Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08312/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th January 2017
On 7th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

mr abidemi tajudeen adegbite
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Harding (Counsel)
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant's appeal against decisions to refuse to vary his leave and to remove him was dismissed by First-tier Tribunal Judge RJNB Morris ("the judge") in a decision promulgated on 8th August 2016. The appellant's case was advanced on the basis of his private and family life ties here. His partner and the children of the family (five in all) have discretionary leave which expires in 2018. One of the children (Bilal) is a British citizen, born here in October 2005.
2. The judge found as a fact that the appellant is a persistent offender, for the purposes of the suitability requirements contained in S-LTR of the Immigration Rules ("the rules") and that his presence in the United Kingdom is not conducive to the public good. Having found that he was unable to meet the requirements of the rules, she went on to consider whether there were compelling circumstances which might require an assessment outside them and proceeded to make such an assessment. She took into account section 117A to D of the 2002 Act, assessed the best interests of the appellant's two minor children, including Bilal, and concluded, overall, that although strong ties to the United Kingdom had been established by the minor children in particular, these were "not such as to render the appellant's removal disproportionate". Putting that conclusion in another way, she found in the final paragraph of the decision that the appellant's removal amounted to a proportionate interference with his private and family life here and that the public interest in the maintenance of immigration control prevailed.
3. In the application for permission to appeal, it was contended that the judge erred in her assessment of the proportionality of family members accompanying the appellant to Nigeria and in her assessment of the impact of separation of the children from their father, should he return to Nigeria alone.
4. Permission to appeal was granted on 2nd December 2016. In a rule 24 response dated 9th December that year, the Secretary of State opposed the appeal. At paragraph 3 of that response, there is the following:
"This is an appeal which turns entirely on s.117B(6). Judge of the First-tier Tribunal Morris found that it would be reasonable for the appellant's children to go to Nigeria with (the appellant)."
Submissions on Error of Law
5. Paragraph 3 of the rule 24 response appeared to me to correctly identify the nub point. At paragraph 35 of the decision, the judge set out paragraph 117B(6) and I invited Mr Melvin to indicate where in the decision might be found the answer to the question whether it would not be reasonable to expect Bilal to leave the United Kingdom. Mr Melvin said that the answer appeared from a reading of the entire decision, rather than any discrete part. The Court of Appeal, in MA (Pakistan) [2016] EWCA Civ 705, had given guidance showing that the relevant assessment had to be in the round. The judge drew together her findings at paragraph 46 of the decision, where she found that removing the appellant was a proportionate response. The question of reasonableness raised in section 117B(6) formed part of her proportionality assessment.
6. The judge assessed the best interests of the minor children and considered relevant medical issues at paragraph 45 and her reasoning culminated in the conclusion reached in the following paragraph. The Secretary of State's case was that the judge had looked at all relevant matters and reached conclusions open to her. In essence, the family members faced a choice as to whether they accompanied the appellant to Nigeria or remained here. There was no question of forcing the children to leave. Moreover, at paragraph 43 of the decision, the judge did appear to find that it would be reasonable to expect the minor children, including Bilal, to travel to Nigeria with the appellant and his partner and adult children.
7. Mr Harding agreed that section 117B(6) was critical. However, the decision contained no clear answer to the relevant question. The judgment in MA (Pakistan) made plain that "reasonableness", for the purposes of section 117B(6), is not the same as "proportionality". At the heart of the judgment at paragraph 46, the relevant starting point was identified as a need to show strong reasons justifying the removal of a qualifying child.
8. The judgment in MA (Pakistan) appeared to have entered the public domain by the date of the hearing but no mention was made of it was made in the decision, or of the guidance contained in it. As the relevant question concerned the reasonableness of expecting the minor children to leave the United Kingdom, rather than the proportionality of the decision to remove the appellant, the judge materially erred in law. The wrong test was applied at paragraphs 44 and earlier at paragraph 39 of the decision.
9. In a brief response, Mr Melvin said that the judge's findings regarding the appellant's offending behaviour formed part of both the proportionality assessment and the judge's consideration of the reasonableness of expecting the children to leave. MA (Pakistan) made it clear that this aspect of the public interest was relevant and the appellant's offending behaviour weighed against him.
Conclusion on Error of Law
10. The decision is thorough and the judge has carefully considered the rules and the threshold question identified in SS (Congo), Agyarko and other cases. She has assessed the best interests of the minor children and taken into account the public interest considerations set out in section 117B(6) of the 2002 Act. What is missing, however, is an answer to the question posed by section 117B(6)(b). In other words, the decision does not contain a clear answer to the question whether it would not be reasonable to expect the minor children to leave the United Kingdom. One of the two, Bilal, is a British citizen and so it is perhaps the case, in the light of Zambrano and CS that his position is different from that of his sibling. The judgment of the Court of Appeal in MA (Pakistan) was given on 7th July 2016, shortly before the date of the hearing in the present appeal, and gave important guidance. In answering the question, the public interest considerations that may emerge from a claimant's poor immigration history, for example, are relevant and must be taken into account. The Court of Appeal preferred this analysis to the rival theory that the question is entirely child-focused (as the Upper Tribunal found in MAB). What is also clear is that once the public interest has been taken into account, the question resolves into the express terms of the sub-section, rather than engaging any broader question of proportionality not directly concerned with whether it is not reasonable to expect the child to leave.
11. It is here that the error in the decision appears. The conclusions reached at paragraphs 44 and 46 concern the proportionality of the appellant's removal to Nigeria. Section 117B(6) is identified at paragraph 35 of the decision, as noted earlier, but there is, with respect, no answer to the relevant question concerning the reasonableness of expecting the minor children to leave the United Kingdom. At paragraph 43, there is at first sight a finding on precisely this point but on careful scrutiny, that paragraph cannot sustain the decision. The judge there considers what would happen "if" the appellant's partner were to return to Nigeria with him by choice or "if" the family's discretionary leave were not renewed on expiry in 2018. On either basis, the judge would then find that it would be reasonable to expect the minor children "to travel to Nigeria". Not only is that finding based on events yet to occur or family choices yet to be made, it does not answer the relevant question. The reasonableness of travel to Nigeria is different from the reasonableness of expecting a child to leave the United Kingdom. And, of course, section 117B(6) requires the question to be answered as at the date of assessment (the hearing) and not on a contingent basis if close family members were to choose a certain course of action or if leave is not renewed in a year or two's time.
12. I conclude that the decision of the First-tier Tribunal must be set aside and remade.
13. In a discussion about the appropriate venue, the representatives saw some benefit in the appeal being retained by the Upper Tribunal, rather than remitted to the First-tier Tribunal. After careful thought, taking into account both the passage of time since the decision was made (which might bring with it the need for updating evidence) and the fact that answering the section 117B(6) question ought as a matter of general principle to be decided in the First-tier, and noting that helpful guidance may soon emerge from the Upper Tribunal in CS, I have decided that the decision should be remade in the First-tier Tribunal. The judge's findings regarding the appellant's offending behaviour are not simply findings of fact; they include an evaluative assessment in the light of the requirements of the rules and so they ought not to be preserved. It will be for the next judge to make his or her own assessment.

Notice of Decision
The decision of the First-tier Tribunal is set aside and shall be remade in the First-tier Tribunal, at Hatton Cross, before a judge other than First-tier Tribunal Judge RJNB Morris.
No anonymity direction is made.

R C Campbell,
Deputy Judge of the Upper Tribunal (IAC) 6 February 2017