Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/03277/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 October 2016
On 26 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

V O
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Braganza, counsel
For the Respondent: Mr Avery, Home Office Presenting Officer

DECISION AND REASONS

Anonymity order
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269), we 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 Appellant or his wife. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

1. The appellant is a Nigerian citizen born on 19 June 1966.
Permission to appeal and error of law
2. The appellant had applied for leave to remain on the grounds of his family life. This was refused under paragraph 322(1), Appendix FM and paragraph 276ADE of the Immigration Rules and a decision was taken to remove the appellant pursuant to s47 of the Immigration, Asylum and Nationality Act 2006. The appellant appealed against that decision and his appeal was dismissed by First-tier Tribunal Judge MacDonald ("the FTTJ") in a decision and reasons promulgated on 2 October 2015. He was refused permission to appeal by the First-tier Tribunal but this was granted by Upper Tribunal Hanson on 4 August 2016.
3. On 13 September 2016 I found there was an error of law in the findings of the FTTJ because he had departed from the concession of the respondent that the appellant had a genuine and subsisting relationship with one of his children. Although he was not bound to accept that concession, his departure from a position established as true by both parties required explanation and there was none in his findings. As a result, the reasonable inference was that the FTTJ had misunderstood or failed to consider the evidence. This was an error of law (SS v SSHD [2010] CSIH 72).
4. In view of the appellant's evidence that his elder daughter had not, at the date of the hearing in the First-tier Tribunal, known about his precarious immigration status but that, by the time of the error of law hearing before me, she had been told about, I adjourned the hearing to enable her to give evidence at a resumed hearing on the substantive issues. I directed, since there was no challenge to them, that the FTTJ's record of the evidence of the appellant himself and his former partner, should be preserved (ie [20-41] of the FTTJ's decision).
5. The FTTJ's findings on Article 3 were also preserved at [92-103] because there was no challenge to those findings in this Tribunal.
6. I now remake the decision of the FTTJ insofar as it addressed the appellant's Article 8 claim.
The Evidence
7. Prior to the start of the hearing, Ms Braganza for the appellant, sought to adduce further documents which had not been served in accordance with the directions made at the error of law hearing. Mr Avery did not object to those documents being adduced and I therefore take them into account. They are a King's College Hospital discharge notification relating to the appellant, a letter relating to proposed physiotherapy for the appellant and an invoice receipt issued by Southwark Mediation Centre.
8. Mr Avery, for the respondent, sought to rely on a screenprint from the respondent's computer records to the effect that the police had asked for a status check on the appellant following his arrest on suspicion of possession of an offensive weapon on 24 June 2016. Ms Braganza initially objected to this being admitted in evidence. She then took instructions and withdrew that objection on the basis that the appellant was permitted to adduce evidence rebutting the suggestion that the appellant had been charged with an offence on that occasion: she produced a Bail Cancellation Notice issued because there was insufficient evidence to proceed.
9. I also have before me the evidence which was adduced in support of the appeal before the First-tier Tribunal in the form of the appellant's and respondent's bundles. I also have the appellant's elder daughter's witness statement which was prepared for the hearing before me.
10. The evidence before the First-tier Tribunal is set out at [20 -41] of the FTTJ's decision. I also heard from the appellant who gave oral evidence at the hearing before me.
11. The appellant is an educated man: he has an HND in finance.
12. The appellant is a wheelchair user and has been since May 2012 when he had an operation which was not wholly successful. He has carers who assist him with personal hygiene, his purchases and his needs generally. These services are provided by the London Borough of Southwark. He lives in local authority accommodation and receives Disability Living Allowance and Employment Support Allowance. He has a car and is able to drive.
