HU/04271/2021

• Status of case: Unreported
• Hearing date: 23 Mar 2022
• Promulgation date: 9 May 2022
• Publication date: 22 Jul 2024
• Last updated on: 22 Jul 2024

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04271/2021
[UI-2021-001405]


THE IMMIGRATION ACTS


Heard at : Field House
Decision & Reasons Promulgated
On the 23 March 2022
On the 09 May 2022



Before

UPPER TRIBUNAL JUDGE KEBEDE
DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON


Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

iyke chukuwuemeka
Respondent

Representation:
For the Appellant: Mr S Whitwell, Senior Home Office Presenting Officer
For the Respondent: Mr R Solomon, instructed by Jein Solicitors


DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal allowing Mr Chukuwuemeka’s appeal against the respondent’s decision to refuse his application for leave to remain in the UK.

2. For the purposes of this decision, we shall hereinafter refer to the Secretary of State as the respondent and Mr Chukuwuemeka as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.

3. The appellant is a citizen of Nigeria, born on 25 October 1981. He entered the UK on 18 January 2012 on a domestic worker visitor visa, valid until 17 May 2012. He overstayed and then, on 26 March 2014, submitted an application for an EEA residence card as the partner of a German national, Jennifer Strocka. The application was refused on 13 August 2014 and the appellant’s relationship with Ms Strocka ended, in any event, in 2015. Prior to that, in 2014, the appellant met Juliet Odum and they had a child, Kayla, born on 13 November 2014, although they did not live together.

4. On 14 January 2020 the appellant submitted an application for leave to remain on Article 8 family and private life grounds, on the basis of his parental relationship with Kayla. Both Kayla and her mother, Ms Odum, were Nigerian nationals with a derivative right of residence in the UK as a result of Ms Odum being the mother and carer of another child, Keanna (DOB: 23 December 2015), a Dutch national, who was her child from a different relationship.

5. The respondent refused that application on 26 February 2020 on the basis that the appellant was not eligible to apply as a partner or parent under Appendix FM since his partner was not settled in the UK, and that he did not meet the requirements of paragraph 276ADE(1) of the immigration rules on the basis of his private life. The respondent did not consider that there were any exceptional circumstances under paragraph GEN.3.2 of Appendix FM, given that his partner and child were Nigerian nationals and could return to Nigeria with him in order to continue their family life.

6. The appellant appealed against that decision and his appeal was heard by First-tier Tribunal Judge Davey on 8 April 2021. The evidence at that time was that the appellant and Ms Odum were not cohabiting or living together. There was also mention of another child of the relationship between the appellant and Ms Odum, Kamelia (the correct name is Kaniela), born on 9 September 2020, but the focus of the appeal was on his relationship with Kayla, as she suffered from ASD and was on the autism spectrum. Judge Davey noted the lack of evidence of family life between the appellant and Ms Odum and the lack of evidence of the impact of the appellant’s removal upon Ms Odum or the three children, but it was accepted that he was in regular contact with the children and played a part in helping Ms Odum cope with the burden of looking after them. The judge found that forcibly separating the appellant from Ms Odum and the children would have an adverse impact on them and that it would be difficult for Ms Odum to support the three children without him. He gave significant weight to the best interests of the children and concluded that it would be disproportionate, and in breach of Article 8, to require the appellant to leave the UK. He allowed the appeal on Article 8 grounds.

7. Permission to appeal against that decision was sought by the respondent on the grounds that the judge had erred in law by failing to give adequate reasons for findings on material matters and by effectively allowing the appeal solely on the best interests of the children. Permission was granted in the First-tier Tribunal on 20 January 2022.


Hearing and submissions

8. The matter came before us and both parties made submissions.

9. Mr Whitwell relied and expanded upon the grounds of appeal, submitting that the judge had given inadequate reasons for concluding that the respondent’s decision was disproportionate, he had failed to consider the relevant factors in section 117B of the Nationality, Immigration and Asylum Act 2002 and the little weight to be attributed to the appellant’s family life and he had failed to explain why the best interests of the children defeated the public interest. No reasons were provided as to why it would be very difficult for Ms Odum to support the three children without the appellant, as he found at [17], and the judge appeared to have allowed the appeal simply on the basis of Ms Odum being a single parent with some assistance from the appellant.

