Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
IA/05048/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision Promulgated
On: 21st November 2016
On: 5th December 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

TK
(anonymity direction made)

Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Mr Waithe, Counsel instructed by Rashid & Rashid
Solicitors
For the Respondent: Mr Duffy, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellant is a national of Nigeria born in 1977. She appeals with permission1 the decision of the First-tier Tribunal (Judge Maxwell) to dismiss her appeal, on human rights grounds, against a decision to remove her from the United Kingdom pursuant to s10 of the Immigration and Asylum Act 1999.

Anonymity Order

2. There is no reason why the Appellant's identity should be protected. Her case does however turn on the presence in the United Kingdom of her three young children. I have had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders. I am concerned that identification of the Appellant could lead to identification of her minor children and I therefore consider it appropriate to make an order in the following terms:

"Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

Background and Matters in Issue

3. The Appellant claims to have last arrived in the United Kingdom in 2007 with leave to enter as a visitor. That leave expired and she became an overstayer. She and her partner TA were living together in London when they had their first child (C1), who was born on the 21st February 2008. Their second son (C2) was born on the 13th May 2012, and their third (C3) on the 6th November 2015. Both adults were overstayers and none of the children have ever had any valid leave.

4. The family have made various unsuccessful attempts to regularise their status, having made human-rights based submissions to the Respondent on several occasions, for instance in February 2012, January, August, September and December 2014. The chronology is not entirely clear but it would appear that it was in response to that latter set of representations that the Respondent served upon the Appellant, on the 20th January 2015, a 'section 10 notice' advising her of a decision to remove her to Nigeria. That was a decision which attracted an in-country right of appeal, and the Appellant took advantage of that, duly lodging her appeal before the First-tier Tribunal.

5. TA, C1 and C2 were all, by contrast, all served with an 'IS.151B'. That is an 'immigration decision' advising the recipient that he or she is an overstayer, and offering a reminder that a IS.151A had already been served, in October 2013. The notices stated that these were decisions that attracted only an 'out of country' right of appeal. TA, C1 and C2 ignored this and tried to lodge their appeals from within the United Kingdom. In a decision dated 15th April 2015 First-tier Tribunal Judge North held, in the absence of evidence before him that the decisions were made in response to a human rights claim, that there was indeed no in-country right of appeal. There has been to date no challenge to that decision.

6. So it was that when the Appellant's appeal came before Judge Maxwell, she was the only member of the family who had a file in front of him. Judge Maxwell noted the effect of Judge North's decision, and the fact that a third child had now been born. Much of the determination is taken up with recording evidence about the family as a whole, and in particular the health concerns in respect of C1. Judge Maxwell was not however not minded to make a decision about the Article 8 rights of the Appellant's family members. Whilst the Respondent had taken a global view of the position of the family as a whole, Judge Maxwell was concerned that for the Tribunal to do so would have the effect of granting TA and the children an in-country right of appeal where parliament had legislated for no such right exist. He also expressed concern that it would be inappropriate for him to make findings in respect of the children's best interests - and presumably the connected question of whether or not it was 'reasonable' to expect them to leave the United Kingdom - when the Respondent had not yet done so.

7. The determination consequently focussed on the Appellant. She had conceded that she could not meet the requirements of Appendix FM, so the Tribunal proceeded directly to consideration of paragraph 276ADE(1)(vi) of the Rules. The Appellant had submitted that the health concerns of C1 would present her with 'very significant obstacles' upon return to Nigeria. Judge Maxwell did not accept this to be a "proper consideration", since he had to assume that C1 and the rest of the family were already in Nigeria. He found that she and her husband would be able to find work, and in any event would find support from other family members already there. They could receive support from the church just as they have been doing here. She could not demonstrate that she met the requirements of the rule. The determination then embarks, for reasons that are not entirely clear, on a lengthy summary of the jurisprudence relating to foreign criminals and Article 8, before returning to the matter in hand, the Razgar assessment2. The Tribunal found that the Article 8 family life of the Appellant was not engaged, since she would be reunited with her family in Nigeria. Nor did he consider that her private life was materially affected by the decision, since she would be able to make friends and attend church in Nigeria. In case it was wrong about the first two Razgar questions, the Tribunal goes on to address proportionality. Reminding itself that the focus of enquiry was the Appellant alone it declined to make findings about the best interests of the children. When it came to the final consideration in section 117B of the Nationality Immigration and Asylum Act, the Tribunal confined itself to saying the following:

