Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/11835/2015
IA/11836/2015, IA/11837/2015
IA/11838/2015, IA/11842/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20th September 2016
On 11th October 2016

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AMINATA [E] (1)
JOHN [E] (2)
[J E] (3)
[A E] (4)
DAVID [E] (5)
(ANONYMITY ORDER NOT MADE)
Respondents

Representation:
For the Appellant: Mr C Avery, Senior Home Office Presenting Officer
For the Respondent: Mr P Richardson of Counsel, instructed by Portway Solicitors

DECISION AND REASONS

Introduction
1. The first claimant is a citizen of Sierra Leone born on 9th January 1975. The second claimant is her husband and a citizen of Nigeria. They married in Gambia in 2003. The other claimants are their children: the third and fifth claimants are citizens of Sierra Leone and the fourth claimant is a citizen of Nigeria. The first and fifth claimants left Sierra Leone in 1999 and went as refugees to Gambia where they lived until they came to the UK. The fifth claimant was born on 1st November 1995, and so is now 20 years old.
2. The first claimant entered the UK on 16th June 2006 as a student. The third claimant was born in the UK on 5th February 2007 (and so now is 9 years and eight months old). The second and fifth claimants entered the UK as dependents of the first claimant on 14th December 2007 and 1st December 2010 respectively. The fourth claimant was born in in the UK on 9th October 2009 (and so now is 7 years old).
3. The claimants have all been continuously lawfully resident in the UK since their entry/ birth in this country with the first claimant being present with leave as a Tier 4 student migrant and then as a Tier 1 post study work migrant and the rest as her dependents. On 23rd January 2015 the claimants applied to remain in the UK on the basis of their family and private lives in the UK.
4. This application was refused on the 10th March 2015. Their appeal against the decision was allowed by First-tier Tribunal Judge Lal in a determination promulgated on the 9th December 2015: the appeals of the third and fifth claimants being allowed under the Immigration Rules and those of the other claimants on human rights grounds outside of those Rules under Article 8 ECHR.
5. Permission to appeal was granted by Judge of the First-tier Tribunal Brunnen on the basis that firstly it was arguable that the First-tier Tribunal judge had erred in law. The matter came before me to determine whether the First-tier Tribunal had erred in law, and I found that it had and set aside the decision in full for the reasons set out in my decision of 21st June 2016 which is appended as Annex A to this decision.
Evidence & Submissions - Remaking
6. The first, second and fifth appellants gave oral evidence to the Tribunal and adopted their statements in the bundles. I do not set out that evidence in full, but in summary it is as follows. That they entered on the dates as set out above, and hold the citizenships as set out above. They have been lawfully present ever since they entered the UK or were born here.
7. The first appellant has only had been absent from the UK for about nine weeks on seven short trips from the UK to Gambia, Nigeria, Sierra Leone and Amsterdam. Her passports were with the respondent so she had remembered her absences but was certain she had done this correctly. She studied in the UK and obtained a bachelor's degree in Business Administration from Heriot-Watt University here. She has passed the life in the UK test. She has never applied late or had an application rejected by the respondent. She has no criminal convictions and has never broken the immigration laws. She is a catering assistant with Guys and St Thomas's hospital. She does not believe it would be right to require her two children who were born in the UK to leave this country and live elsewhere as they have lived in the UK for their entire lives, and never been in any other country except for short holidays. They are well settled in school with nice friends and are not familiar with life or culture in Sierra Leone or Nigeria. The whole family attend St John Divine Church of England services, and the first appellant is a church usher. It would be devastating to have to take them abroad to live given their integration here.
