Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/04856/2016
HU/04851/2016

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 20 March 2017
On: 21 March 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

UA
IO
(ANONYMITY DIRECTION MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the appellant: Ms L Appiah, Counsel
For the respondent: Ms A Fijiwala, Senior Home Office Presenting Officer

DECISION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the Appellants.
1. I have made an anonymity order because this decision refers to the circumstances of a minor child, the second appellant. The first appellant is his mother.
2. The appellants, both Nigerian citizens, have appealed against a decision of the First-tier Tribunal dated 13 July 2016 in which it dismissed an appeal against the decision of the respondent dated 22 January 2016 refusing leave on Article 8 grounds. The appeal before the First-tier Tribunal proceeded without an oral hearing, at the appellants’ request.
3. The appellants have been granted permission to appeal against the First-tier Tribunal decision by First-tier Tribunal Judge Scott Baker on 3 January 2017, who observed that it is arguable that the First-tier Tribunal failed to give reasons for the conclusion that it would not be reasonable for the second appellant to reside in Nigeria.
4. In a rule 24 response dated 17 January 2017 the respondent opposed the appeal and submitted that the First-tier Tribunal had directed itself to all relevant matters before reaching the conclusion that it would be reasonable for the second appellant to adjust to living in Nigeria.
Error of law
5. At the hearing before me both parties accepted that the appeal before the First-tier Tribunal was on human rights grounds only and it followed that the issue in dispute is whether there was any error of law in the assessment that it is reasonable for the second appellant to reside in Nigeria in accordance with section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (as amended).
6. It is regrettable that both parties completely failed to refer to an obviously relevant authority, MA (Pakistan) V SSHD [2016] EWCA Civ 705 (7 July 2016), in the appeal documentation to this Tribunal. This was remedied at the hearing before me when both representatives focussed their submissions upon MA (Pakistan). In this decision, the Court of Appeal found that the significance of section 117B(6) is that where the child has been in the United Kingdom for seven years, this is a factor of significant weight leaning in favour of leave to remain being granted [45]. Elias LJ said this:
“46. Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled "Family Life (as a partner or parent) and Private Life: 10 Year Routes" in which it is expressly stated that once the seven years' residence requirement is satisfied, there need to be "strong reasons" for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment.
…
49. … However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child's best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary.”
7. As noted by the First-tier Tribunal, the first appellant arrived in the United Kingdom as a visitor in 2007 and overstayed [7 and 22]. The second appellant was born in the United Kingdom in 2007 [18 and 30], and he has therefore accrued the requisite seven years residence to be a “qualifying child” for the purposes of section 117B(6).
8. I am satisfied that the First-tier Tribunal directed itself to and applied the correct test of reasonableness [20, 22-23, 33]. However, when the First-tier Tribunal decision is read as a whole, there is no clear indication that it attached significant weight to the second appellant’s length of residence, either when applying the reasonableness test or carrying out the proportionality exercise. The First-tier Tribunal was clearly mindful of the second appellant’s length of residence and referred to it several times but that is different to attaching significant weight to it.
9. The First-tier Tribunal also failed to take into account the full ambit of the relevant respondent’s policy in the Immigration Directorate instructions (‘IDI’) referred to in MA (Pakistan) and failed to acknowledge or take into account that once the seven years' residence requirement is satisfied, the respondent’s own policy required “strong reasons” for refusing leave.
10. It follows that the First-tier Tribunal has erred in law. Ms Fijiwala submitted that the error of law identified is not material, because the First-tier Tribunal would have come to the same conclusion. I do not agree. This is not a case in which it can be said with confidence that the decision would have been the same had the First-tier Tribunal attached significant weight to the second appellant’s length of residence, notwithstanding the first appellant’s poor immigration history.
11. After announcing my decision, both representatives agreed that given the straightforward and unopposed facts, that I could remake the decision on the basis of submissions only.
Remaking the decision
