Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/04478/2015

THE IMMIGRATION ACTS

Heard at Manchester, Piccadilly Decision & Reasons Promulgated
On the 10th April 2017 On the 20th April 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
MR MORUFU BABATUNDE BELLO
(Anonymity Direction not made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Hussein (Solicitor)
For the Respondent: Mr McVeety (Senior Home Office Presenting Officer)
DECISION AND REASONS
1. This is the Appellant’s appeal against the decision of First-tier Tribunal Judge Hudson promulgated on the 1st July 2016, in which he dismissed the Appellant’s appeal against the Respondent’s decision to grant him Leave to Remain in the United Kingdom on Human Rights grounds under Article 8 of the ECHR.
2. In her decision, Judge Hudson found that the Appellant did not meet the criteria for 10 years’ lawful residence, pursuant to Paragraph 276B of the Immigration Rules, but noted that the appeal was being dealt with under the new more limited rights of appeal contained within the Nationality, Immigration and Asylum Act 2002, as inserted by Section 15 of the Immigration Act 2014, but stated that the claim still had to be viewed “through the prism” of the Immigration Rules. She found that the Appellant did have 2 children, Fatimah and Rukayat, whom she did not doubt for a moment were lovely children and were progressing well at school and in their social endeavours. However, she was not satisfied the Appellant earned the level of income claimed by him. She found it was in the best interests of both children to be brought up by their parents for the purposes of Section 55 of the Borders, Citizenship and Immigration Act 2009, but found that the children’s removal with their parents would not involve any disruption to family life. She accepted that the children, particular Fatimah, who was now 12 years old, would have formed friendships and relationships within the community, but found that the parents came during a period of study and did so in light of an expectation that they and the children would be returning to Nigeria and that therefore the children would have already expected to return to Nigeria and that under Paragraph 276ADE(1)(iv), Fatimah was under the age of 18 and lived in the UK since 2006, a period of 10 years, but found that it would be reasonable to expect her (were she an applicant) to leave the United Kingdom on the basis that she had always known that she and her family were present in the United Kingdom on a temporary basis and were returning to Nigeria with her family. She did not accept that there would be very significant obstacles to the Appellant reintegrating back into family life in Nigeria. She further considered that the decision was proportionate to the legitimate public end sought to be achieved for the purpose of Article 8 under the test laid down by the House of Lords in the case of Razgar [2004] UKHR 27.
3. The Appellant has now sought to appeal against that decision for the reasons set out within the Grounds of Appeal. This is a matter of record and is therefore not repeated in its entirety here, but in summary, it is argued, both within the initial Grounds of Appeal and in the renewed Grounds of Appeal, that the First-tier Tribunal Judge erred in her approach to whether or not the Appellant’s leave was broken by an invalid application and it was only if the application of the 26th July 2013 was treated by the Secretary of State as invalid would that lead to the conclusion that the Appellant’s Section 3(c) leave was not continuous. In the second ground of appeal it is argued that Judge Hudson erred in her approach to a previous determination of First-tier Tribunal Judge Dickinson in October 2014, who found that Fatimah had lived in the UK for such a long period of time that she would not be able to reintegrate into the culture and lifestyle of Nigeria. Thirdly, it was argued that Judge Hudson misapplied the test of reasonableness, in terms of whether or not it was reasonable to expect the child to leave the UK following the case of MA (Pakistan) v Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705 and there had to be strong reasons why leave should be refused when a child had been in the UK more than 7 years.
4. Although permission to appeal was initially refused by First-tier Tribunal Judge Frume on the 20th October 2016. Judge Frume found that Judge Hudson had not erred in treating the continuity of residence as having been broken and that in respect of the previous decision of First-tier Tribunal Judge Dickinson, that had been challenged on the basis that it is erroneous in law and the Appellant had subsequently withdrawn his appeal. The findings he found were therefore not a starting point in a Devaseelan sense and at the time that Judge Hudson heard the appeal nearly 2 years has passed. He further found that Judge Hudson had taken account of all relevant factors and her decision was open to her even if other Judges might have reached a different conclusion when considering the Article 8 claim.