8. The first appellant left her country of nationality, Sierra Leone, in 1999 and lived in Gambia as a refugee until she came to the UK. Whilst in Gambia she met her husband, the second appellant, in 2000 and they were married in 2003. She cannot return to Gambia as she was only present there under UNHCR auspices and is no longer a refugee. The first appellant says that she cannot return to Sierra Leone where she has no relatives (her mother and father have both died; she has one sister in the UK and one in Ghana; she has cousins in the UK and the USA), and where she believes that she would not be able to re-establish herself and her family as she has no relatives or contacts there which are needed to obtain work and accommodation in that society. She visited Sierra Leone when her father died in 2011. She says that she tried to investigate the possibilities of re-establishing the family in Sierra Leone when she returned for a one week visit in 2013, but that she found it would not be possible.
9. The second appellant gave evidence that he had only been out of the country on two short trips of about two weeks to Nigeria alone, and two short trips to Holland with his family. He has never travelled to Sierra Leone. His wife had been twice, the first time because her father died and the second, he thought, for a memorial for her father, but he had stayed in the UK and looked after the children. He had met his wife in Gambia because he had left Nigeria as he had nothing to keep him there as his parents were both dead and he had no siblings or other family. He had been buying and selling cars in Gambia. He no longer had a residence permit however as this expired when he left in 2007 and would not be able to return to live in Gambia now.
10. The second appellant works for Guys and St Thomas's as a HPV technician, and has spent a lot of time helping bring up the children particularly when his wife was studying in the UK. He notes that the children do a lot of extra-curricular activities such as drama, choir and extra lessons and are very well integrated socially in the UK. He did not believe it would be right to take the children to Nigeria or Sierra Leone, countries he and the first appellant no longer felt they knew as a result of their period of absence, and where the third and fourth appellants had never lived.
11. The fifth appellant gave evidence that he is 20 years old and lived in Sierra Leone only until he was three years old, when he moved with his mother to Gambia due to the civil war. His natural father was murdered by rebels in the civil war in Sierra Leone in 1999. He has never been back to Sierra Leone since he left. He stayed in Gambia under the auspices of UNHCR, and then with friends of his mother (after she left) until December 2010 when he travelled to the UK to join the family here. He completed his secondary education in the UK and started a degree in mechanical and manufacturing engineering at Derby University in September 2015, which he will finish in June 2018. The first and second appellants pay for his fees, accommodation and maintenance costs. He lives at home during the holidays and college halls of residence in the term time. He has close relationships with his siblings. He has all of his friends in the UK. He intends to return to live at home whilst seeking work with a company such as Rolls Royce when he finishes his degree. He would be devastated if he were forced to leave the UK and his life and family here. He thought his maternal grandmother was still alive in Sierra Leone, but thought she was ill in 2013 when his mother had last visited the country. He knows no family or any one in Sierra Leone, and has had no contact with his grandmother on the telephone.
12. In the refusal letter the Secretary of State submits that the claimants are not entitled to succeed in this appeal. She submits that the third claimant cannot show that it would not be reasonable for him to live in Sierra Leone, Nigeria or Gambia; and that the other adult claimants (the first, second and fifth claimant) have not demonstrated on the balance of probabilities that they would face very significant obstacles to their integration if required to leave the UK. There is no evidence of an inability to integrate in these countries, and language would not be a barrier. As such none of the appellant can succeed under paragraph 276ADE of the Immigration Rules.
13. When considering the appeal outside of the Immigration Rules there is no evidence that the best interests of the two minor claimants (three and four) would not be served by their living with their parents in either Sierra Leone, Nigeria or Gambia. All of these countries have functioning education systems. There is no reason why the first and second claimants would not be able to obtain employment, using their UK qualifications and work experience, on return and no evidence that the safety and welfare of the children would be prejudiced by such a return to one of these countries. There is no evidence they could not live together as a family in these countries. It was accepted that the fifth claimant continued to have family life with the other family members. There could be no expectation the family would be allowed to remain in the UK as the claimants were admitted to the UK on a route which did not lead to settlement. It was therefore proportionate to require all the appellants including the minor ones to leave the UK.
