IA/01727/2014
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The decision
IAC-AH-KEW-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01727/2014
THE IMMIGRATION ACTS
Heard at Field House
Decision and Reasons Promulgated
On 24th November 2014
On 29th December 2014
Before
DEPUTY UPPER TRIBUNAL JUDGE JUSS
Between
MS PEACE JANE AZUBUIKE
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Miss O Momoh (Counsel)
For the Respondent: Mr S Whitwell (HOPO)
DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Beg promulgated on 9th September 2014, following a hearing at Taylor House on 21st August 2014. In the determination, the judge dismissed the appeal of Peace Jane Azubuike. The Appellant applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a citizen of Nigeria, who was born on 8th January 1975. She appealed against the decision of the Respondent dated 10th December 2013, refusing her application for leave to remain in the UK on the basis of a breach of her human rights, having lived in the UK for very many years, and having had a child born here.
The Appellant's Claim
3. The Appellant's claim is that, although her visit visa expired on 13th September 2003, she has lived in the UK for ten years, albeit that period has been unlawfully spent here. She has been working in the UK, although this has been done on the basis of her use of a fake passport. However, she had a daughter born to her on 10th June 2007. The daughter's father is Eze Amadi and he is a Nigerian national, and is now married and living in Nigeria. The daughter herself, Angel Adaeze Amadi, is at school, has five cousins who visit her every two weeks, and is suffering from asthma and has treatment (see paragraph 8).
The Judge's Findings
4. The judge considered that the facts were essentially against the Appellant as far as her immigration history was concerned. She had arrived in the UK on 26th May 2003 and had overstayed by more than ten years. She had worked illegally until she was encountered when enforcement proceedings were made on 15th May 2013. She had used a counterfeit passport to gain employment. The judge had regard to the relevant authorities under Article 8 in this case (see paragraphs 16 to 18) and observed that although the child was suffering from asthma, and attended King's College Hospital, the drugs that she was on involved using an inhaler for her asthma, a double base gel in relation to her dry skin and a tablet (see paragraph 18). The judge concluded that this was treatment that the Appellant's child could receive equally well in Nigeria which has a number of large hospitals (paragraph 19).
5. Finally, the judge had to consider the public interests question, under the latest Rule changes and focussed upon Section 117B which makes the maintenance of effective immigration control now to be in the public interest. Employing the language in that provision, the judge concluded that "little weight" should be given to a private life that was established at a time when the applicant's immigration status was "precarious." She had a relationship in the United Kingdom and had a child in full knowledge that the child had no right to be here. She had shown little regard for the laws of the United Kingdom. Accordingly, she could not succeed (paragraph 28).
Grounds of Application
6. The grounds of application state that the Appellant was unrepresented at the hearing and had submitted her grounds without legal representation. The judge had erred in law by failing to take into account the evidence of the Appellant's child who had been resident in the UK for seven years. The judge failed to give proper consideration to Article 8. She also failed to consider Section 35 of the BCIA 2009.
7. On 17th October 2014, permission to appeal was granted. It was observed that, "the judge recorded that the child was age 7 and in those circumstances she should arguably also have considered the effect of Section 117B(6) of the Nationality, Immigration and Asylum Act 2002."
Submissions
8. In her submissions before me, Ms Momoh stated that she would rely upon the grant of permission by Judge Pooler. She relied upon the cases therein set out, namely, ZH (Tanzania) [2011] UKSC 4, Azimi-Moayed [2003] UKUT 00197; and MK (Best Interests of the Child) India [2011] UKUT 00475. She submitted that the child was in school and doing well there. She referred to the latest bundle from Equity Law Solicitors, dated 12th November 2014, which she stated reflected all the documentation that the Appellant herself had taken to the Tribunal before Judge Beg, although she herself could not vouch for this. The latest bundle was properly paginated and she asked that the court take this into account. Mr Whitwell objected stating that he did not have the original bundle before the First-tier Tribunal Judge and one could not be sure that the latest bundle from Equity Law Solicitors did not also have additional documents, given that this could not be checked. I decided that I would look at the original bundle that I had in my file for the purposes of the determination of the question as to whether there had been an error of law.
