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IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2021-001299
First-tier Tribunal No: HU/08195/2020
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 28 April 2023
UPPER TRIBUNAL JUDGE STEPHEN SMITH
CASSANDRA OSAOYANMWEN IJEWEREME
(NO ANONYMITY ORDER MADE)
THE ENTRY CLEARANCE OFFICER
For the Appellant: Mr R. Ahmed, Counsel instructed by Hussain Immigration Law Limited
For the Respondent: Mr T. Melvin, Senior Home Office Presenting Officer
Heard at Field House on 17 January 2023
DECISION AND REASONS
1. By a decision promulgated on 29 October 2021, First-tier Tribunal Judge Hanley (“the judge”) dismissed an appeal brought by the appellant against a decision of the Entry Clearance Officer dated 21 October 2020 to refuse her human rights claim for entry clearance as the adopted child of a partner of a British citizen. The judge heard the appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The appellant now appeals to this tribunal with the permission of First-tier Tribunal Judge Moon.
Factual background and the findings of the judge
2. The appellant is a citizen of Nigeria born on 26 March 2003. She applied for entry clearance as the adopted child of Evelyn Aibangbee (“the sponsor”), a Nigerian citizen who entered the UK on 13 November 2019 as the fiancée of a British citizen. The sponsor is the appellant’s maternal aunt. The appellant’s case was that her mother had abandoned her to the care of her grandmother when she was a small child. The grandmother died in 2007 and the sponsor has been responsible for bringing her up ever since. On 30 June 2017, a Nigerian court issued an adoption order in favour of the sponsor. On 2 May 2020, when she was still a child, the appellant made the application for entry clearance. It was refused for broadly the same reasons as the judge dismissed the appeal.
3. The judge heard the appeal on 5 October 2021, by which time the appellant was an adult. He heard evidence from the sponsor, her husband, John Osagie, whom she married shortly after her arrival in the UK, and from Wilson Isuru-Ajaguna, a neighbour of the appellant and the sponsor from their time living in Nigeria.
4. In a detailed and lengthy decision which set out much of the evidence, the judge found that the appellant could not satisfy paragraphs 309A (de facto adoptions) or 314 (adopted child of a parent with limited leave to enter or remain) of the Immigration Rules. The appellant could not meet paragraph 314 because inter-country adoptions post-dating 3 January 2014 are no longer recognised in respect of Nigeria. The (UK) Department for Education had not issued a Certificate of Eligibility. She could not satisfy paragraph 309A since she and the sponsor were no longer living together and had not done so for the 12 months immediately preceding the application (paras 84 – 89). The judge noted that AA (Somalia) v Entry Clearance Officer (Addis Ababa)  UKSC 81 and R (AK and others) v Secretary of State for the Home Department  EWCA Civ 1038 had subjected paragraph 309A of the rules to significant criticism, but concluded that he had no jurisdiction to consider the validity of the rule, and he had not been invited to do so by the sponsor, who had acted for the appellant in person (para. 88).
5. The judge accepted that the appellant and the sponsor enjoyed “family life” for the purposes of Article 8 of the European Convention on Human Rights (“the ECHR”) but found that the decision to refuse entry clearance was proportionate: see paras 91, and 119 to 121. He had not been given a truthful picture of the appellant’s current circumstances in Nigeria. The evidence had been contradictory. There was limited documentation concerning the Nigerian adoption. The appellant did not present a birth certificate registered at the time of her birth (her birth was registered on 10 September 2019). The sponsor’s financial support for the appellant could continue as at present. The factors on the appellant’s side of the scales were outweighed by those militating against her admission. The judge dismissed the appeal.
Issues on appeal to the Upper Tribunal
6. On a fair reading of the grounds of appeal, and in light of Mr Ahmed’s formulation of the issues in his oral submissions, the appellant contends that the judge fell into error on the following bases. First, through failing properly to analyse the appellant’s claim to be entitled to succeed on the basis of her de facto Nigerian adoption. He failed to engage with the criticisms of paragraph 309A in AA (Somalia) and R (AK and others). Secondly, the judge failed to address the appellant’s best interests as a child at the time she made the application.