14. Mr Avery submitted that he accepted that the first claimant could meet the requirements of the Immigration Rules at paragraph 276B bar the issue of whether she had unacceptable periods of absence under paragraph 276(i)(a). On this issue we just had the oral evidence of the first claimant which was not acceptable. However he accepted that the first claimant's two passports were with the Secretary of State, and it was agreed that he would obtain these and make representations to me by email by Friday 7th October 2016 if the Secretary of State contended that there were excessive periods of absence. If this was the case he would also send the email to the appellant's solicitors along with complete copies of the passports and they would have until 14th October 2016 to make further written representations on this issue. I received an email from Mr Avery dated 7th October 2016 in which he stated that he could find no absences documented in the first claimant's passports which meant that she failed under paragraph 276B of the Immigration Rules due to time spent outside of the UK.
15. Mr Avery submitted that the evidence of the claimants differed with respect to whether the first claimant had relatives in Sierra Leone. The evidence of the fifth claimant was that he thought he had a maternal grandmother in that country. The evidence of the first claimant about her trip in 2013 had been very vague and unconvincing and she had been trying to hide the fact she had visited her mother in Sierra Leone on that occasion. There was no reason why there would be very significant obstacles for the claimants to relocate to Sierra Leone or Nigeria, although he accepted it might be complicated for them to go to Gambia given the history of residence by virtue of protection by UNHCR in that country. No legal reasons or substantial other reasons had been given why this family could not relocate to either of these countries. The best interests of the children were simply to be with their parents in their country of nationality, and this was the case even if the first claimant was entitled to ILR in the UK.
16. Mr Richardson submitted that it was possible that the evidence of the claimants was consistent on the issue as to whether the first claimant's mother was still alive, and thus whether they had a relative in Sierra Leone. It was possible that she had died but the fifth claimant had not been told of this as he had no connection with her.
17. Mr Richardson submitted that the oral evidence of the first claimant together with the life in the UK test and degree certificate should suffice to find that all elements of paragraph 276B of the Immigration Rules were met by the first claimant, but he agreed to Mr Avery being able to make the checks as he proposed and the timetable set out above.
18. He submitted that it was appropriate to look at the third claimant next. He submitted that this claimant was entitled to succeed under paragraph 276ADE (1)(iv) of the Immigration Rules as he had been in the UK for seven years at the time of application and it was not reasonable to expect him to leave the UK. The reason for this was that it was in his best interest to preserve the status quo and for him to continue to live and study in the country where he had been born and lived for the past nine and a half years and not to be relocated to a "strange" African country. It was all the more reasonable given that his parents had not broken any Immigration Rules at any point or done anything else unlawful, and in the context of his mother being entitled to indefinite leave to remain, see R (on the application of) MA Pakistan & Ors v Upper Tribunal (Immigration and Asylum Chamber) SSHD [2016] EWCA Civ 705, particularly at paragraph 46 to 49. Mr Richardson concluded that in this case there were no powerful reasons why leave should not be granted.
19. Mr Richardson then submitted that it was appropriate to consider the position of the fourth claimant. She could not succeed under the Immigration Rules as she had not been in the UK for seven years at the time of application. He submitted that it was appropriate to consider whether it was proportionate to remove her in accordance with Article 8 ECHR principles outside of the Immigration Rules as her best interests were a compelling matter not otherwise considered under the Rules. He submitted that it could not be proportionate to remove the fourth claimant if it were not proportionate to remove her brother and particularly in the context of her mother having an entitlement to indefinite leave to remain, and her having resided in the UK for six years and eleven months and having lived her whole life in this country and her best interests being to continue and live and study in this country.
20. Mr Richardson then turned to the second claimant whom he argued was entitled to remain when his position was considered outside of the Immigration Rules because of his relationship as a father sharing parental responsibilities for the third and fourth claimants. In these circumstances it was not proportionate to remove him in accordance with s.117B (6) of the Nationality, Immigration and Asylum Act 2002 and the decision of the Upper Tribunal in Treebhawon and others (s.117B(6)) [2015] UKUT 674 as it was not disputed that the second claimant had a subsisting and substantial parental relationship with this children the third and fourth claimants and it was not reasonable to expect these children to leave for the reasons set out above. As such the public interest did not require the second claimant's removal.