12. I heard brief submissions from both representatives, and reserved my decision, which I now provide with reasons. Both representatives agreed that the question for me to determine is the question posed by section 117B(6) in the context of an Article 8 assessment, in light of all the evidence available at the date of hearing before me.
Best interests
13. I begin the assessment by evaluating the primary consideration of the second appellant’s best interests. The second appellant’s best interests lie in remaining in the United Kingdom. He was born here and has spent the entirety of his life in the UK. He will be 10 in November 2017. He is progressing reasonably at school and has friends in the United Kingdom. He has never been to Nigeria. He appears to be completely integrated into UK society and culture. The second appellant is now at an age when it can be said that he has entered a more critical stage of his personal and educational development – see Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 00197.
14. On the other hand, it is probable that with time and support from his mother, he is still young enough to adapt to life in Nigeria.
15. On balance, I conclude that the best interests of the second appellant, viewed through the lens of Article 8 private life, would be better served by remaining in the United Kingdom. There are four dominant factors: (i) length of residence in the UK – a matter to which I attach significant weight; (ii) full integration in United Kingdom society; (iii) age and his more recent formative years in the United Kingdom; (iv) minimum personal ties with Nigeria - whilst I accept he clearly has links through his mother and ethnicity, he has never even visited the country.
Proportionality
16. I am mindful that the best interests assessment is not determinative of the question posed by section 117B(6) of the 2002 Act, namely whether it would be reasonable to expect the child to leave the United Kingdom. As Elias LJ noted in MA (Pakistan) at [47] even where the child’s best interests are to stay, it may still be not unreasonable to require the child to leave. That will depend upon a careful analysis of the nature and extent of the links in the United Kingdom and Nigeria, as well as any other relevant wider considerations – see [45] of MA (Pakistan), EV (Philippines) v SSHD at [34-37] and PD and Others (Article 8 - conjoined family claims) Sri Lanka [2016] UKUT 108 (IAC).
17. This question cannot be answered without considering the mother’s appeal, to which I now turn. Her claim to remain does not come remotely close to succeeding under the Rules. She is a longstanding unlawful overstayer but other than that appears to be law abiding; she has spent most of her life in her country of origin, Nigeria. However, the dismissal of the first appellant’s appeal would interfere with her right to respect for private life. Since the impugned decision is in accordance with the law and in furtherance of a legitimate aim, namely the maintenance of immigration control, the next question to be addressed is whether it is proportionate. Proportionality is the “public interest question” within the meaning of Part 5A of the 2002 Act. By section 117A(2) thereof I am obliged to have regard to the considerations listed in section 117B. I consider that section 117B applies to these appeals in the following way:
(a) The public interest in the maintenance of effective immigration controls is clearly engaged. The first appellant’s unlawful overstaying in the United Kingdom has been lengthy and flagrant.
(b) There is no infringement of the "English speaking" public interest, given that the appellants are fluent English speakers.
(c) The economic interest must be engaged because the second appellant has been, and will continue to be, educated at public expense.
(d) The private lives established by the appellants during the entirety of their time in the United Kingdom qualifies for the attribution of little weight only. It is however relevant to bear in mind that there appears to have been unexplained delay in the enforcement of immigration control against the appellants – see Agyarko v SSHD [2017] UKSC 11 at [52]. The first appellant made herself known to the respondent when she applied to remain as a spouse of an EEA national. When her appeal rights were exhausted shortly after a previous decision of the First-tier Tribunal dated 2 January 2013, it appears that no further action was taken to enforce removal. The first appellant made a further application for leave to remain in September 2015. Ms Fijiwala was unable to explain the reason for the delay in enforcing immigration control between the relevant dates in 2013 and 2015. This period of delay means that the weight to be given to precarious private life is liable to increase: see by analogy the approach to precarious family life in Agyarko (supra) at [52]. Delay (which is not a reason in itself to allow an appeal on the basis of Article 8), tempers precariousness – see BS (Congo) v SSHD [2017] EWCA Civ 53 at [22].
18. This brings me back to section 117B(6), which provides:
“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."