7. The Secretary of State relied on a rule 24 notice dated 4 February 2022.
Entry clearance and positive obligations under the ECHR
8. The essential question which lay beneath the judge’s analysis was whether the requirements of the ECHR subjected the UK to a positive obligation to admit the appellant: see the discussion in R (oao Bibi) v Secretary of State for the Home Department  UKSC 68 at paras 25 to 29, and in R (oao MM (Lebanon)) v Secretary of State for the Home Department  UKSC 10 at paras 38 and 40 to 44. In positive obligation cases, the question is whether the host country has an obligation towards the migrant, rather than whether it can justify the interference under Article 8(2). But the principles concerning negative and positive obligations are similar. As the Strasbourg Court held in Gül v Switzerland (1996) 22 EHRR 93:
“In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the state enjoys a certain margin of appreciation…” (paragraph 106)
9. In practice, the question of whether a fair balance has been struck is determined by looking first to the Secretary of State’s Immigration Rules, and then by reference to Article 8 “outside the rules”. As to the latter assessment, Part 5A of the 2002 Act contains a number of public interest considerations to which the tribunal must have regard when considering the proportionality of the refusal of entry clearance. In addition, it is settled law that the best interests of the child are a primary consideration when assessing proportionality under Article 8(2) of the ECHR.
No error in the judge’s analysis of paragraph 309A or the appellant’s claimed de facto adoption
10. In my judgment, the judge was right to apply paragraph 309A in its “unvarnished” form, without purporting to modify its application in light of the criticism it has received from the Supreme Court and Court of Appeal in AA (Somalia) and R (AK and others) respectively.
11. First, as the judge observed, in a human rights appeal, there is no jurisdiction to consider challenges to the Immigration Rules. A judge must consider the question of Article 8 as articulated by the rules, and outside the rules. To the extent that an immigration rule fails properly to articulate the requirements of the ECHR, any potential unlawfulness under section 6 of the Human Rights Act 1998 arising from the rule being applied is readily averted by a judge analysing Article 8 outside the rules. That is precisely what the judge did.
12. Secondly, the appellant’s reliance on AA (Somalia) and R (AK and others) is misplaced. Both authorities concerned the application of paragraph 309A in cases where the sponsor was a refugee, thereby making it very difficult, if not impossible, to meet the cohabitation requirement in the country of origin (save perhaps for cases of very recent flight or other similar scenarios). It was in that context that Lord Carnwath made the following observations in AA (Somalia) at para. 13, to which the judge referred at para. 87:
“I would accept that the requirements of Para 309A (b)(i) and (ii) seem ill-adapted to the purposes of Para 352D. They assume a degree of stability in the home country which is likely to be wholly inappropriate to those like AA seeking refuge from war-torn Somalia, and indeed for most asylum-seekers. Mr Eadie [for the Secretary of State] did not argue otherwise, although he suggested some theoretical scenarios in which the requirements might be achievable. As appears from its introduction the definition seems to have been designed principally to deal with ordinary applications to enter by adopted children, covered by the immediately following Paras…”
13. R (AK and others) is a reportable decision dismissing permission to appeal against a decision of a deputy judge of the High Court refusing to extend time to bring judicial review proceedings. Lewis and Males LJJ criticised para. 309A in terms anchored to the context of those proceedings, namely a challenge brought by the family members of an Afghan refugee present in the UK: see, for example, paras 56 to 58, and Males LJ’s concurring judgment at para. 68.
14. In my judgment, the above criticisms of paragraph 309A were made in the context of a de facto adoptive child seeking reunification with a refugee who has fled the country of origin for fear of being persecuted. They are incapable of application in the very different circumstances of these proceedings. The sponsor chose to leave Nigeria six months before the applicant applied for entry clearance. There is no suggestion that she was fleeing Nigeria on account of a well-founded fear of being persecuted. She chose to do so, and in so doing deprived the appellant from being able to rely on paragraph 309A of the Immigration Rules.