13. The appellant has three brothers and one sister in Nigeria. He does not know much about them; the youngest has finished school and his sister is employed. He visited Nigeria in 2014 and had previously visited that country twice in 2012 for a week at a time; he had visited on three occasions in 2013. He was able to travel to Nigeria unescorted, arranging transport and accommodation at a hotel. He paid his own air fares. He was able to travel by car in Nigeria to see his uncle in another city. This was a two hour car journey. He visited his uncle in hospital and stayed in the hospital. He contributes when he can to hospital costs.
14. The appellant has two children in the UK. One aged 17 (who will be 18 on 31 October 2016; the second daughter is aged 2, she will be 3 on 24 October 2016.
15. The appellant sees his elder daughter regularly and has done so since her birth (when the appellant and the child's mother separated). He gives her money sometimes. The appellant, his elder daughter and her mother meet at restaurants as a family occasionally. The elder child comes to the appellant's home two or three times a week; she sometimes stays overnight. She travels alone for these visits which started in about August 2016, following the appellant's latest hip operation. Prior to that date, the daughter's mother did not let her daughter travel alone to Peckham because she considered the area unsafe. The child is now considered sufficiently mature to travel alone to visit her father in Peckham. The appellant provides his elder daughter with emotional support, particularly when she has a row with her mother, with whom she lives. He also encourages her in her studies although he does not provide direct guidance with regard to the content of her studies. The appellant's elder daughter has not been to Nigeria. She intends to study criminology at university once she has finished her BTech in Business and Criminology at College. The appellant is unable to visit his elder daughter at her home because the building is not suitable for a wheelchair.
16. The appellant's younger daughter lives with her maternal aunt. The appellant has not seen her since January 2016. He is in the process of undergoing mediation with the child's mother in order to gain access to the child; if that is not successful he will pursue the matter through the court.
Submissions
17. Mr Avery, for the respondent, relied on the reasons for refusal letter. The appellant did not meet the requirements of the Immigration Rules, Appendix FM because he did not fulfil the suitability requirements. Nor, for that reason, could EX.1 apply. The appellant had various convictions as set out in the Police National Computer record in the appellant's bundle. He was a persistent offender. Compelling reasons were required for consideration outside the Immigration Rules. There were none in this case. Were the appeal to be considered outside the Rules, s117A-D considerations should be taken into account, including the appellant's background, in the reasonableness test as regards his relationship with the elder daughter. Prior to August 2016, contact had been limited.
18. For the appellant, Ms Braganza relied on the skeleton argument which was before the First-tier Tribunal. She supplemented that argument with oral submissions to the effect that, whilst it was accepted the appellant had a series of criminal conviction, these were no longer relevant to an assessment under the suitability requirements in Appendix FM (1.5 and 1.6) because of the passage of time since the last conviction in 2009 (driving while disqualified and a vehicle without insurance). Seven years had passed since those offences. Whilst there was no case law to support this proposition, this was an issue of fact. This was the only issue of concern for the respondent therefore, by implication, the appellant met the Rules.
19. Ms Braganza submitted that, if the appellant were unable to meet the criteria in the Rules, there were compelling circumstances warranting consideration of the appeal outside the Rules. She referred to the nature of the appellant's relationship with his elder daughter, her vulnerability in terms of her age, she was a teenager who had lost a step-father; the appellant had a direct and positive impact on her studies and education; he had a calming influence on her and her mother. The appellant and his elder daughter's mother were bringing her up together. The appellant's daughter leaned on her father more than her mother as her mother was working unusual hours. The mother's assessment of her daughter's vulnerability was relevant, given her particular experience and expertise working with disadvantaged children. The elder daughter's voice deserved to be heard. These factors were compelling in combination. There was clear interference with the Article 8 rights of the appellant, his former partner and his elder daughter. Removal was not required where there was a genuine and subsisting relationship with a child [sic]. It was accepted that, in the case of the appellant's youngest child, whilst the appellant was taking all the steps he could, there was no genuine and subsisting relationship between them.