5. However, permission to appeal was subsequently granted by Upper Tribunal Judge Rintoul on the 21st December 2016, who found that “It is arguable, as the renewed grounds make clear at [11] to [14] that First-tier Tribunal Judge Hudson erred in law in her application of Section 117B(6) given how long the older child had lived in the United Kingdom, given the observations of Elias LJ in MA (Pakistan) [2016] EWCA Civ 705 at [46] and [49] in particular, and in light of the finding at [28] of positive factors in favour of allowing the Appellant to remain. There is arguably no sufficient indication of the 7 years point as a starting point”. It was on that basis that permission to appeal was granted and came before me in the Upper Tribunal. I bear in mind on that basis that permission was only granted in respect of Judge Hudson’s analysis of Section 117B(6).
6. In his submissions before the Upper Tribunal, Mr Hussein relied upon the initial and renewed Grounds of Appeal. He argued that Judge Hudson although not accepting the Appellant had proved the amount of income earned, had found at [26] that the Appellant did earn a salary from his work that he did and that he was hard-working and that he was employed by an organisation which provided education aimed at those in minority communities and that in addition he was a school governor at New Park Primary School and a respected member of the community. He noted that the Judge at [28] further found that the Appellant is a fluent English-speaker and he was financially able to support himself for the purposes of Section 117B and that she accepted that the family had not relied on State benefits. He submitted the Judge accepted that they had established a private life in the United Kingdom initially while they had lawful leave to reside in the country and that those factors weighed heavily against the public interest in removal. However she noted that the maintenance of immigration control is in the public interest and was a factor of significance when considering any potential breach of the Appellant’s Article 8 rights. He argued that the Appellant did initially have lawful leave and that there was no criminality and had not relied on State benefits. He submitted that Judge Hudson had not set out any good reasons why, given that Fatimah had been in the UK for more than 7 years, it was considered reasonable for her to leave the United Kingdom. He argued that there was a clear material error of law in that regard.
7. Mr McVeety in his submissions relied up on the Rule 24 reply and argued that the Judge had not accepted the level of the Appellant’s salary and that the Appellant’s leave was precarious throughout. He agreed that the Appellant was not an overstayer and had not had recourse to public funds or used NHS services without paying.
8. Both legal representatives were happy for me to remake the decision, if a material error of law was found, without further evidence being heard.
My Finding on Error of Law and Materiality
9. Judge Hudson was quite correct in stating as the decision was made on the 5th August 2015, the new more limited right and grounds of appeal as inserted into the Nationality, Immigration and Asylum Act 2002 in Sections 82 and 84 by Section 15 of the Immigration Act 2014 applied, and that when considering the appeal under the more limited grounds of appeal, that still had to be viewed “through the prism” of the Immigration Rules. Judge Hudson considered Fatimah’s position under Paragraph 276ADE(1)(iv) in deciding whether or not it would be reasonable to expect her to leave the United Kingdom (were she the applicant). However, in this case, Fatimah herself was not the applicant, the Appellant was and therefore, Paragraph 276ADE(1)(iv) did not in fact apply. I find that Judge Hudson did err in considering Fatimah’s position under that rule. When considering the situation of Fatimah, I find that that should have been considered under Section 117B(6) of the Nationality, Immigration and Asylum Act 2002, as inserted by Section 19 of the Immigration Act 2014.
10. Although at [22] Judge Hudson found that the Appellant did not have a partner or qualifying child to whom she must have regard, it was clearly accepted by her that Fatimah is the Appellant’s child, whom on the evidence before Judge Hudson, she found had been living in the UK since 2006, then a period of 10 years. Fatimah was therefore a qualifying child under Section 117D(1) and that therefore, under Section 117B(6):
“In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where–
(a) the person has a genuine and subsisting parental relationship with a qualifying child; and
(b) it would not be reasonable to expect the child to leave the United Kingdom”.
11. Although no criticism could be made of Judge Hudson in respect of her failure to apply the reasoning of Lord Justice Elias in the case of MA (Pakistan) and others v The Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705, given that her decision was promulgated on the 1st July 2016, whereas the Court of Appeal decision itself was not promulgated until almost a week later on the 7th July 2016, the decision of the Court of Appeal did not amount to a change in the law, but amounted to clarification as to the law that was already in existence and that should have been applied by Judges.
12. In that regard, as stated by Lord Justice Elias at [49] “Although this was not in fact a 7 year case, on the wider construction of Section 117B(6), the same principles would apply in such a case. However, the fact that the child has been in the UK for 7 years would need to be given significant weight in the proportionality exercise for 2 related reasons: first, because of its relevance to determining the nature and strength of a child’s best interests; second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary”.