"47. In this instance the qualifying child is himself the subject of removal directions which may only be appealed out of country. As he has no freestanding right to remain in the United Kingdom, it follows that it is reasonable for him to leave if he, and his parents, intend to pursue an appeal against his removal"

8. Having found the Appellant's removal to be proportionate and lawful, the appeal is dismissed.

Submissions Error of Law

9. The Appellant was granted permission to argue that the First-tier Tribunal materially erred in its approach to the other family members. Notwithstanding the decision of Judge North it was apparent from the material before the Tribunal that the position of the children was the central factor in all the representations made to the Respondent since 2012. The focus of those submissions had been that the children had established substantial private lives here, and that C1 had not insignificant health concerns. He had been unwell since birth and has received extensive treatment at St Barts and Great Ormond St Hospital for Children. His conditions are Saethre-Chotzen Syndrome with multisuture synotosis, Opthalmoparesis, Elevated Serum Lactate, Coronal Synotosis and Mil Ataxia. He has been diagnosed with hyperactivity and a history of speech delay, for which he is receiving support. Those matters could not be sensibly divorced from the position of the Appellant, and the attempt to do so ran contrary to the guidance in Beoku-Betts [2008] UKHL 39.

10. The Appellant further submitted that the Tribunal was bound, by the clear terms of two statutes, to properly consider the position of the children: see section 117B(6) of the NIAA 2002 and section 55 of the Borders, Citizenship and Immigration Act 2009.

11. At a hearing on the 12th September 2016 I heard submissions in defence from the Secretary of State, who was that day represented by Mr T. Wilding, Senior Presenting Officer. Mr Wilding agreed that the structure of the determination was not terribly helpful. He submitted however that properly analysed, the determination contained all the constituent parts of a sustainable decision. The Tribunal was correct to have rejected the case under paragraph 276ADE. The finding of Judge North had not been challenged and there was only one appeal before the Tribunal. In those circumstances the Judge could not be criticised for focussing on the Appellant in its assessment of Article 8. Notwithstanding any complaints about the failure to take a Beoku-Betts approach to proportionality, the Tribunal had in any event found that Article 8 was not even engaged. The merits or otherwise of the 117B assessment were not therefore material.

12. In a written decision dated the 18th October 2016 I found, for the reasons that follow, that the First-tier Tribunal had erred in its approach and that the decision must be set aside.

Findings on Error of Law

13. This does not appear to have been an easy case for the First-tier Tribunal to determine. Having reached its preliminary findings on what its remit was, the evidence, and indeed the law, kept dragging the determination back to the children. There is a reason for that. Notwithstanding the fact that they were not parties to this appeal, their position and that of their mother were two sides of the same coin.

14. Section 117B (6) of the NIAA 2002 reads:

(6) In the case of a person who is not liable to deportation, the public
interest does not require the person's removal where-

(a) the person has a genuine and subsisting parental relationship
with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the
United Kingdom.

15. That provision specifically requires the decision maker to consider the position of the children. It is not confined to children who are British, nor to children whose immigration status is settled, nor to children who have a valid right of appeal. If a child has spent a continuous period of seven years in the UK at the date of the appeal, as C1 had, the Tribunal is bound to conduct a comprehensive evaluation of whether it is reasonable for that child to leave the United Kingdom. In this case that evaluation was confined to the observation [at 47] that it must be reasonable for C1 to leave because he has no current leave. That is not a lawful approach. For all the reasons set out in MA (Pakistan) [2016] EWCA Civ 705 and PD and Others (Article 8 - conjoined family claims) [2016] UKUT 108, the evaluation must be a holistic one, taking into account all relevant factors including the fact that the Respondent's own guidance states that "strong reasons" will be required to remove a child who has accrued seven years continuous residence. The fact that the child or his parent has no valid leave to remain under the immigration rules cannot of itself amount to such a 'strong reason'. If applicants under paragraph 276ADE(1)(iv) or paragraph EX.1 of Appendix FM were defeated simply because they had no leave, there would be no point in the provisions' existence. There is a suggestion [at 41] that the Tribunal did not want to delve into the issue where the Respondent had not yet done so herself, thus protecting the position of C1. Whilst that is an understandable sentiment, it is not in accordance with the clear terms of the statute.

