Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03339/2015
HU/03342/2015
HU/03345/2015

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision and Reasons Promulgated
On 13th March 2017
On 16th March 2017

Before

UPPER TRIBUNAL JUDGE COKER

Between

JD
JO
AO
(Anonymity direction made)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Karim, instructed by A & A solicitors
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. 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 original appellants in this determination identified as JD, JO or AO. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings

1. JD is the mother of JO (born on 22 November 2010) and AO (born on 5th February 2013). All are Nigerian citizens. Both children were born in the UK and their father, a Nigerian citizen has no contact or engagement either with them or their mother. AO is very seriously disabled. On 22 April 2015, they applied for leave to remain in the UK by way of submission of an application form FLR (FP) based on their family and private life and requesting a grant of discretionary leave to remain. There is reference in the covering letter dated 21 April 2015 submitting the application to Article 3 and a submission that the youngest child meets the Article 3 threshold. Although the covering letter dated 21 April states that the family unit does not meet the criteria set out in the Immigration Rules, a subsequent letter dated 29 April 2015 states that JD meets paragraph 276ADE(1)(vi) of the Immigration Rules. The respondent’s decision dated 10 July 2015 considers the application under the Immigration Rules (appendix FM and paragraph 276ADE(1)) and separate consideration is given to whether there are “particular circumstances which constitute exceptional circumstances consistent with the right to respect for private and family life contained in Article 8…”. The respondent’s decision does not specifically refer to the request made for discretionary leave to remain or to the Article 3 submission on behalf of AO.
2. The grounds of appeal to the First-tier Tribunal were filed out of time (29th July 2015) although it appears that either an extension of time was granted or no adverse point was taken. The grounds assert that the decision is a breach of Article 3. The grounds do not assert the decision is a breach of Article 8.
3. Before First-tier Tribunal Judge A M Black, the appellants conceded, through counsel, that they did not meet the criteria in the Immigration Rules for the grant of leave to remain and that the decision did not engage Article 3. Judge Black determined the appeal as an appeal against the decision to refuse the human rights claim on Article 8 grounds. She dismissed the appeal.
4. Permission to appeal the decision of the First-tier Tribunal was sought on the following grounds:
(a) The First-tier Tribunal judge failed to properly or adequately identify and apply the factors in EV (Philippines) [2014] EWCA Civ 874 relevant to the proportionality assessment of Article 8; the assessment of the proportionality of the decision was materially flawed;
(b) The First-tier Tribunal judge erred materially in her approach to the evidence of the social worker and the doctor; failed to assess whether the removal of the family and the disruption to the status quo would have a detrimental impact on the children;
(c) That it was irrational and erroneous for the judge to conclude that adequate facilities for establishing causation and treatment for the disabilities of the youngest child would be available and accessible to the youngest child;
(d) Article 3 is engaged bearing in mind the youngest child is a minor and s55 Borders, Citizenship and Immigration Act 2009 applies;
(e) The First-tier Tribunal failed to consider adequately or at all whether paragraph 276ADE (1) (vi) was satisfied.
5. Permission to appeal was granted by UTJ Taylor on all grounds but comment made that the failure to consider paragraph 276ADE(1)(vi) was the strongest.
6. Before me Mr Karim submitted that the concession by counsel before the First-tier Tribunal that the appellants did not meet the criteria in Paragraph 276ADE(1) or that the threshold of an Article 3 claim was not met was an error. He submitted that s55 applied and thus the considerations were different both in terms of the question of insurmountable obstacles and how the threshold of Article 3 was met. These were not arguments advanced before the First-tier Tribunal. There was a specific concession by the legal representatives. The judge cannot be held to be in error for failing to consider submissions that were not made, criteria that were specifically not relied upon and for accepting a concession that the threshold in Article 3 could not be met and the criteria in paragraph 276ADE(1) could not be met. As Mr Clarke submitted, it is not open to litigate issues that were not before the First-tier Tribunal when determining whether there is an error of law in the First-tier Tribunal decision.
7. There is no error of law by the First-tier Tribunal judge in failing to address Article 3 or paragraph 276ADE(1).
8. The grounds of challenge remaining upon which permission was granted, are, essentially, that the judge failed, in reaching her conclusion on the proportionality of the decision to refuse leave to remain on Article 8 grounds, to have adequate regard to material matters, including s55. EV (Philippines) holds:
34. In determining whether or not, in a case such as the present, the need for immigration control outweighs the best interests of the children, it is necessary to determine the relative strength of the factors which make it in their best interests to remain here; and also to take account of any factors that point the other way.
35. A decision as to what is in the best interests of children will depend on a number of factors such as (a) their age; (b) the length of time that they have been here; (c) how long they have been in education; (c) what stage their education has reached; (d) to what extent they have become distanced from the country to which it is proposed that they return; (e) how renewable their connection with it may be; (f) to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and (g) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens.
36. In a sense the tribunal is concerned with how emphatic an answer falls to be given to the question: is it in the best interests of the child to remain? The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child's best interests that he should not return, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child's best interests to remain, but only on balance (with some factors pointing the other way), the result may be the opposite.
