(Immigration and Asylum Chamber) Appeal Numbers: hu/21082/2018
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 5 June 2019
On 13 June 2019
DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON
a B e
master S d E
master h d e
(anonymity direction made)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellants: Mr M E (First appellant's husband)
For the Respondent: Mr J McGirr, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellants are Nigerian nationals, the first appellant is the mother of the second and third appellants. The first appellant initially entered the UK on 9 April 2009 with a valid Tier 4 dependant visa with the second and third appellants entering as Tier 4 dependants on 13 March 2011. Further visas were granted. On 11 November 2013 the appellants applied for further leave to remain which was refused by the respondent. The appellants' appeal against that refusal was dismissed by a First-tier Tribunal Judge on 11 November 2014 and the appellants subsequently withdrew their appeal to the Court of Appeal. On 29 May 2018 the appellants applied for leave to remain on the basis of their family and private life. The respondent refused that application on 18 September 2018. In a decision, determined on the papers on 7 December 2018 and promulgated on 23 January 2019, Judge of the First-tier Tribunal Cox dismissed the appellants' appeals on human rights grounds.
2. The appellants, who were unrepresented other than by the husband of the first appellant and the father of the second and third appellants, appeal with permission from Deputy Upper Tribunal Judge Doyle on the basis that it was arguable that the judge's Article 8 assessment was inadequate given the guidance (which postdated Judge Cox's decision) given by the presidential tribunal in JG (Section 117B(6): "reasonable to leave" UK) Turkey  UKUT 72 (IAC).
Error of Law Decision
3. Mr McGirr for the respondent conceded at the outset that given what was said by the Upper Tribunal in JG and by the Court of Appeal in the subsequent case of AB (Jamaica) and AO (Nigeria)  EWCA Civ 661, the judge's findings on Article 8 were untenable.
4. I agree that the judge's conclusion at  is inadequate and the First-tier Tribunal at least needed to grapple with whether or not the family would in fact potentially be separated, and made findings on the consequences, including given the then pending application for indefinite leave to remain by the first appellant's husband.
5. In addition, Mr McGirr submitted that the judge also would have needed to take into consideration the then (November 2018) Home Office guidance, which was subsequently updated in April 2019 and which Mr McGirr confirmed had again been withdrawn for further updating. Mr McGirr also indicated that although KO (Nigeria)  UKSC 33 was cited, this was not further developed.
6. Given Mr McGirr's clear concession I agree that the Judge of the First-tier Tribunal materially erred in law in inadequately reasoning his Article 8 assessment.
7. In terms of remaking the decision, it transpired that the first appellant's husband is currently awaiting the outcome of his paper appeal against the decision of the respondent to refuse his indefinite leave to remain. Mr McGirr submitted and I agree that the appeals should be remitted to the First-tier Tribunal pending the outcome of the first appellant's husband's paper appeal which Mr McGirr submitted would be potentially determinative of the appeals of the appellants, it being Mr McGirr's submission that if the husband of the first appellant was successful in obtaining indefinite leave to remain the respondent would be unlikely to continue to oppose the appellants' appeals. However, that is not the position that the appellants are currently in.
8. Although it is a matter for the appellants they may wish to consider obtaining legal representation for when their appeal comes before the First-tier Tribunal for an oral hearing. As pointed out at the error of law hearing Judge Cox had noted the paucity of evidence including of the children's lives in the UK.
Notice of Decision
9. The decision of the First-tier Tribunal contains an error of law and is set aside. The decision is remitted to the First-tier Tribunal, other than to Judge Cox, for a fresh oral rehearing.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Given that the second and third appellants are minors I make an anonymity direction.
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 12 June 2019
Deputy Upper Tribunal Judge Hutchinson
TO THE RESPONDENT
No fee application was sought or is made.
Deputy Upper Tribunal Judge Hutchinson