Tribunal decisions

The decision

UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Appeal No. HU/02443/2015
HU/14195/2016

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 1 February 2017
On: 3 February 2017

Before

Upper Tribunal Judge Pitt

Between

Secretary of State for the Home Department
Appellant
and

JE
SAM
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Tufan, Senior Home Office Presenting Officer
For the Respondent: Not represented

DECISION AND REASONS

1. This is a re-making of an Article 8 appeal following the error of law decision of Deputy Upper Tribunal Judge Chalkley dated 9 December 2016 which set aside the determination of First-tier Tribunal Judge Kelly dated 11 July 2016.
2. For the purposes of this decision I refer to the Secretary of State as the respondent and to JE and SAM as the appellants, reflecting their positions before the First-tier Tribunal. I also refer to JE as "the appellant" as she is the adult in this matter and the person conducting the litigation on behalf of SAM, her daughter.
3. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I continue the anonymity order made by the First-tier Tribunal. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellants. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so in order to avoid a likelihood of serious harm arising to SAM, a minor.
4. The appellant was not represented before me. She confirmed that she was prepared to present her case herself and that her English was good enough to do so. She was clear that she did not want further time to obtain legal representation. I heard from the appellant, went through her documents with her and heard from Mr Tufan, reserving my decision at the end of the hearing.
5. The undisputed background to this matter is that the appellant, a Nigerian national born in 1970 has been in the UK without leave since at least 2005. Her daughter, SAM, was born to a Nigerian national on 10 April 2008. She has never had any form of leave. It was agreed before me that SAM is a Nigerian national. On 3 July 2015 the appellants applied for leave to remain under Article 8 ECHR. The respondent refused that application on 10 July 2015.
6. The respondent did not find that the appellants qualified for leave under the provisions of Appendix FM or paragraph 276DE. The respondent accepted that SAM had been in the UK continuously for at least 7 years immediately preceding the date of application. She therefore assessed whether, in line with paragraph EX.1 of Appendix FM and paragraph 276ADE(iv) of the Immigration Rules whether it was reasonable for SAM to leave the UK.
7. At paragraphs 18 and 19 of the decision, the respondent set out her view that notwithstanding 7 years' continuous residence it was still reasonable for SAM to return to Nigeria with her mother. Although she had been born in the UK, SAM had not spent her formative years in the UK and was of an age to adapt to life in Nigeria. There was nothing indicating that SAM would not thrive in Nigeria and do well at school there. It was also not accepted that the appellant would have significant difficulties reintegrating in Nigeria having spent at least 31 years there prior to coming to the UK.
8. The respondent also found that there would be no compelling circumstances that should lead to leave being granted under Article 8 outside the Immigration Rules. In essence, this was for the same reasons as set out above. The respondent relied on country evidence showing that free education from the age of 6 to 15 was available in Nigeria. It was not accepted that a differential in the health care systems of the UK and Nigeria amounted to compelling circumstances. It was not accepted that the appellant's subjective fears of mistreatment of SAM because of customary rights was a relevant criterion in the Article 8 assessment and she was advised of the provisions for making a protection claim.
9. The appellant maintained that it was not reasonable for her daughter to return to Nigeria. She had only experienced life in the UK and would find Nigeria very hard. The economic situation there would make it very hard for her to find work to support them and they would become destitute. The only schools that offered a reasonable education were private and she would not be able to pay for this. There were no family members to look to for support, the only relative still living in Nigeria being her elderly mother who lived in straitened circumstances in a single room.
10. The first assessment that I must conduct is whether it is "reasonable" for SAM to go to Nigeria after living in the UK since she was born here in order to establish whether paragraphs EX.1 and paragraph 276ADE(iv) are met and the appeal allowed under the Immigration Rules.
11. When conducting that assessment, I referred to the guidance from the Court of Appeal in the case of MA (Pakistan) [2016] EWCA Civ 705. The case addresses the correct approach to an assessment of "reasonableness" under paragraph 276ADE(iv) and section 117B(6) of the Nationality, Immigration and Asylum Act 2002. The Court of Appeal in MA, with some reluctance, at [45] adopted the ratio of MM (Uganda) [2016] EWA Civ 450 to the effect that in the reasonableness assessment either under or outside the Immigration Rules, the "wider public interest considerations must be taken into account". Those include the immigration history of the parent and wider factors such as the situation for the child on return, ability to integrate, access education and so on.
12. This was so, albeit, at [46], the Court identified that residence of seven years or more remained a significant factor, setting out that:
"? the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled "Family Life (as a partner or parent) and Private Life: 10 Year Routes" in which it is expressly stated that once the seven years' residence requirement is satisfied, there need to be "strong reasons" for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment."
13. At [47] of MA (Pakistan), the Court of Appeal also identified that even if a child's best interests were in staying in the UK:
"? it may still not be unreasonable to require the child to leave. That will depend on a careful analysis of the nature and extent of the links in the UK and in the country where it is proposed he should return."
and at [54]:
"There is nothing intrinsically illogical in the notion that whilst it is in the child's best interests are for him or her to stay, it is not unreasonable to expect him or her to go. That is so even if the reasonableness test should be applied so as to exclude public interest considerations bearing upon the parents."
14. I must therefore conduct "a careful analysis of the nature and extent of the links in the UK and in the country where it is proposed" to send SAM. Her residence of 7 years clearly shows strong links to the UK and creates a strong indication that her best interests lie in remaining in the UK with her mother. The materials before me did not show additional factors beyond her residence and education in primary and junior school that added to the degree of her links to the UK. She has never visited Nigeria so her links are only through her mother. There was no reason to doubt the appellant's evidence that only her elderly mother remained in Nigeria and that she was not in a position to accommodate or otherwise assist the appellant or SAM on return.
15. The appellant also explained, however, that prior to coming to the UK she had a job with Shell as a cashier, working in Port Harcourt. She was able to find good employment in Nigeria before coming to the UK, therefore. She has also worked extensively in the UK since coming here and continued to do so as a single parent after her daughter was born, albeit she is currently not permitted to work. Her history is not of someone unable to find work or act resourcefully. Nothing suggested that the respondent's country evidence as to the availability of free education up until the age of 15 was incorrect. The free education available may well be of a different standard to that available in the UK but that difference did not appear to me to be capable of amounting to a factor showing that it would not be reasonable for SAM to return to Nigeria. There is also the long-term overstaying of the appellant to factor into the reasonableness assessment.
16. The respondent's also sought to rely on her records showing an entry clearance application made using a passport in the appellant's name in Nigeria on 31 May 2005. The respondent indicated at paragraph 27 of the refusal letter that this showed that the appellant had been in the UK for only 10 years as of the date of the decision rather than 13 years. That did not appear to me to make a material difference in the reasonableness assessment. The refusal letter did not suggest that the entry clearance application to the appellant otherwise showed material deception, only that she could be better shown to have retained social and cultural ties with Nigeria. The appellant has always been clear that she does not know how the entry clearance application was made and considered that she had been a victim of fraud that occurred, in her view, relatively frequently in the Nigerian community.
17. After considering all of these factors, my conclusion was that the evidence here showed that SAM's best interests lay in remaining in the UK with her mother because of her much stronger links to the UK and very limited links to Nigeria where even with her English language skills and UK education life would be less advantageous for her even after the initial difficult readjustment because of the more limited opportunities for her.
18. It was not my judgement that it was unreasonable for SAM to live in Nigeria, however. As above, her mother's background suggests that she can be expected to find work to support them and that SAM will be able to go to school at least up to the age of 15. Those circumstances also fall to be weighed alongside the appellant's serious overstaying. I did not find that the requirements of pargraph EX.1 or 276ADE(iv) were met and refused the Article 8 appeal under the Immigration Rules.
19. I must also assess whether the decision is disproportionate under Article 8, outside of the provisions of the Immigration Rules. This is a freestanding assessment albeit consideration must be taken of the respondent's legitimate policy position on Article 8 as expressed in the Immigration Rules. The provisions of s.117B of the Nationality, Immigration and Asylum Act 2002 must also be applied.
20. The public interest in effective immigration control inevitably weighs against the appellants as they are unable to meet the policy provisions of the Immigration Rules. The appellant and SAM's proficiency in English is a neutral factor. The appellant cannot be said to be financially independent, a factor weighing against her, following s.117B(3).
21. This free-standing assessment of the private life of SAM must take into account her residence here of nearly 9 years which I accept adds weight to the appellants' side of the balance compared to the assessment under the Immigration Rules. Also, the assessment here must include the long residence of the appellant as well as SAM. That, however, attracts little weight following s.117B(4) as the appellant has been here illegally for almost all of the time that she has been in the UK.
22. Also, as clarified by the President of UTIAC at [44] of Treebhawon and Others (NIAA 2002 Part 5A - compelling circumstances test) [2017] UKUT 00013 (IAC), a threshold of "compelling circumstances" must be met if an Article 8 claim is to succeed outside the Immigration Rules.
23. It was my view that the only really significant difference in this second assessment was the longer, 9 year residence of SAM and I considered this carefully before reaching a conclusion. This factor fortified the conclusion that SAM's best interests lay in remaining in the UK and increased the difference in her links here with those in Nigeria. Even taking this into account, however, it was not my conclusion that the circumstances of the appellant and SAM on return to Nigeria could be said to be sufficiently compelling so as to outweigh the public interest in effective immigration control. The availability of education, the economic activity of the appellant in the past in Nigeria and in the UK and the appellant's poor immigration history, in the final evaluation, were sufficient for the respondent's decision to be a proportionate one.
DECISION
24. The decision of the First-tier Tribunal discloses an error on a point of law such that it is set aside to be re-made.
25. The appeal is re-made as refused on all grounds.

Signed: Date: 2 February 2017
Upper Tribunal Judge Pitt