10. Mr Solomon, in his response, submitted that the judge had made proper findings on material matters and had given clear and adequate reasons why it would be difficult for Ms Odum to support the children alone. The judge had engaged with the factors in section 117B in substance, even if not in form, and had approached the Article 8 assessment on the basis of the unchallenged facts, as accepted by the respondent in the refusal decision. The judge had engaged with all relevant matters and the weight he had given to factors such as the best interests of the children was a matter for him. There were no errors of law in his decision.

11. Mr Whitwell, in response, submitted that whilst the judge may have considered the appellant’s precarious immigration status he did not factor that into his findings and conclusions. Further, in order to allow the appeal, the judge had to find exceptional circumstances such that the refusal of leave resulted in unjustifiably harsh consequences for the appellant and the children, but he did not set out any such circumstances.

Discussion

12. As a preliminary observation, we note that Judge Davey confused the family details in his decision by referring at [4] to the appellant having a relationship with a Ms Saccoh and having a child with her, Keanna, born on 23 December 2015, whereas the evidence was that Keanna was the child of Ms Odum with a different partner, Mr Saccoh, a Dutch national. We raised the matter at the hearing and Mr Solomon agreed that that was the case although he said that the judge considered the correct relationships subsequently and that it was not a material matter. The respondent had not raised that as an issue in the grounds and nothing was made of it by Mr Whitwell, but it does raise some concerns as to the thoroughness of the judge’s assessment of the family relationships. Indeed, we consider it to be a reflection of the overall weaknesses of the judge’s decision in terms of the adequacy of findings and reasoning relating to the family’s circumstances as a whole.

13. We find merit in the respondent’s grounds of challenge and we are in agreement with Mr Whitwell that the judge gave inadequate reasons for concluding that the decision to refuse leave to the appellant was disproportionate. It is clear from the judge’s own observations that the evidence before him was very limited and that what limited evidence there was, was based upon the appellant’s children, with the focus of the proportionality assessment being based upon his family life with his children. Whilst the evidence was that the appellant had two biological children with Ms Odum and a “quasi parental relationship” with Ms Odum’s child from a different relationship, Keanna, the focus of the appellant’s case was on his eldest biological child Kayla and there was scant evidence of his relationship with the other two children. Indeed, on the very limited evidence the judge had before him about the appellant’s second biological child, Kaniela (whom he referred to as Kamelia), all that he was able to say, at [9], was that at the most “it is likely that there was some closeness”.

14. It was not a matter of dispute that the appellant had a genuine relationship with his daughter Kayla, but the judge nevertheless made very limited findings on his role in her life. He referred to the appellant supporting Ms Odum in managing the difficulties faced by a child with ASD, but provided no other details. At [15] and [17] he found that it would be difficult for Ms Odum to support the three children without the appellant but did not make any findings on the nature or extent of the support he provided to the children and how, and to what extent, he alleviated the burden on Ms Odum. At [14], the judge referred to the appellant being in regular contact with “at least the children” and to the fact that he “played a part” in helping Ms Odum cope with the burden of looking after the children, and at [15] he referred to Ms Odum getting support from the appellant for the “general betterment of the welfare of the children”. However, that was the extent of his findings on the matter and, as he himself acknowledged at [14], there was in fact a total absence of independent evidence as to the impact of the appellant’s removal upon Ms Odum and upon the children.

15. As the judge made clear at [9] and [13], there was little evidence of any family or private life beyond the appellant’s relationship with his children and the only relevant factor to be balanced against the public interest, therefore, was the interests of the children. Yet on the basis of the very limited evidence and findings in that regard, as discussed, it is difficult to see how the judge could justify concluding that the public interest was outweighed, and how it was outweighed by the interests of the children. Whilst Mr Solomon’s submission was that weight was a matter for the judge, it seems that the judge used the best interests of the children as a trump card, which was plainly contrary to relevant caselaw and guidance, particularly when there was otherwise no attempt to identify any unjustifiably harsh consequences for the family arising from the refusal of leave.

16. As such, we consider that the respondent’s grounds are made out and that the judge’s decision cannot be upheld. We therefore set aside Judge Davey’s decision in its entirety.

17. Having heard from the parties on the question of disposal, it seems to us that the appropriate course would be for the case to be remitted to the First-tier Tribunal to be heard afresh. As Mr Solomon submitted, there have been some significant changes in the circumstances, such as the grant of settlement to Ms Odum and her child Keanna, and an application by Kayla for settlement, all of which would need to be considered as part of a re-making of the decision in the appeal.

DECISION

18. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), to be heard before any judge aside from Judge Davey.




Signed: S Kebede
Upper Tribunal Judge Kebede Dated: 25 March 2022