13. Regrettably, Judge Hudson has not given significant weight to the fact that Fatimah had been in the UK for more than 7 years, and has not taken it as a starting point indicating that leave should be granted unless there are powerful reasons to the contrary. She has not set out powerful reasons to the contrary, and although it is argued by Mr McVeety, that can be inferred from the decision, I do not accept that Judge Hudson has actually set out what the powerful reasons to the contrary were in this case. I therefore do find that the decision of Judge Hudson does contain a material error of law in respect of her balancing of the Article 8 claim, and I do set aside the decision in that regard.
14. In remaking the decision, I do otherwise maintain the other findings of Judge Hudson in the case, other than her ultimate analysis as to the reasonableness as to whether or not it was reasonable to expect Fatimah to leave the UK and as to the balancing exercise under the Razgar test. I do accept and find as a fact that the Appellant does have a genuine and subsisting relationship with his daughter Fatimah, and that as Fatimah came to the UK on the 16th April 2006, when she was only 2½ years old, she having been born on the 23rd December 2003, that she has been resident in the UK for over 10 years and is therefore a qualifying child for the purposes of Section 117D of the Nationality, Immigration and Asylum Act 2002.
15. When asked by myself as to what the powerful reasons were as to why leave should not be granted and as to why it would be reasonable to expect Fatimah to leave the UK, given the fact that she has as Judge Hudson found formed friendships and relationships in her community over that protracted period of time, Mr McVeety was only able to point to the fact that the Judge had not accepted the Appellant’s precise level of income. However, Judge Hudson had found for the purposes of Section 117B that the Appellant was a fluent English-speaker and was financially able to support himself and that he was employed through his own business and that his wife was a support worker and cleaner and she accepted that the family had not relied upon State benefits, and I repeat and maintain those findings, in light of the evidence heard by Judge Hudson. I further accept and repeat the findings of Judge Hudson that the Appellant had established his private life in the UK initially whilst he had a lawful right to reside in the country and that the Appellant did have lawful leave to remain until the 31st July 2013 and by the time of the invalid application that was subsequently made in 2013, Fatimah as had been found by Judge Hudson, had been in the UK for 7 years. I bear in mind that the children are not to blame for the sins of their parents, in terms of whether or not the children’s leave was lawful.
16. I do further accept and repeat Judge Hudson’s finding that it is in the best interests of Fatimah to be brought up by both parents for the purposes of Section 55 of the Borders, Citizenship and Immigration Act 2009 and I find that having spent the majority of her life in the UK and having been here since the age of 2½, it is in her best interests to remain in the UK. I further accept that Fatimah does not speak Yoruba, given the evidence of the Appellant in that regard and I accept that she has not spent time in Nigeria since the age of 2½. Although I accept that the Appellant and Fatimah’s leave position in the UK has been precarious throughout in that none of the family members have had Indefinite Leave to Remain, and I bear in mind that little weight should be given to a family life established at a time when the leave was precarious, that does not mean that no weight should be attached to such family life. I bear in mind in that regard that there is also no criminality on the part of the Appellant or his family.
17. I therefore do not find that there are any good or powerful reasons as to why it would be reasonable for Fatimah to leave the UK, who has now been in the UK for over 10 years, taking account of all the public interests factors in the case including those affecting the Appellant and the whole family and not looking purely at the interests of Fatimah herself. I do not accept having taken account of all the public interest considerations affecting all of the family that it would be reasonable to expect Fatimah, having been in the UK now for more than 10 years, to leave the UK. In such circumstances, I find that the Appellant is not facing deportation and that the provisions of Section 117B(6) are met. In such circumstances the public interest does not require his removal from the UK. I therefore remake the decision allowing the Appellant’s appeal on Human Rights grounds in respect of the decision that would amount to a breach of his right to a family life in the UK for the purposes of Article 8.

Notice of Decision
The decision of First-tier Tribunal Judge Hudson in respect of her analysis of Article 8 does contain a material error of law and is set aside in that regard;
I remake the decision allowing the Appellant’s appeal on Human Rights grounds;
I make no order in respect of anonymity, no such order having been made by Judge Hudson, and it not being argued before me that there was a requirement for any such anonymity order.

Signed

Deputy Upper Tribunal Judge McGinty Dated 11th April 2017