Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/18026/2016
HU/16927/2016
HU/18036/2016
HU/18047/2016

THE IMMIGRATION ACTS

Heard at Birmingham CJC
Decision & Reasons Promulgated
On 5th April 2019
On 30th April 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) A O-D
(2) C O-D
(3) E O-D
(4) F O-D
(ANONYMITY direction made)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: No legal representative
For the Respondent: Mr D Mills

DECISION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge A. J. M. Baldwin, promulgated on 16th March 2018, following a hearing at Hatton Cross on 8th March 2018, where the Secretary of State dismissed the appeals of the Appellants, whereupon the Appellants subsequently applied for, and were granted, permission to appeal to the Upper Tribunal, and thus the matter came before me.
The Appellants
2. The Appellants are a family of four. The first two Appellants are the father and the mother. The remaining two Appellants are their two children. The four Appellants were respectively born on 13th January 1972, 1st August 1974, 29th March 2008, and on 23rd December 2009. All are citizens of Nigeria.
The Appellants' Claim
3. The Appellants' claim arises from a refusal by the Respondent in a decision letter dated 27th May 2016, when they applied for leave to remain. The Respondent was satisfied that neither adult was a British citizen and none had settled status in this country. The Respondent also took the view that there was no proven insurmountable obstacles to the family returning to Nigeria where the two Appellants had spent most of their lives, and where it would be reasonable for the children to live with them, given that neither parent had resided here for twenty years and the obstacles that they might face in relocating to Nigeria was not very significant.
The Judge's Findings
4. The judge upheld the decision of the Respondent Secretary of State. He refused the appeal. He recognised that this was a case where "both children only have personal experiences of the UK where they were born". However, this was only because "their parents chose to remain here unlawfully in the full knowledge that they would have to return to Nigeria back in 2008, when their leave expired, but they failed to do so.
5. At the same time, the judge also recognised that the fourth child had behavioural problems which were "extremely challenging at school and that it required the school to provide one-to-one oversight of him". The judge further noted how,
"It was also clear that the parents have accepted his condition and have shown themselves to be exceptionally good parents who have the skills and understanding to cope with him. It is clear that the head teacher holds the parents in very high regard in this respect, particularly given the backdrop of them struggling financially" (paragraph 21).
6. The appeal was dismissed.
Grounds of Application
7. The grounds of application state that the judge failed to consider the best interests of the children, and failed to decide on a proper basis why it would be reasonable to expect the children to relocate from the United Kingdom to Nigeria, given that the eldest child had been living here now for over eight years, and had been born in the United Kingdom.
8. On 21st June 2018, permission to appeal was granted, with the observation that the judge had recorded (at paragraph 21) that both children, who were born in the UK, would have to return to Nigeria, but had failed to recognise that one of the children had now been in the UK for over seven years, and the Respondent's Family Migration Policy (February 2018), stood to be applied.
Submissions
9. At the hearing before me, the Appellants were not represented. The first and second Appellants appeared in person. The Respondent was represented by Mr Mills. That being so, Mr Mills submitted that this was a case where he would be prepared to concede that there had been an error of law in the judge's determination in failing to have regard to the Family Migration Policy of the Home Office, and in failing to give proper weight to the fact that the eldest child was in the UK for a period of over seven years. Indeed, by the time of this decision, the facts had changed to such an extent that the eldest child now was a British citizen, and had been so for the last one and half years. The second child, will turn 10 years of age in December 2019, and will also be eligible to apply for British citizenship.
10. In the circumstances, given the concession, I find that there has been an error of law in the judge's determination. I come to this conclusion because the "Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0b Family Life (as a partner or parent) and Private life: 10 Year Routes" makes it clear that,
"The requirement that a non-British citizen child has lived in the UK for a continuous period of at least the seven years immediately preceding the date of the application, recognises that over time children start to put down roots and integrate into life in the UK ?"
11. Indeed, the guidance goes on to say that in these circumstances, where the balance swings more in favour of a child such that it would be generally unreasonable to expect the child to leave the UK, the position is that "strong reasons will be required in order to refuse a case with continuous UK residence of more than seven years". Given that this was the case, the judge should have referred to this Home Office policy before carrying out the balancing exercise at paragraph 21 of the determination.
Remaking the Decision
12. I have remade the decision on the basis of the findings of the original judge, the evidence before the judge, and the submissions that I have heard today. I am allowing this appeal for the reasons that have already been set out above. This is a case where the eldest child now is a British citizen. The Secretary of State does not say that it would be reasonable for that eldest child to leave the UK. The parents will also therefore be able to stay in this country. The fourth Appellant, is 9 years of age, and suffers from Asperger's, and as the judge below recognised "presents very considerable challenges for his parents and his school", and the judge observed also that, "I accept that a change in [this child's] routine can cause a high level of anxiety and disorder" (paragraph 22). So the application of Section 117B(6) will fall in the Appellant's favour in these circumstances. I accordingly allow this appeal.
Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law, such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed.

An anonymity direction is made.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date
Deputy Upper Tribunal Judge Juss 25th April 2019

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have made a fee award of any fee which has been paid or may be payable.

Signed Date
Deputy Upper Tribunal Judge Juss 25th April 2019