37. In the balance on the other side there falls to be taken into account the strong weight to be given to the need to maintain immigration control in pursuit of the economic well-being of the country and the fact that, ex hypothesi, the applicants have no entitlement to remain. The immigration history of the parents may also be relevant e.g. if they are overstayers, or have acted deceitfully.
9. Mr Karim submitted the First-tier Tribunal judge had not considered the reports by AO’s doctor or the social worker with regard to the disruption it would cause to the family unit and the consequences to the family of return. He submitted that the authors of the reports did not purport to be experts in relation to conditions in Nigeria but rather the impact on the family and the youngest child of disruption. He submitted that given the cause and therefore the required long term treatment for the youngest child was yet unknown, it was irrational for the judge to conclude that adequate facilities would be available for the child or that the mother would be able to find employment which would be able to sustain access to that medical investigation and consequent treatment. Although he accepted that no evidence had been filed by the appellants about the possibility of employment or lack of employment or the cost of treatment and medical investigation and care, it was reasonable to assume it would be costly and that the mother would be unlikely to be able to obtain employment that could cover those costs. He referred to the finding of the judge that there were no relatives in Nigeria who could be expected to assist. He submitted that it was pure speculation on the part of the judge to conclude that the first appellant would be able to find employment and that adequate care and medical treatment would be available for the youngest child, given that there had yet to be a diagnosis of his medical problems. He submitted the respondent bore a responsibility to consider the best interests of the children and in particular the youngest child in the light of the child’s serious and severe and lifelong disability.
10. Mr Clarke submitted that the decision of the First-tier Tribunal could be described as a ‘text-book’ analysis of proportionality. The judge had, he submitted, considered in detail all the evidence about the family including inter alia background evidence relied on by the respondent which had not been repudiated by the appellants. The judge refers to the mother’s length of residence in the UK (albeit unlawful), the very serious disability of the youngest child, the medical evidence, the social worker evidence, the first appellant’s work history, that she has no family, the educational facilities likely to be available in Nigeria, the lack of relatives in Nigeria, the availability of care for children with disabilities in Nigeria, the discrimination likely to be faced in Nigeria by the child. The judge, he submitted, accepted the appellants’ described circumstances at their highest. She considered the best interest of the children independently and made reasoned findings that were rationally open to her. He submitted that it was ‘pure speculation’ to assert that the judge’s conclusions on the family’s ability to cope in Nigeria were inadequate – no evidence of lack of job opportunity or associated lack of ability to pay for medical costs and other care had been submitted; that the youngest child was still subject to medical investigation did not render the decision of the judge irrational. It was rational for the judge to consider the evidence that was before her about the availability of medical care and treatment and jobs, in reaching an assessment as to the proportionality of the decision without considering the potential future diagnosis and unspecified treatment in the absence of anything to call into question the background evidence relied on by the respondent. He submitted that there had been no evidence before the First-tier Tribunal judge on the impact of removal either on the children or the first appellant and to construe the social worker report and doctor’s report in that light was not sustainable.
Error of law
11. The decision of the First-tier Tribunal judge does not omit consideration of any of the evidence before her. She considered the evidence at its highest and accepted that evidence at its highest. This is plainly a very sad situation and the judge wholly accepts the youngest child will not have access to the same level of medical and other care and support as is available in the UK. There was no evidence as to the cost of care or treatment or employment in Nigeria put before the judge by the appellants. The judge was entitled to reach conclusions based on the evidence before her. It is not speculative, based on the evidence before her, to conclude that, given her qualifications and experience, the first appellant could expect to find employment in Nigeria. It is not speculative, based on the evidence before her, to conclude that the child will be able to access an adequate level of care and support. Although the child was still undergoing medical investigation to ascertain the cause of his disability there was no suggestion that the care he required either at the date of hearing or in the future could foreseeably change. The judge accepted that the medical care the child would receive in Nigeria may not be of the same standard as that in the UK but the lack of diagnosis does not render the conclusion that flowed from that, in the context of the evidence, irrational. There was no evidence before the judge of any adverse impact on the children or the first appellant of their removal to Nigeria. The reports of the social worker and doctor do not address those issues and are directed to the situation in the UK. The reports do not state that disruption in existing support will have a significant adverse impact or what the consequences, if any, would be. The reports do not, from an expert’s perspective, consider the contrast between medical care and treatment in the UK and that available in Nigeria and the consequences of that for the mother, the children or the family unit. That there will be a difference in the family situation in Nigeria is evident from the background material that was before the judge but it is simply not possible to conclude, from the evidence before the judge, that her findings were irrational or perverse. The judge was plainly sympathetic to the family but her findings were open to her on the evidence before her. She considered the best interests of the children independently and considered the whole of the evidence, taking account of the factors in favour of remaining in the UK and of not.
12. There is no material error of law in the First-tier Tribunal judge’s decision. The decision was open to her on the evidence before her.

Conclusions:
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 the decision
The decision of the First-tier Tribunal stands.

Anonymity
The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

Date 14th March 2017

Upper Tribunal Judge Coker