Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/21215/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 December 2018
On 14 January 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

ms Iyabo Stella Olatunji
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr M West, Counsel instructed by Supreme Solicitors
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

DECISION AND REASONS

Background
1. The appellant is a national of Nigeria born on 13 August 1978 who appealed to the First-tier Tribunal against the decision of the respondent dated 25 August 2016 to refuse her application for leave to remain in the United Kingdom. In a decision and reasons promulgated on 27 September 2018, Judge of the First-tier Tribunal Swinnerton dismissed the appellant's appeal.
2. The background to the appellant's case is that she claims to have entered the UK on 25 January 1995 as a visitor although there is no trace of the appellant ever having been issued a visitor visa. On 11 May 2016 she applied for leave on the basis of her private life. The respondent was not satisfied that there were very significant obstacles to the appellant's integration into Nigeria if she were required to leave the UK and it was not accepted that there was anything exceptional about her circumstances that might warrant a grant of leave.
3. The appellant appeals on the following grounds:
(1) failure to assess proportionality outside of the Immigration Rules;
(2) failure to give reasons for finding that there were no compelling circumstances in the appellant's case;
(3) failure to consider the objective evidence set out at pages 31 to 48 of the appellant's bundle. This included evidence relating to the position of women in Nigeria.
Discussion
4. Mr West submitted that there was error in the judge's reliance on the now superseded case of SS (Congo) [2015] EWCA Civ 287 and his failure to consider Article 8 outside of the Immigration Rules (as highlighted in the Supreme Court in the cases of MM (Lebanon) and Others v Secretary of State for the Home Department [2017] UKSC 10 at [58]. Hesham Ali (Iraq) v Secretary of state for the Home Department [2016] UKSC 60 SC and R (Agyarko); R (Ikuga) [2017] UKSC 11 confirmed that the question to be determined is whether a fair balance has been struck using the structured approach to proportionality.
5. However, Mr West was unable to identify what the materiality of any such error was. Although he pointed to the appellant's work and the prospects of her obtaining work in Nigeria as a single woman the judge took into consideration all the factors and noted, at [18], that the documentation provided by the appellant consisted of a bundle of 50 pages including amongst other things a number of letters of support for the appellant (and he specifically detailed some of that evidence). The judge noted that the appellant had made available the original documentation that had been provided to the respondent with the application and noted that there was a letter in support from the Nigerian Islamic community in Essex.
6. There was no challenge to the judge's finding at [19] that there was no trace of the appellant having entered the UK legally and that she had been in the UK illegally throughout her time and that she had worked without having the right to do so and that her immigration status has always been precarious. Although, therefore, there may not have been any specific mention when the judge gave his ultimate conclusions at [22] in relation to private life matters, of the Section 117B factors for example, it is clear that the judge had these in mind including in reaching the conclusions he did at [19].
7. Mr West was also unable to identify how a failure to specifically cite or even consider Section 117B, if that is in fact what the judge did, could be a material error given that the factors considered there could at best only be neutral factors for the appellant and as Mr Avery pointed out the judge would have been bound to find that little weight should be attached to the appellant's private life. Although I take into account what was said in Treebhawon and Others (NIAA 2002 Part 5A - compelling circumstances test: Mauritius) [2017] UKUT 13 (IAC), that a private life might conceivably qualify to be accorded more than little weight, reading the findings of the First-tier Tribunal holistically, the judge in this case was not satisfied that the appellant had demonstrated that hers was such a case.
8. The judge found, at [20], that the appellant was more than likely to have lived in the UK since 2004 and not in 1995 as the appellant claims, for the adequate reasons given and there was no specific or sustainable challenge to those findings. The judge also went on to find that there was no credible evidence that the appellant had been trafficked and the judge found this claim to be "little more than fanciful".
9. At [22] the judge considered the appellant's ties to Nigeria including that she was a member of the Nigerian Islamic community in the UK and although Mr West submitted that the evidence in support was not adequately considered the judge considered that the letters in support of her appeal came from other members of the Nigerian community so it was clear that the judge had these in mind. The judge notes that the appellant acknowledged she had other family members in Nigeria although she stated she did not contact them and was not in touch with them.
10. The judge was entitled to find as he did that the appellant had spent the majority of her life in Nigeria and spoke a native Nigerian language, Yoruba, as well as English. The judge also took into account that she was not a partner and had no children. The judge had also noted that the appellant had fertility issues. Although the judge did not specifically reference the background material which was before him in respect of discrimination that a single woman might face in Nigeria that is not a material error. I have reminded myself what was said in MD (Turkey) v SSHD [2017] EWCA Civ 1958 that adequacy means no more nor less than that. It is not a counsel of perfection. Still less should it provide an opportunity to undertake a qualitative assessment of the reasons to see if they are wanting, perhaps even surprising, on their merits. The purpose of the duty to give reasons, is in part, to enable the losing party to know why he has lost.
11. I was not pointed to anything that might have made a material difference to the judge's ultimate conclusion that there was nothing that would amount to very significant difficulties for the appellant in reintegrating into Nigeria and that in doing so she could be assisted with the large amount of support and friends that she has within the Nigerian community in the UK.
12. The judge's reasoning at [22] is described by Mr West as brief. That is perhaps unfair. Even if it were not, brevity is not an error of law. The judge addresses all the material issues and reaches sustainable findings. Although Mr West made a valiant attempt to persuade me otherwise he was unable to point to anything substantive that might have led any other judge to reach a different conclusion.
13. No material error of law is disclosed. The decision of the First-tier Tribunal does not disclose an error of law and is maintained. The appellant's appeal is dismissed.

No anonymity direction was sought and none is made.

Signed Date: 28 December 2018

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed and there can be no fee award.

Signed Date: 28 December 2018

Deputy Upper Tribunal Judge Hutchinson