21. Mr Richardson then submitted that the fifth claimant could arguably show he was entitled to remain under paragraph 276ADE (1)(vi) of the Immigration Rules as he could show very significant obstacles to his integration in Sierra Leone given his teenage life had been in this country and would be forced to give up his university education midway through and return to a country he had not lived in since he was three years old. However even if this was not accepted he was entitled to succeed outside of the Immigration Rules as his family life relationship with his parents and siblings (which is accepted by the respondent and should not be seen as having been diminished by his starting university - see AP (India) v SSHD [2015] EWCA Civ 89 paragraphs 45 and 51 obiter comments about students at university remaining part of their original family) was a compelling matter which must be considered outside of the Immigration Rules. Given the rest of the family were entitled to remain in the UK it would be a disproportionate breach of Article 8 ECHR to require the fifth claimant to leave. Weight can properly be given to this family life relationship as it was built whilst this claimant was precariously but not unlawfully present in the UK, and thus s.117B(4) and (5) of the 2002 Act do not prescribe that little weight can be given to the relationship.
Conclusions - Remaking
22. I find that the adult claimants who gave evidence are for the most part credible witnesses. In general they answered questions put to them directly; were consist with their written statements and each other and the other documentation provided to the Tribunal. In the light of the oral evidence of the fifth claimant I do not believe however that the first claimant's mother has died, and find that the first and second claimants did not give full honest testimony about this on-going tie with the first claimant's country of origin and the reasons for her visit to Sierra Leone in 2013 in an attempt to diminish the ties she has with that country.
23. I must first look at this appeal under any relevant Article 8 ECHR or other Immigration Rules.
24. The first issue to determine is whether the first claimant can meet the Immigration Rules at paragraph 276B. As accepted by Mr Avery on behalf of the respondent I find that the first claimant can clearly meet the requirement that there are no public interest reasons why it would be undesirable why she should not be allowed to remain; that she does not fall to be refused under the general grounds of refusal, that she has demonstrated through her degree certificate and life in the UK certificate that she has sufficient knowledge of the English language and about life in the UK and that she has not overstayed or been in breach of the immigration laws. In light of the email evidence from Mr Avery and the first claimants' oral evidence I also accept that she has continuous lawful residence for a period of ten years given her absences are only for a number of weeks on a few short holidays. I therefore find that the first appellant is entitled to succeed on her appeal on this basis and is entitled to indefinite leave to remain in the UK.
25. The second issue to determine is whether the third claimant can meet the Immigration Rules at paragraph 276ADE (1)(iv). Clearly he had lived in the UK for more than 7 years at the time of application and is under 18 years. The question then arises as to whether it would be reasonable to expect him to leave the UK.
26. The third claimant is clearly a child who has a full social and educational life in the UK, attending St John the Divine Church of England Primary School in year 4, We Care Child Care Ltd (a Bilingual Pre-School) and the Helen O'Grady Drama Academy. His head teacher from St John the Divine has written to say that it would be detrimental to the third claimant if he were removed from the school as they are working on understanding "certain barriers to learning" which the third claimant experiences. It is her view that he needs to remain in his current school environment so that he is able to reach his full potential. She is also of the view that the family are all "well versed in British values". It is also clear from the many letters in support of the claimants that the third claimant lives in an integrated community of relatives and family friends from the church and outside, and that he regards himself as British. The Reverend Canon Mark Williams, vicar at St John the Divine Church of England church in Kennington, expresses the view that it would be unreasonable to uproot the third claimant from his life in the UK given his integration into UK society given what he knows of the family over their four year period of acquaintance. He confirms that the third claimant lives in an extended family of cousins and aunts in this country and that London is his home.
