Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/08735/2015
IA/08959/2015
IA/08985/2015
IA/08993/2015
and IA/09002/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 16 March 2017
On 27 March 2017

Before

Deputy Upper Tribunal Judge MANUELL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr OLABODE MUDASHIRU AILARA and OTHERS
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:
For the Appellant: Mr P Armstrong, Home Office Presenting Officer
For the Respondents: Miss S Akinbolu, Counsel
(instructed by M & K Solicitors)

DETERMINATION AND REASONS
Introduction
1. The Appellant (The Secretary of State) appealed with permission granted by First-tier Tribunal Judge A K Simpson on 9 December 2016 against the determination of First-tier Tribunal Judge R A Cox who had allowed the linked appeals of the Appellants (a Nigerian family) seeking settlement outside the Immigration Rules on Article 8 ECHR grounds. The decision and reasons was promulgated on 17 December 2015. It is unclear why there was such a long delay between promulgation of the original decision and the consideration of the permission to appeal application.
2. After noting what he described as the parents’ “quite appalling immigration history” and their “cynical disregard of our system of immigration control”, Judge Cox further noted that it was “axiomatic that the children are not to be held responsible for their parents’ actions”. He found himself driven with some reluctance to find that the older children in particular were at a critical stage of life and it would be contrary to their best interests and unreasonable to disrupt and uproot them. The judge referred to Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT00197 (IAC). The children’s appeals were allowed with reference to paragraph 276ADE of the Immigration Rules under Article 8 ECHR. Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 was applied and the parents’ appeals were also allowed under Article 8 ECHR.
3. Permission to appeal was granted because it was considered that the judge had failed to consider EV (Philippines) [2014] EWCA Civ 874 and whether the children could be described as established with the United Kingdom’s educational system. The oldest child had not yet commenced studying for public examinations.
4. Standard directions were made by the tribunal.

Submissions
5. Mr Armstrong for the Appellant relied on the grounds of onwards appeal and grant. In summary he sought to argue that the judge omitted to consider and apply relevant authority, in particular EV (Philippines) [2014] EWCA Civ 874 and MA (Pakistan) [2016] EWCA Civ 705. These were important decisions which the judge had failed to address. The public interest had not been properly considered. There had been background information about Nigeria which the judge had not mentioned or considered. The decision and reasons should be set aside and the appeals reheard by another tribunal.
6. Miss Akinbolu for the Respondents submitted that there was no material error of law. Permission to appeal should not have been granted: it was the situation described in MR (permission to appeal: Tribunal’s approach) Brazil [2015] UKUT 00029 (IAC), a simple quarrel with the judge’s view of the evidence. The recent case of Kaur (children’s best interests/public interest interface) [2017] UKUT 00014 (IAC) supported the judge’s approach.

No material error of law finding
7. In the tribunal’s view the grant of permission to appeal was too generous, and was not based on a fair reading of a succinct decision. Article 8 ECHR appeals are an area where a range of reasonable opinions can be held on the same set of facts, and the judge indicated in frank terms that it was not an easy case to decide. His ultimate conclusions were reached on his unchallenged findings of fact. Mere disagreement with the judge’s decision and reasons is not a proper basis for a grant of permission to appeal, as Miss Akinbolu pointed out.
8. The Nigerian country background was not in dispute before the judge and therefore no discussion was required. It was obvious that the children would have access to education and healthcare of an adequate standard. There was no issue of parental competence. Nor was it necessary for the experienced judge to have cited any of the standard authorities, such as EV (Philippines) [2014] EWCA Civ 874, as he had accurately stated and applied the substance of the relevant law. It is abundantly clear from the judge’s observations that he had taken into account the public interest to the fullest extent. The problem which the judge had to resolve or reconcile was to balance the competing interests of the innocent children, separately protected by law such as section 55 of the Borders, Citizenship and Immigration Act 2009, with their blameworthy parents.
9. It might be thought, indeed, that Judge Cox had anticipated the guidance provided by the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705. By [46] of that decision, the judge had been obliged to give “significant weight” to the fact that the two elder children were accepted to have been 7 years old at the date of the application (in terms of the Immigration Rules) and also in relation to section 117B. The judge set out “powerful reasons” why the elder children in particular should not have to go to Nigeria: see [14] onwards of his decision: see [49] of MA (above). The judge applied paragraph 276ADE(1)(iv) of the Immigration Rules and found that it was unreasonable for the three children to have to leave the United Kingdom. Having found that the Immigration Rules were met, the judge had to allow the children’s appeals under Article 8 ECHR.
10. As to the culpable parents, the reasonableness of return of their children arises again under section 117B(6), the Nationality, Immigration and Asylum Act 2002, as part of the statutory public interest consideration applicable to the tribunal’s consideration of Article 8 ECHR. The subsection is in the following terms:
“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 relationship with a qualifying child (defined in section 117D as a person under the age of 18 and who is (a) a British Citizen or (b) has lived in the United Kingdom for a continuous period of seven years or more), and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
11. The judge examined reasonableness as required by section 117B in the context of the children’s best interests, including their current and future education and the need to keep the family unit intact. That examination reflected and applied relevant authority such as Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 00197 (IAC). It is irrelevant that another tribunal might have reached a different conclusion in a finely balanced set of appeals.
12. The tribunal finds that the Secretary of State’s onwards appeal has no substance and that there was no material error of law in the decision.

DECISION
The appeal is dismissed.
The making of the previous decision did not involve the making of a material error on a point of law. The decision stands unchanged.

Signed Dated 27 March 2017

Deputy Upper Tribunal Judge Manuell