9. For his part, Mr Whitwell submitted that this was nothing more than a disagreement with the outcome of the decision. The mother was caught working illegally. At the date of the application her child was under 7 years of age. This was the relevant time. If one looked at Phelan (at page 1051) it was clear that Rule E-LTRPT.2.2 states that "has lived in the UK continuously for at least the seven years immediately preceding the date of application and paragraph EX.1 applies." The judge was right that the child was under 7 years of age at the date of the application. Second, even if the child was now 7 years of age, this did not matter because in Zoumbas [2013] UKSC 74, the age of the children was 7 years, 4 years, and 5 months' respectively. In that case, as in the instant case before this Tribunal, the children were not British citizens, and did not have the right to remain here. Subject to these submissions, Mr Whitwell relied upon the Rule 24 response of the Secretary of State.
10. In her reply Ms Momoh submitted that the age of 7 years was recorded at paragraph 23 of the determination and the judge should have made specific Article 8 findings on this basis, which was not done.
Error of Law
11. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA [2007]) such that I should set aside the decision. In what is otherwise a comprehensive and detailed determination, the judge at the end of the determination, whilst dealing with the question of Rule 117B(6) does not (see paragraph 27) then proceed to consider how the child's interests are to be analysed. At paragraph 28 of the determination, there is a reliance upon the fact that little weight should be given to private life that was established when immigration status was precarious. There is an analysis of the failings of the Appellant herself in overstaying and working illegally in this country.
12. However, the child's interests, both with respect to her "best interests" and also with respect to Section 55 of the BCIA 2009, are not evaluated. Still less, is there an analysis of the application of Article 8 to the facts in relation to the child, especially in relation to how she is doing at school, and the level of her integration.
13. Whereas the case law, in the way set out by the judge, and in the way explicated by Mr Whitwell before me, is now to the effect that removal of an offending parent is feasible even where there are young children born in the UK, there is still a need to make a careful analysis of the facts in relation to the child. The failure to make any findings in this context is an error of law.
14. The omission in this regard, may well be understandable, given that the Appellant herself was not represented before Judge Beg, and proper submissions were not made, apart from her giving evidence on her behalf. Since this was the case, I remit this matter now back to the First-tier Tribunal under Practice Statement 7.2, to be heard by a judge other than Judge Beg, so that the Appellant may have the opportunity to have the child's interests considered in the context of her own immigration failings.
Decision
15. 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. This matter is remitted back to a judge other than Judge Beg to be heard de novo for proper findings to be made in relation to the child. The appeal is allowed only to this limited extent.
16. No anonymity order is made.
Signed Date
Deputy Upper Tribunal Judge Juss 27th December 2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01727/2014
THE IMMIGRATION ACTS
Heard at Field House
Decision and Reasons Promulgated
On 24th November 2014
On 29th December 2014
Before
DEPUTY UPPER TRIBUNAL JUDGE JUSS
Between
MS PEACE JANE AZUBUIKE
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Miss O Momoh (Counsel)
For the Respondent: Mr S Whitwell (HOPO)
DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Beg promulgated on 9th September 2014, following a hearing at Taylor House on 21st August 2014. In the determination, the judge dismissed the appeal of Peace Jane Azubuike. The Appellant applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a citizen of Nigeria, who was born on 8th January 1975. She appealed against the decision of the Respondent dated 10th December 2013, refusing her application for leave to remain in the UK on the basis of a breach of her human rights, having lived in the UK for very many years, and having had a child born here.
The Appellant's Claim
3. The Appellant's claim is that, although her visit visa expired on 13th September 2003, she has lived in the UK for ten years, albeit that period has been unlawfully spent here. She has been working in the UK, although this has been done on the basis of her use of a fake passport. However, she had a daughter born to her on 10th June 2007. The daughter's father is Eze Amadi and he is a Nigerian national, and is now married and living in Nigeria. The daughter herself, Angel Adaeze Amadi, is at school, has five cousins who visit her every two weeks, and is suffering from asthma and has treatment (see paragraph 8).
The Judge's Findings
4. The judge considered that the facts were essentially against the Appellant as far as her immigration history was concerned. She had arrived in the UK on 26th May 2003 and had overstayed by more than ten years. She had worked illegally until she was encountered when enforcement proceedings were made on 15th May 2013. She had used a counterfeit passport to gain employment. The judge had regard to the relevant authorities under Article 8 in this case (see paragraphs 16 to 18) and observed that although the child was suffering from asthma, and attended King's College Hospital, the drugs that she was on involved using an inhaler for her asthma, a double base gel in relation to her dry skin and a tablet (see paragraph 18). The judge concluded that this was treatment that the Appellant's child could receive equally well in Nigeria which has a number of large hospitals (paragraph 19).