The Law
20. Paragraph 322 of the Immigration Rules sets out the grounds on which leave to remain and variation of leave to remain in the United Kingdom are to be refused. The grounds in sub-paragraph (1) are "the fact that variation of leave to enter or remain is being sought for a purpose not covered by these Rules".
21. The requirements of Appendix FM, R-LTRPT.1.1(c) for limited leave to remain as a parent are that inter alia the applicant must not fall for refusal under S-LTR: Suitability leave to remain.
22. Section R-LTRPT (requirements for limited leave to remain as a parent) require that the applicant must not fall Section S-LTR: Suitability - leave to remain provides as follows:
"S-LTR.1.1. The applicant will be refused limited leave to remain on grounds of suitability in any of the paragraphs S-LTR.1.2 to 1.7 apply.
S-LTR.1.2 ?.
S-LTR.1.5. The presence of the applicant in the UK is not conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.
S-LTR.1.6. The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR.1.3 to 1.5.), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.
S-LTR.1.7. The applicant has failed without reasonable excuse to comply with a requirement to -
?
(b) provide information;
?
(d) undergo a medical examination or provide a medical report.
S-LTR.2.1 The applicant will normally be refused on grounds of suitability if any of paragraphs S-LTR.2.2 to 2.4 apply.
S-LTR.2.2. Whether or not to the applicant's knowledge -
(a) ?
(b) there has been a failure to disclose material facts in relation to the application."
23. Paragraph 276ADE(1)(vi) of the Immigration Rules sets out one the requirements for leave to remain in the UK on the basis of the applicant's private life in the UK:
"(vi) subject to sub-paragraph (2), is aged 18 or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK."
Discussion
24. These findings are limited to the appellant's Article 8 claim pursuant to my earlier error of law decision.
25. I bear in mind the age of the appellant's elder daughter and in considering her evidence and circumstances take account of the Joint Presidential Guidance Note No 2 of 2010: Child, Vulnerable Adult and Sensitive Appellant Guidance.
26. The respondent refused the application on various suitability grounds. The principal issue is that the appellant was the subject of a deportation order signed on 30 July 2008. He appealed unsuccessfully against the decision to deport him. The deportation order was revoked in 2010 on discretionary grounds due to his health: the appellant was due to undergo imminent essential surgery. By letter from the respondent to the appellant dated 31 August 2010, the appellant was warned that if he committed further offences, consideration would be given to deporting him, including automatic deportation under the UK Borders Act 2007. The appellant nonetheless committed further offences in 2013 and 2014: he was convicted of using a mobile phone while driving and failing to stop, respectively. The appellant failed to declare all his criminal convictions in his application form, referring only to the two traffic offences in 2013 and 2014. I cannot accept the submission of his counsel that the passage of time, his health issues and the lesser nature of the offences in 2013 and 2014 do not warrant the application of S-LTR.1.6. I am satisfied that the appellant's presence in the UK is not conducive to the public good because his conduct, namely the convictions which were sufficient to warrant a deportation order in 2008, together with his further convictions in 2013 and 2014 and his failure to declare all his convictions in his application form, make it undesirable to allow him to remain in the UK: his conduct, spanning as it does several years up to and including the date of application, demonstrates a blatant disregard for the laws of this country and the immigration rules.
27. The failure by the appellant to disclose all his criminal convictions in the UK when applying for further leave to remain is, in any event, a discrete ground for refusal under S-LTR.2.2.(b). The appellant's application form refers only to the two traffic convictions in 2013 and 2014; he makes no reference to any of those convictions which led to the respondent's earlier decision to deport him. Nor is there any reference to the earlier convictions in the covering letter of those representing him at the time he made his application for further leave to remain. Thus I am satisfied that the appellant failed to refer to material facts in his application form (S-LTR.2.2(b)).