27. I am satisfied that the family have no right to re-establish themselves in Gambia. None of them are Gambian citizens and I accept the evidence of the claimants that they were only permitted residence in that country because of the situation of civil war in Sierra Leone which led to UNCHR protection, and prior to that for the second claimant based on his trading business which no longer exists. However I am satisfied (as no evidence has been put before me to the contrary) that the family could legally relocate to either Nigeria or Sierra Leone. I am satisfied on the balance of probabilities that they would not have significant family assistance in either of these countries, although I find it is likely (particularly on the evidence of the fifth claimant) that the first claimant's elderly unwell mother is still alive in that country. I accept that the third claimant has never been to either country and has no personal links himself, and that the links the first and second claimants have are also now tenuous given their periods of absence and focus on integration in this country. Thus whilst it would be no doubt stressful and somewhat difficult for this family to successfully relocate after their time in the UK I do not find that this would be impossible for them in either country given the knowledge of local and lingua franca languages and customs by the third claimant's parents, and his parents' qualifications, work experience and evident social skills. I accept also that the third claimant would also have access to schooling and basic health care in either country.
28. However when considering whether it would be reasonable to expect the third claimant to leave I am guided by what is said by the Court of Appeal in MA (Pakistan). The Court of Appeal state at paragraph 46 that there is a "very strong expectation" that a child's best interest who has lived in the UK for seven years or more will be to remain in this country with his parents as a family unit due to the roots and developed social, cultural and educational links he will have made with the UK. I find that it is in the best interests of the third claimant to remain here given the evidence I set out above at paragraph 26 in the context of this guidance.
29. The Court of Appeal then state that the conduct and immigration history of the parents and the links to any proposed country of return are also relevant to the issue of the reasonableness of any claimant having to leave the UK: the best interest are not the sole issue, although it is noted that that a seven plus period of residence "establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary". As I have said I do not find the third claimant has any personal links beyond his passport nationality to Sierra Leone, and has none at all with Nigeria. He has not been to either country, and I find he does not live in a Diaspora community of either country in the UK. He has some educational issues which favour continuity of education at his current school in the UK and has lived in this country all of his life, has friends and family here and feels himself to be British. His parents, the first and second claimants, are not overstayers, have never broken immigration laws, indeed I have found his mother to be entitled to indefinite leave to remain under the Immigration Rules, they have no criminal records and there is no other adverse matters raised in relation to either of them. Indeed they are seen by their friends, the claimant's school and their vicar as upstanding contributing members of the community.
30. In consideration of all of the circumstances outlined above I conclude that it is not reasonable to expect the third claimant to leave the UK.
31. The third issue to determine is whether the second and fifth claimants can show that they meet the requirements of paragraph 276ADE (1)(vi) of the Immigration Rules to remain in the UK on the basis of their private lives. They have lived in the UK for 8 years and ten months (second claimant) and 5 years and ten months (fifth claimant). They would have to demonstrate very significant obstacles to integration in Sierra Leone, Nigeria and Gambia. For the reasons set out above at paragraph 27 I am satisfied that there would be very significant obstacles to integration in Gambia for both of these claimants. However given the language skills and qualifications/ work experience of both claimants and their good health I do not find that they can meet the demanding test of showing they would have very significant obstacles to integration with respect to their private lives in Sierra Leone and Nigeria. Although it would be difficult for the second claimant to return to Nigeria after a very long absence without family assistance and re-establish his private life in that country he has shown he has initiative to do so in two other "foreign" countries (Gambia and the UK). The fifth claimant again would no doubt face some difficulty in establishing his private life Sierra Leone, and might have some difficulties completing a degree started in the UK. He would be hampered by his long absence but his evidence is that he has an elderly grandmother there and I find a mother who has cultural understanding to whom he could turn for some initial help and is a healthy and relatively well qualified young man.