16. Mr Wilding's answer to this was to point to paragraphs 34 and 35 of the determination: any error in approach to proportionality was immaterial because the Tribunal did not even find Article 8 to be engaged. This was an attractive point which at first blush assumed the power of a knock-out blow. On reflection I am however persuaded that the fundamental error at the heart of this determination infected the decision overall. The finding on family life at paragraph 34 directly flowed from the Tribunal's refusal to factor in the presence of TA and the children in the UK. The fact that the children did not have a right of appeal before him did not mean that they were not here. The children's best interests still fell to be determined, and the statute still required a 'reasonableness' assessment. In focusing on family life rather than making a global assessment of the Appellant's Article 8 rights as a whole, the Tribunal impermissibly excluded the very matter that s117B(6) required it to examine with care.

17. I directed that the matter be re-made before me.

The Re-Made Decision

The Evidence and Submissions

18. At the resumed hearing I heard brief evidence from the Appellant. She explained that she had first noticed that C1 might have problems when he was a small baby. He frequently had discharge flowing from his eyes and she had taken him to the GP. Investigations had resulted in a referral to a local hospital and eventually to Great Ormond St. She was told that there was a problem with his head in that his skull had fused in the wrong place and at the wrong time. This affected his brain development. He had impaired vision. At present he cannot see at all out of one eye, and the other one is alright. He has speech and development difficulties. He is in mainstream education but has always had special provision. He has a speech therapist who works closely with him and has 'one on one' teaching assistance. His key worker at present is a lady called Mrs Eto. He has been at the same school since he was three (he started in the nursery). He enjoys it there and they have been very supportive. I was provided with a series of letters and reports from the school which confirm this evidence.

19. Mr Waithe asked me to have regard to the medical evidence. It is not disputed by the Respondent that C1 has had specialist intervention since he was 6 months old and that he continues to be seen on a regular basis by clinicians at Great Ormond St and the Royal London Hospital. The Respondent has been provided with numerous letters and reports over the years but the most significant are those dealing with the position of C1 today. I was provided with recent correspondence from various departments in Great Ormond St. A letter dated 30th June 2016 from the Department of Clinical and Academic Opthalmology states that he is currently being treated for Saethre-Chotzen Syndrome with multisuture synostosis and left optic atrophy. Although expressed in medical terminology the letter appears to confirm the Appellant's evidence that her son has vision in his right eye, although not in his left. He has reported pain in his left eye and this is being investigated. The Department of Psychosocial Services confirm that he attends regularly for screening and developmental checks. The Department of Audiovestibular Medicine wrote on the 21st October 2016 to C1's local hospital in Romford concerning ongoing investigations into mild hearing loss and possible Eustachian tube dysfunction. The Speech and Language Therapy Department wrote on the 12th October 2016 to state that C1 continues to receive treatment and assessment for intermittent voice loss and strained voice quality. His mother has reported occasional name-calling and harassment from peers due to his appearance and voice quality. A recent assessment showed him to be a very social little boy whose receptive and expressive language skills were only mildly delayed. There are no concerns with his eating and drinking. Correspondence shows C1 to have three appointments in December 2016: with Paediatric Neurology at the Royal London, and with Opthalmology and the Cranio-facial clinic at Great Ormond St.

20. Mr Duffy confirmed that the facts are not in dispute. It is accepted that all three children were born in the United Kingdom and that C1 has now lived here for 8 years and 9 months. It is accepted that C1 was born with a congenital condition which has affected his brain development, speech eyes and ears as outlined above. It is accepted that the Appellant has no criminal convictions. It is the Appellant's evidence that the family are supported by the Church and friends and Mr Duffy did not seek to challenge that evidence, although he relied on dicta in Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803 to the effect that this does not constitute financial independence for the purpose of s117B(3).