5. Finally, the judge had to consider the public interests question, under the latest Rule changes and focussed upon Section 117B which makes the maintenance of effective immigration control now to be in the public interest. Employing the language in that provision, the judge concluded that "little weight" should be given to a private life that was established at a time when the applicant's immigration status was "precarious." She had a relationship in the United Kingdom and had a child in full knowledge that the child had no right to be here. She had shown little regard for the laws of the United Kingdom. Accordingly, she could not succeed (paragraph 28).
Grounds of Application
6. The grounds of application state that the Appellant was unrepresented at the hearing and had submitted her grounds without legal representation. The judge had erred in law by failing to take into account the evidence of the Appellant's child who had been resident in the UK for seven years. The judge failed to give proper consideration to Article 8. She also failed to consider Section 35 of the BCIA 2009.
7. On 17th October 2014, permission to appeal was granted. It was observed that, "the judge recorded that the child was age 7 and in those circumstances she should arguably also have considered the effect of Section 117B(6) of the Nationality, Immigration and Asylum Act 2002."
Submissions
8. In her submissions before me, Ms Momoh stated that she would rely upon the grant of permission by Judge Pooler. She relied upon the cases therein set out, namely, ZH (Tanzania) [2011] UKSC 4, Azimi-Moayed [2003] UKUT 00197; and MK (Best Interests of the Child) India [2011] UKUT 00475. She submitted that the child was in school and doing well there. She referred to the latest bundle from Equity Law Solicitors, dated 12th November 2014, which she stated reflected all the documentation that the Appellant herself had taken to the Tribunal before Judge Beg, although she herself could not vouch for this. The latest bundle was properly paginated and she asked that the court take this into account. Mr Whitwell objected stating that he did not have the original bundle before the First-tier Tribunal Judge and one could not be sure that the latest bundle from Equity Law Solicitors did not also have additional documents, given that this could not be checked. I decided that I would look at the original bundle that I had in my file for the purposes of the determination of the question as to whether there had been an error of law.
9. For his part, Mr Whitwell submitted that this was nothing more than a disagreement with the outcome of the decision. The mother was caught working illegally. At the date of the application her child was under 7 years of age. This was the relevant time. If one looked at Phelan (at page 1051) it was clear that Rule E-LTRPT.2.2 states that "has lived in the UK continuously for at least the seven years immediately preceding the date of application and paragraph EX.1 applies." The judge was right that the child was under 7 years of age at the date of the application. Second, even if the child was now 7 years of age, this did not matter because in Zoumbas [2013] UKSC 74, the age of the children was 7 years, 4 years, and 5 months' respectively. In that case, as in the instant case before this Tribunal, the children were not British citizens, and did not have the right to remain here. Subject to these submissions, Mr Whitwell relied upon the Rule 24 response of the Secretary of State.
10. In her reply Ms Momoh submitted that the age of 7 years was recorded at paragraph 23 of the determination and the judge should have made specific Article 8 findings on this basis, which was not done.
Error of Law
11. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA [2007]) such that I should set aside the decision. In what is otherwise a comprehensive and detailed determination, the judge at the end of the determination, whilst dealing with the question of Rule 117B(6) does not (see paragraph 27) then proceed to consider how the child's interests are to be analysed. At paragraph 28 of the determination, there is a reliance upon the fact that little weight should be given to private life that was established when immigration status was precarious. There is an analysis of the failings of the Appellant herself in overstaying and working illegally in this country.
12. However, the child's interests, both with respect to her "best interests" and also with respect to Section 55 of the BCIA 2009, are not evaluated. Still less, is there an analysis of the application of Article 8 to the facts in relation to the child, especially in relation to how she is doing at school, and the level of her integration.
13. Whereas the case law, in the way set out by the judge, and in the way explicated by Mr Whitwell before me, is now to the effect that removal of an offending parent is feasible even where there are young children born in the UK, there is still a need to make a careful analysis of the facts in relation to the child. The failure to make any findings in this context is an error of law.
14. The omission in this regard, may well be understandable, given that the Appellant herself was not represented before Judge Beg, and proper submissions were not made, apart from her giving evidence on her behalf. Since this was the case, I remit this matter now back to the First-tier Tribunal under Practice Statement 7.2, to be heard by a judge other than Judge Beg, so that the Appellant may have the opportunity to have the child's interests considered in the context of her own immigration failings.
Decision
15. 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. This matter is remitted back to a judge other than Judge Beg to be heard de novo for proper findings to be made in relation to the child. The appeal is allowed only to this limited extent.
16. No anonymity order is made.
Signed Date
Deputy Upper Tribunal Judge Juss 27th December 2014