter deals with the Nigerian educational system. The refusal letter also says that the appellant has been living within the Nigerian community in the United Kingdom and consequently the children will have some awareness of Nigerian life. It is clear from the decision that the judge was incorporating these statements into the decision.
17. The judge had the benefit of a bundle of documents from the appellant's representative. The judge also bore in mind the respondent's comments about the welfare of the children in the refusal letter. The decision indicates the judge did have regard to the various issues arising, including the interests of the children. It is my conclusion these have been adequately considered and that the decision reached was one open to the judge. Consequently, I find no error of law. I find nothing material turns on the fact the judge refers to the appellant's wife and children having been granted a year longer than fact they had. The other issues in the leave application have not been pursued and they have no apparent merit.

Decision
The decision of the First-tier Tribunal dismissing the appeal under the immigration rules and on human rights grounds does not materially err in law and shall stand.

Deputy Judge of the Upper Tribunal Farrelly.