21. Mr Waithe for his part accepts that none of the family have had any leave since the adults' visit visas expired in 2007. The parties agreed that the only appeal before me is that of the Appellant, and that must be determined first with reference to paragraph 276ADE(1)(vi), and then if necessary and appropriate, to Article 8 outside of the rules. If I proceed to consider Article 8 outside of the Rules I must take into account the factors set out at section 117B(1)-(6) of the Nationality, Immigration and Asylum Act 2002 (as amended).

Legal Framework

22. The parties were in agreement that the only possible rule under which the Appellant might succeed herself was 276ADE(1)(vi):
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years 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.
23. In Bossade (s117B A-D - interrelationship with Rules) [2015] UKUT 415 (IAC) the Upper Tribunal considered the test of "very significant obstacles to integration" in the context of the rules relating to deportation. The Tribunal did not elucidate on what factors might establish such obstacles, but found the test to be a "stringent" and demanding standard. This would accord with the established European jurisprudence on 'foreign' private life cases. As the respondent puts it in her guidance:

"A very significant obstacle to integration means something which would prevent or seriously inhibit the applicant from integrating into the country of return. The decision maker is looking for more than obstacles. They are looking to see whether there are "very significant" obstacles, which is a high threshold. Very significant obstacles will exist where the applicant demonstrates that they would be unable to establish a private life in the country of return, or where establishing a private life in the country of return would entail very serious hardship for the applicant3.

24. If the Appellant cannot establish a case under that provision, I must consider whether there are good grounds to look to Article 8 outside of the Rules. If I do so I must have regard to s.19 of the Immigration Act 2014 which inserted a new Part 5A into the Nationality Immigration and Asylum Act 2002. For the purposes of this appeal the key provision in Part 5A is s.117B:

117B Article 8: public interest considerations applicable in all cases

(1) The maintenance of effective immigration controls is in the public interest.

(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-

(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.

(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-

(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.

(4) Little weight should be given to-

(a) a private life, or
(b) a relationship formed with a qualifying partner,

that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.

(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where-

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.

25. It is, for the moment at least, the position that this section is to be interpreted as follows. Decision-makers must have regard to all of the factors listed at (1)-(5) when assessing Article 8 claims, but in cases where the applicant can show both limbs of sub-section (6) to be satisfied, an appeal must succeed on Article 8 grounds: Treebhawon and Ors (section 117B(6)) [2015] UKUT 674 (IAC), MA (Pakistan) [at 14-20]. There being no dispute that the Appellant in this case has a genuine and parental relationship with a qualifying child, the question is whether it would be reasonable to expect that child to leave the United Kingdom.

26. Judge Maxwell considered it reasonable that C1 do so because neither he nor his mother had any leave. That is not sufficient reason. The terms of s117B(6) are mirrored in both paragraph 276ADE(1)(iv) and paragraph EX.1. As I observe above, these are both provisions under the Rules whereby applicants with no status are able to secure some. It would make little sense if a child applicant under paragraph 276ADE(1)(iv) could be refused simply on the ground that he has no leave, or a parent relying on EX.1 could be refused because he was an overstayer. The very point of the rules would be defeated. It follows that a claim resting on s117(B)(6) cannot be rejected purely because the adult in question has no status. What factors then are to be taken into account?

27. The genesis of the 'seven year' provision was the concession known as DP5/96. That policy, and those which followed, created a general, but rebuttable, presumption that enforcement action would "not normally" proceed in cases where a child was born here and had lived continuously to the age of 7 or over, or where, having come to the United Kingdom at an early age, 7 years or more of continuous residence had been accumulated4. Although there have been shifts and amendments to this policy over the years, the government has consistently maintained that a residence of at least 7 years duration is a significant benchmark. As the policy statement5 which accompanied the introduction of paragraph 276ADE (1)(iv) puts it: "a period of 7 continuous years spent in the UK as a child will generally establish a sufficient level of integration for family and private life to exist such that removal would normally not be in the best interests of the child" [my emphasis]. The Hansard record of the debate in the House of Lords on the introduction of section 117B(6) (in the Immigration Act 2014) sets out the government's position on the significance of the seven year mark, as explained by then Home Office Minister Lord Wallace of Tankerness:

"we have acknowledged that if a child has reached the age of seven, he or she will have moved beyond simply having his or her needs met by the parents. The child will be part of the education system and may be developing social networks and connections beyond the parents and home. However, a child who has not spent seven years in the United Kingdom either will be relatively young and able to adapt, or if they are older, will be likely to have spent their earlier years in their country of origin or another country. When considering the best interests of the child, the fact of citizenship is important but so is the fact that the child has spent a large part of his or her childhood in the United Kingdom"6.