28. The respondent refused the application on the ground that the appellant did not provide a medical report, as requested by the respondent (S-LTR.1.7.(d)). Whilst this was not specifically addressed in evidence or submissions by either party before me, I note there is a letter from the appellant's representatives to the respondent dated 4 December 2014 enclosing a GP's letter concerning the appellant's anticipated surgery on his hip. This suggests that the appellant did provide some medical evidence, as requested.
29. Unlike paragraph S-LTR.2.1 which applies to S-LTR.2.2(b), S-LTR.1.1., insofar as it relates to S-LTR.1.6, is a mandatory provision to the effect that "the applicant will be refused limited leave to remain on grounds of suitability in any of the paragraphs S-LTR.1.2 to 1.7 apply" (my emphasis). In the circumstances, I am satisfied the respondent's decision to refuse the appellant leave to remain under this provision was not in breach of the Rules. It follows that the appellant cannot benefit from EX.1 which is not free-standing.
30. Taking into account the periods of the appellant's imprisonment, he had lived in the UK for less than twenty years at the date of application. However, he does not fulfil the criteria in paragraph 276ADE(1)(vi) because there are not very significant obstacles to his integration into life in Nigeria: he has lived the majority of his life in Nigeria and is familiar with life in that country. He has visited family in Nigeria several times in recent years. There is no evidence that hospital and other medical treatment, including physiotherapy would not be available to him. He is an educated man: he has a higher qualification in finance which was awarded in Nigeria. He is a wheelchair user but is capable of at least part-time employment, for example in an office environment. He is able to drive. Albeit he is not working in the UK, he has skills and experience which are capable of being utilised and would be valued in Nigeria. He would be able to support himself, although perhaps not to the standard he enjoys in the UK. His earnings would enable him to pay for assistance with personal hygiene and other needs.
31. The appellant has not demonstrated he fulfils the criteria in the Rules insofar as his right to a family and private life in the UK are concerned. I therefore turn to the issue of whether or not this appeal should be considered outside the Rules in accordance with the Article 8 jurisprudence. There is no 'exceptionality test' but there is a requirement to carry out a balancing exercise where an individual cannot meet the requirements of the Immigration Rules. The public interest will generally only be outweighed if an applicant can show that 'compelling circumstances' exist - see paragraphs 40 to 42 of SS (Congo) [2015] EWCA Civ 387.
32. In the case of Sunassee, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2015] EWHC 1604 (Admin), the court held:
"33. The decision of Sales J in Nagre therefore, as explained, received the endorsement of the Court of Appeal and represents the law. It has not been "overruled". It had received an endorsement already in MM (Lebanon). The law is that there is always a second stage, but where all relevant considerations have been weighed under the Rules and there are no compelling circumstances not sufficiently recognised under the Rules it will be enough for the decision maker simply to say that."
33. I bear in mind the oral submissions of Ms Braganza who asserted that the appellant's circumstances and those of his elder daughter were sufficiently compelling to warrant consideration outside the Rules. Those submissions are set out at [19] above. Ms Braganza did not seek to suggest that the appellant's health and/or disability were such as to merit such consideration.
34. I bear in mind the best interests of the two children and make them a primary consideration. However, it is conceded the appellant does not have a genuine and subsisting relationship with his younger daughter. There is no submission that he should be permitted to remain in this country to take part in any family court proceedings or mediation relating to access to that child. The appellant has not seen his youngest daughter since January 2016; she is aged two and is likely to have little memory of her father. The impact on her of his removal would be minimal. Nor is there evidence to suggest that her best interests would be undermined by his removal. Nonetheless it is in her interests to have contact with her father and this would be almost impossible, save for visits by the appellant to the UK to see her, were he to be removed. Thus removal would entail the loss of opportunity to build a relationship of personal contact with the younger daughter.
35. The appellant has had the surgery for which he was granted discretionary leave to remain outside the Rules. There is no evidence to suggest that the appellant would not receive appropriate medical treatment in Nigeria. His uncle, for example, has received hospital treatment there.
