Tribunal decisions

The decision

IAC-AH-SC-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10928/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 30th January 2017
On 13th February 2017

Before

DEPUTY upper tribunal JUDGE RENTON

Between

Yetunde Adenike Oloruntola
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Unrepresented
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The Appellant is a female citizen of Nigeria born on 8th December 1979. Having entered the UK sometime in November 2005, the Appellant applied for leave to remain on 24th August 2015 as the mother of her three children. Her children are Sugun Marcus Oloruntola born 6th June 1998, Precious Temitope Oloruntola born on 8th February 2005, and Chantelle Queen Oloruntola born on 6th August 2009. At that time the first two such children had been resident in the UK for over seven years. That application was refused for the reasons given in the Respondent's letter of 23rd October 2015. The Appellant appealed, and her appeal was heard by First-tier Tribunal Judge Ghani (the Judge) sitting at Birmingham on 9th June 2016. He decided to dismiss the appeal for the reasons given in his Decision dated 27th June 2016. The Appellant sought leave to appeal that decision, and on 8th November 2016 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error of law on a point of law so that it should be set aside.
3. The Judge dismissed the appeal under the provisions of paragraph 276ADE(1)(vi) of HC 395 as he found that there were no very significant obstacles to the Appellant's integration back into Nigeria. As regards Appendix FM, the Judge found that the Appellant could not qualify under the partner route as she had no partner in the UK. The Judge also considered the provisions of paragraph EX.1 as regards the Appellant's children. The Judge accepted that the Appellant had a genuine and subsisting relationship with all of her children, but that at the date of the hearing Sugun was aged 18 years. As regards the remaining children, the Judge found Precious to be a qualifying child, but that it would be reasonable to expect this child to leave the UK with her mother. Finally, the Judge found that Chantelle was not a qualifying child as she had not been continuously resident in the UK for seven years. Finally, the Judge found that the Respondent's decision was proportionate as regards the Appellant's Article 8 ECHR rights.
4. At the hearing before me the Appellant appeared unrepresented, but she referred to the grounds of application and argued that in reaching his decisions, the Judge had erred in law by failing to take into account the risk to the children of being subjected to Female Genital Mutilation (FGM) if they return to Nigeria. Further, the Judge had given insufficient weight to the fact that the children knew nothing of life in Nigeria, and were doing well in school in the UK.
5. In response, Mr Diwnycz referred to the Rule 24 response and submitted that there had been no such error of law. The Judge had recorded the Appellant's fears concerning FGM at paragraph 26 of the Decision, and at paragraph 30 had dealt with that issue sufficiently using a finding of First-tier Tribunal Judge Birk in a previous appeal brought by the Appellant. The Judge was entitled to do so following the decision in Devaseelan.
6. I find no error of law in the decision of the Judge which I therefore do not set aside. It is wrong to say that the Judge did not consider the FGM issue.
7. As Mr Diwnycz said, the Judge recorded what the Appellant said about the matter in the Decision, and there was no error of law in the Judge subsequently dealing with the issue by way of applying the Rule in Devaseelan and relying upon an earlier decision of a First-tier Tribunal Judge that there was no such objective fear. This decision informed the Judge's later decision that it would be reasonable and in her best interest for Sugun to remain with her mother and return to Nigeria. As regards Article 8 ECHR, the Judge dealt with that issue at paragraph 39 of the decision by again following the previous decision of First-tier Tribunal Judge Birk which the Judge was entitled to do.
8. For these reasons I find no error of law in the decision of the Judge.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside that decision.
The appeal to the Upper Tribunal is dismissed.
Anonymity
The First-tier Tribunal did not make an order for anonymity. I was not asked to do so, and indeed find no reason to do so.

Signed Date

Deputy Upper Tribunal Judge Renton