28. The current policy statement reaffirms that this is the starting point for consideration of the rule. The Immigration Directorate Instruction 'Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes' ("the IDI") states:
11.2.4. Would it be unreasonable to expect a non-British Citizen child to leave the UK?
The requirement that a non-British Citizen child has lived in the UK for a continuous period of at least the 7 years immediately preceding the date of application, recognises that over time children start to put down roots and integrate into life in the UK, to the extent that being required to leave the UK may be unreasonable. The longer the child has resided in the UK, the more the balance will begin to swing in terms of it being unreasonable to expect the child to leave the UK, and strong reasons will be required in order to refuse a case with continuous UK residence of more than 7 years.
The decision maker must consider whether, in the specific circumstances of the case, it would be reasonable to expect the child to live in another country.
The decision maker must consider the facts relating to each child in the UK in the family individually, and also consider all the facts relating to the family as a whole. The decision maker should also engage with any specific issues explicitly raised by the family, by each child or on behalf of each child.
29. All of this guidance recognises that after a period of seven years' residence a child will have forged strong links with the UK to the extent that he or she will have an established private life outside of the immediate embrace of his parents and siblings. It is that private life which is the starting point of consideration under this Rule. The relationships and understanding of life that a child develops as he grows older are matters which in themselves attract weight. The fact that the child might be able to adapt to life elsewhere is a relevant factor but it cannot be determinative, since exclusive focus on that question would obscure the fact that for such a child, his "private life" in the UK is everything he knows. That is the starting point, and the task of the Tribunal is to then look to other factors to decide whether, on the particular facts of this case, these displace or outweigh the presumption that interference with that private life will normally be contrary to the child's best interests. Those factors are wide-ranging and varied. The IDI gives several examples including, for instance, the child's health, whether his parents have leave, the extent of family connections to the country of proposed return. In MA (Pakistan) Elias LJ (albeit reluctantly) accepted that it must also encompass matter pertaining to the family as a whole, including the factors at s117B(1)-(5) as they relate to the parents. The assessment of what is "reasonable" will call for the Tribunal to weigh all of these matters into the balance and to see whether they constitute "strong reasons" - the language of the current IDI - to proceed with removal notwithstanding the established Article 8 rights of the child in the UK.

My Findings

30. I am not satisfied that the Appellant can demonstrate that she qualifies for leave with reference to paragraph 276ADE(1)(vi) of the Rules. The adults in the family both grew up in Nigeria, speak languages spoken in that country and continue to be familiar with the social and cultural norms. Neither have any health concerns. The Appellant still has a brother and an elderly mother in the country. I am satisfied that one or both of the adults in this family would be able to work should they return there. The Appellant told Judge Maxwell that she was fearful of life in Nigeria because of pollution, terrorism and disease. Those are understandable concerns, but they are not matters that can establish very significant obstacles to her integration. She can alleviate her own concerns by choosing to live somewhere where the risk of all three is reduced. She does not, for instance, have to go and live in Maiduguri. Her real fear is whether she will be able to access the right healthcare for C1. It is evident from the material before me that this little boy has benefitted from highly specialised medical intervention from an early age. What is not evident is the extent to which he continues to need such care - it is not for instance clear whether he would need any operations in the future - nor whether equivalent, or adequate care, would not be available in Nigeria. The burden of proof lies on the Appellant and I assume that if there was a real risk of harm coming to C1 if he travelled to Nigeria, one of the many clinicians involved in his care would have said so. It would of course be preferable if there could be a continuity of care, and it would no doubt be in his best interests to remain at Great Ormond St, but that is not the test to be applied when considering whether there are obstacles to his mother's integration in Nigeria. I find that whilst there will undoubtedly be obstacles and difficulties for the family in relocating, they would not be such to meet the "stringest" test that must be applied in a foreign private life case.