15. The judge was right to dismiss the appeal on the basis that the appellant could not meet the Immigration Rules, for the reasons he gave, which were sufficient.
Judge did not err by failing to consider the appellant’s past best interests as a child
16. Mr Ahmed accepts that the judge was not required to assess the appellant’s best interests as a “child” at the date of the hearing, as she was by then an adult. However, he submitted that the judge should in any event have addressed the appellant’s best interests as they stood when she was still a child when she submitted her application in May 2020, aged 17.
17. This submission is without merit.
18. First, since the appellant was not a child at the date of the hearing, at its highest any consideration of her previous best interests as a child would simply form one facet of the Article 8 proportionality exercise and would not attract the weight as a primary factor they would otherwise have attracted, were it the case that the appellant had still been a child at the date of the hearing.
19. Secondly and in any event, a child’s best interests are a primary consideration but are not the paramount consideration. In the immigration context, they are capable of being outweighed by the cumulative force of any countervailing factors militating in the opposite direction. In this case, the appellant did not meet the requirements of the Immigration Rules. That was a weighty consideration, bearing in mind the public interest in the maintenance of effective immigration controls, which is a statutory factor under section 117B(1) of the 2002 Act, to which the judge referred at para. 116.
20. While it may have been helpful for the judge expressly to address the ‘historic’ best interests of the appellant from when she was a child, if only briefly, he reached a number of unchallenged findings of fact upon which any such assessment would have been based. Those findings would have been incapable of meriting a conclusion that the appellant’s best interests, at the date of the application in May 2020, were such that it was an error for the Secretary of State to refuse the application, or that it was disproportionate for the judge not to allow the appeal on the basis of her ‘historic’ best interests as a child.
21. The judge found at para. 119 that he had not been given a truthful and full account of the appellant’s living arrangements in Nigeria. The witnesses had given contradictory evidence about her circumstances. She has relatives in Nigeria, including relatives who had featured in the extensive messaging transcripts that were before the judge, and the sponsor had three older siblings who still lived in Nigeria. While some of the evidence had been that the appellant was looked after by an aunt who then contracted cancer, there was also evidence that she had lived with somebody called Eunice since February 2020. The judge also had concerns surrounding the limited adoption documentation and the late issue of the appellant’s date of birth. The judge found that the appellant’s remitted financial support could continue while she remained in Nigeria. In short, the appellant was well-cared for by a number of supportive family members in the country of her nationality and was financially comfortable. Her witnesses had sought to conceal from the judge her true circumstances in the country. Those are not findings which lay the foundation for a finding that the appellant’s ‘historic’ best interests militated in favour of the appeal being allowed, notwithstanding the remaining, unchallenged features of the judge’s proportionality assessment.
22. Further, as I observed to the parties at the hearing, the evidence recorded at para. 63 was that in the UK the appellant would have her own room in a two room rented accommodation in the UK, with the sponsor, and three other people living in the house. On any view, that would be a crowded, if not overcrowded, arrangement: at least five people would be living in a two bedroom home. It is difficult to see how it could have been in her best interests to be admitted to the UK to live in such conditions, in contrast to the circumstances in Nigeria that the appellant’s witnesses had been keen to keep from the judge.
23. Taking the appellant’s case at its highest, in light of the judge’s unchallenged findings of fact and the appellant’s inability to meet the Immigration Rules at the date of the application or hearing, in my judgment it was not an error of law for the judge not expressly to address the appellant’s past best interests as a child. Had he done so, the only conclusion that would have been open to him on the basis of his unchallenged findings of fact would have been that the appellant’s past best interests were in favour of maintaining the status quo of her residence in Nigeria.
24. For these reasons, this appeal is dismissed.
Notice of Decision
The appeal is dismissed.
The decision of Judge Hanley did not involve the making of an error of law such that it must be set aside.
Stephen H Smith
Judge of the Upper Tribunal
Immigration and Asylum Chamber
7 March 2023