36. I turn to the relationship between the appellant and his elder daughter, aged 17. She will be 18 at the end of this month. I accept their relationship is a genuine and subsisting one. Whilst the appellant and his former partner told me the current level of contact between the appellant and his elder daughter had contributed to her recent educational achievements, I am unable to accept that. The evidence is that the appellant was in contact with his daughter when she took earlier examinations, her GCSEs, yet her mother's evidence is that their daughter's GCSE results were a "shock" in that she did not do as well as predicted. Given that contact has been maintained between the appellant and his daughter throughout, I am unable to find that the appellant has been wholly or even partly responsible for his daughter's recent examination successes: the appellant's input is limited to encouragement and emotional support, rather than specific guidance on her studies. Whilst such support is not to be undervalued, it is likely the appellant gave similar support when his daughter was taking her GCSEs.
37. The appellant's former partner described their daughter as "more independent now". This is consistent with her reaching adulthood at the end of this month. She is not financially dependent on the appellant. He gives her presents and occasional financial contributions but that is the extent of his financial commitment to her.
38. The appellant and his elder daughter keep in contact by telephone. I was told that when she had an argument with her mother recently, the mother telephoned the appellant who spoke to her and to their daughter. The appellant and his daughter speak on the telephone "every other evening" when they are not in contact personally.
39. Whilst I make the best interests and welfare of the appellant's elder daughter a primary consideration, I am unable to find that the appellant's circumstances, including his relationship with his elder daughter, are such as to merit consideration outside the Rules. The appellant's elder daughter is an independent young woman living with her mother. She is a well-adjusted teenager with an appropriate degree of independence and maturity for her age; she is on the verge of adulthood. The evidence does not suggest she is any more vulnerable than any other young person of her age. She is in full-time education and has a part-time job. She lives with her very supportive mother who has particular professional experience and skill in dealing with young people with behavioural and social difficulties. I am satisfied that her mother would make every attempt to support her daughter in the event of her father's removal from the UK and would encourage her daughter to maintain contact with her father in Nigeria.
40. The appellant's daughter is not financially dependent on her father and he has had limited involvement with her day-to-day upbringing since she was born, albeit they have remained in contact and that involvement has increased since August this year. This increased contact has resulted largely from the fact the appellant's daughter has become increasingly independent and her mother now has confidence in their daughter travelling alone to see her father in his home. This indicates a measure of confidence in the maturity of the appellant's daughter. A measure of emotional support can continue to be provided by the appellant from Nigeria by telephone and the internet. It is the appellant's former partner, his daughter's mother, who has had greater responsibility for the daughter's immediate upbringing throughout her life, with contact being maintained, intermittently on occasion, with the appellant. That would continue if the appellant were removed. The appellant's elder daughter's studies would not be interrupted if the appellant were not in the UK; she would continue to live with her mother and to attend the same college; she could go to university in the UK, as planned. Whilst she would lose regular personal contact with her father, telephone and internet contact could continue. In addition, the appellant's daughter is now of an age and level of maturity to be able to travel to Nigeria on her own to visit her father. Thus personal contact would be maintained, albeit in a different form and less regularly.
41. The appellant was the subject of a deportation order which was revoked on medical grounds. He has failed to provide details of all his convictions in his application for further leave to remain. He does not fulfil the criteria in the Immigration Rules on suitability grounds. The Rules have been drafted to address the public interest in immigration control, including the factors in s117A-117B of the Nationality, Immigration and Asylum Act 2002. The appellant's own and his children's protected rights under Article 8 are capable of being addressed under the Rules. Their circumstances are not compelling such as to require consideration outside the Rules and in accordance with the Article 8 jurisdiction.
Notice of Decision
42. This appeal is dismissed.

A M Black
Deputy Judge of the Upper Tribunal Date: 21 October 2016

Fee Award
The appeal has been dismissed and there can be no fee award.

A M Black
Deputy Judge of the Upper Tribunal Date: 21 October 2016