19. It is not disputed that the second appellant is a “qualifying child” by virtue of his length of residence in the United Kingdom and he has a genuine and subsisting parental relationship with the first appellant. In my consideration of his best interests above I have already highlighted the salient facts and factors. I must balance these with the outcome of the forecast, which must necessarily be undertaken, based on the premise of the family unit returning to Nigeria. On the one hand, this would be disruptive for the second appellant and would decimate the friendships, relationships and activities that form the core of his private life. It would also obstruct his education, though I accept not irredeemably so. Importantly it would involve his transfer to a society whose way of life will be unfamiliar to him, albeit he must have some knowledge of it through his mother. Emotionally, it would undoubtedly be stressful. Furthermore, this fundamental transformation of his life and lifestyle would occur at an age and stage of greater importance to his development (in contrast to when he was not attending school). I bear in mind that he has not reached critical milestones in his development in the manner identified in PD and others (supra), but he has nonetheless been in the United Kingdom for nearly 10 years and these have included a significant period of time at school, where he has developed important relationships outside the family unit.
20. On the other hand, taking into account the second appellant’s age and the support of his mother, he would, foreseeably, adapt over time. There is no suggestion that his health would be detrimentally affected or that there would be any irreparable rupture in his academic progress.
21. The test to be applied is that of reasonableness. The application of the reasonableness test involves a balance of all material facts and considerations. The application of this test will invariably be intensely fact sensitive, see EB (Kosovo) v SSHD [2008] UKHL 41, at [7] - [12], per Lord Bingham. I follow the guidance in MA (Pakistan) and the IDI and attach significant weight to the second appellant’s length of residence in the UK (over 9 years). Other factors of particular strength are: his time in the UK spanned his entire life; his deep immersion in all aspects of life in this country; an important stage of his personal and educational development has been reached; his minimal personal connections with Nigeria.
22. The main countervailing factor is that the appellants have no legal right to remain in the UK. They have flagrantly and over a long period of time flouted immigration control as unlawful over-stayers. This is a factor of undeniable weight. However, it has been frequently stated that a child's best interests should not be compromised on account of the misdemeanours of its parents – see Baroness Hale in ZH (Tanzania) v SSHD [2011] UKSC 4, at [20]-[21] and [35], and MA (Pakistan) at [52 and 53] and per Elias LJ at [102]:
“In my judgment, the observation of the judge to the effect that people who come on a temporary basis can be expected to leave cannot be true of the child. The purpose underlying the seven year rule is that this kind of reasoning ought not to be adopted in their case. They are not to be blamed for the fact that their parents overstayed illegally, and the starting point is that their status should be legitimized unless there is good reason not to do so. I accept that the position might have been otherwise without the seven years' residence, but that is a factor which must weigh heavily in this case. The fact that the parents are overstayers and have no right to remain in their own right can thereafter be weighed in the proportionality balance against allowing the child to remain, but that is after a recognition that the child's seven years of residence is a significant factor pointing the other way.
23. Notwithstanding the first appellant’s poor immigration history and the weight that I attach to that, I consider that there is a preponderance of factors impelling to the conclusion that it would not be reasonable to expect the second appellant to leave the United Kingdom. There are no strong reasons that are directly attributable to him pointing in the other direction. Accordingly, the second appellant’s appeal succeeds under Article 8.
First appellant
24. Having thus concluded, the effect of section 117B(6) of the 2002 Act is that the public interest does not require the removal of the first appellant. The effect of dismissing her appeal would be to stultify the decision that the second appellant’s appeal must be allowed. In short it would be unreasonable and disproportionate (notwithstanding their immigration history) to remove the mother because this would inevitably mean that the son would have to leave with her. The first appellant’s appeal therefore also succeeds under Article 8.

Decision
25. The decision of the First-tier Tribunal contains an error of law and is set aside.
26. I remake the decision by allowing the appellants’ appeals pursuant to Article 8 of the ECHR.

Signed: Ms Melanie Plimmer Dated: 20 March 2017
Judge of the Upper Tribunal