31. I am satisfied that there are good grounds to consider Article 8 outside of the rules, since in this case there are important factors that have not been considered within the ambit of the rule, such as the private lives of the other family members and in particular the qualifying child C1. I am satisfied that Article 8 is engaged. Each member of the family has established a private life in the United Kingdom and collectively they plainly share a family life. I am satisfied that if the family were to be removed together there would be an interference with private life; if the Appellant were to be removed without her husband and children there would be an interference with family life.

32. I find that the Secretary of State has the power in law to make removal decisions in respect of persons who do not have any leave to remain under the Rules and that such decisions are rationally connected with the legitimate Article 8(2) aim of protection of the economy.

33. In considering whether the decision to remove the Appellant is necessary in a democratic society (in pursuit of the aim mentioned above) and proportionate, I must have regard to all relevant factors including the matters listed at s117B(1)-(6) NIAA 2002 rehearsed above. I begin with sub-section (6), following the suggested structure in MA (Pakistan).

34. It is not in dispute that the Appellant is the mother to a little boy who was born in the United Kingdom and has now lived here continuously for approaching 9 years. Like other 8 year olds that that child attends school, has developed interests, made friends and has established good relationships with his teachers. He has, to use the language of the IDI, "put down roots". This little boy has an additional element to his private life that other children might not have: due to his special needs he has also developed therapeutic relationships with his personal keyworkers and the clinicians who have cared for him since he was born. Having regard to the various policies and ministerial statements set out above, I consider that this is a private life that attracts substantial weight. Whereas an adult could reasonably be expected to replicate that private life in Nigeria, different considerations arise in the case of a child, particularly one who has known no other life, and particularly one who has special educational needs such as this one. I find that it would be contrary to C1's best interests to interfere with the private life that he has developed in this country.

35. Against those matters I must weigh the countervailing factors identified by Mr Duffy. I do so with reference to ss 117B (1)-(5) of the 2002 Act. I find that the maintenance of effective immigration controls is in the public interest. None of the family presently have leave. The adults have deliberately overstayed and have missed a number of opportunities to make a voluntary departure from the UK. This is a matter that must weigh against the Appellant. As I note above this is a family who have (by necessity) been dependent on charity and goodwill to support themselves. They are not financially independent. Although I do not rule out the possibility that they would be if the adults were able to legally work, this too is a matter that must weigh against the Appellant. I attach little weight to the Appellant's own private life, since it has been established at a time when she has been living in the United Kingdom without any leave. I am satisfied that the Appellant, her husband and the older children speak fluent English, which will mean that they are less likely to become a burden to taxpayers and that they are better able to integrate into society. This is however a neutral factor.

36. I bear in mind that the family have had extensive recourse to NHS treatment for C1. As far as I am aware none of his treatment has been paid for privately. I also bear in mind that the private life that he currently enjoys could, given time, money and (in respect of finding specialist doctors) possibly luck, be replicated in Nigeria. Although his removal would be hugely disruptive and contrary to his best interests it would not involve, in the long term, a nullification or flagrant interference with his Article 8(1) rights.

37. I have weighed all of those matters in the round. Having done so, and having reminded myself of the language used in the Respondent's own guidance, I am not satisfied that it would be 'reasonable' to expect C1 to leave the United Kingdom. Unlike the child in EV (Philippines) [2014] EWCA Civ 874 he is a qualifying child who prima facie has a claim under the Rules. The assessment of 'reasonableness' is not akin to a proportionality balancing exercise where no such claim arises. There must be 'strong reasons' to require him to leave the United Kingdom today. His parents have not complied with immigration control. They are not financially independent. They (and it would seem his doctors) have allowed him to have treatment on the NHS at the expense of the taxpayer. I am not satisfied, having regard to all of the factors and in particular his strong and substantial private life, that these matters amount to 'strong reasons' such that it would be reasonable to disrupt the only life that C1 knows.

38. It follows that the appeal must be allowed.

Decisions

39. The determination of the First-tier Tribunal contains an error of law and it is set aside.

40. I remake the decision in the appeal as follows:

"The appeal is dismissed 'under the rules'.

The appeal is allowed on human rights grounds"

41. There is an order for anonymity.

Upper Tribunal Judge Bruce
5th January 2017