32. I find that there are however compelling matters that must be considered outside of the Immigration Rules.
33. Firstly I must look at the position of the fourth claimant who has both family and private life in the UK, having been born in this country and whom at the point of determination of this appeal has lived in the UK for a continuous period of seven years (paragraph 13 of MA (Pakistan) is clear that this is the key date for s.117B of the Nationality, Immigration and Asylum Act 2002). Like her brother, the third claimant, she has been lawfully present in the UK for her entire stay: she has only left this country for very short holidays to the Netherlands; she is in full time schooling and doing well at the St John the Divine Church of England Primary School in year 2, We Care Child Care Ltd (a Bilingual Pre-School) and the Helen O'Grady Drama Academy. Again as with the third claimant, the fourth claimant lives in an integrated community of relatives and family friends from the Church of England church she attends with her family and outside, and regards herself as British. I find if she were removed from the UK this would interfere with her private and family life, but that as she does not qualify under any of the Immigration Rules this would be in accordance with the law.
34. Following the guidance in MA Pakistan given her period of residence I find that her best interests are to remain in the UK with her family because she has put down and developed social, cultural and educational links to the UK which would make it highly disruptive for her to be required to leave given her lack of any relationship to her country of nationality, Nigeria. Again in accordance with MA Pakistan and s117D and s.117B(6) of the Nationality, Immigration and Asylum Act 2002 I find that it would not be reasonable to expect her to leave for very similar reasons to those given for her brother, the third claimant. Her parents conduct gives no powerful reasons to the contrary given they have been law abiding and have contributed positively to the community in the UK and she has no actual links to Nigeria or Nigerian society which would make it reasonable for her to go there. In these circumstances I find that it would not be proportionate for the fourth claimant to be required to leave.
35. The findings in relation to the third and fourth claimants lead to the conclusion that the second claimant is entitled to remain in accordance with s.117B (6) of the Nationality, Immigration and Asylum Act 2002. I find that the second claimant has a genuine and subsisting parental relationship with both of these children, who are both qualifying children under s.117B of the Nationality, Immigration and Asylum Act 2002 having lived continuously in this country for more than seven years. The second claimant clearly is their biological father named on their birth certificates, he lives with them, and is actively involved with their upbringing. For the reasons set out above (which include reference to the second claimant's conduct) it would not be reasonable to expect the children to leave the UK.
36. Lastly I must turn to the situation of the fifth claimant on a consideration outside of the Immigration Rules. I find that there is a compelling matter to consider in this way as it is argued that the fifth claimant, whilst being 20 years old, has a family life relationship with the other claimants who I have found qualify to remain in the UK. It was accepted by the Secretary of State on page 2 of 3 of his refusal letter at page 29 of the bundle that he had such a relationship with his siblings and parents (the other claimants) in March 2015. Mr Avery has suggested that this is no longer be the case as the fifth claimant has started university, and lives in university halls during term time now. However I find that he remains emotionally and financially dependent on the first and second claimants who continue to pay for his education and other expenses. The fifth claimant returns to the family home in university holidays and I find has continuing intense dependent emotional family life relationships with his parents and younger siblings. He intends to return to that home when he finishes his degree and I find that he remains an integral part of this family. Drawing on the comments in AP (India) v SSHD [2015] EWCA Civ 89 at paragraph 45 and 51 I have no hesitation in finding he has family life with the other claimants. Clearly if he were to have to leave the UK this family life would be interfered with as the other claimants will remain in this country, as it is not reasonable to expect them to leave. This interference would however be in accordance with the law as he is not entitled to remain under the Immigration Rules.
37. When considering the proportionality of this interference I am guided by s.117B of the Nationality, Immigration and Asylum Act 2002. The fifth claimant speaks fluent English, is not currently financially independent but has good prospect of being so when he finishes his degree as he is doing a vocationally orientated course in manufacturing engineering and is in no way financially reliant on the British state. I can give little weight to his private life as it has been formed whilst he has been precariously present, but I am not prohibited from giving significant weight to his family life relationships as they were not formed whilst he was unlawfully in the UK. I must give significant weight as a primary consideration to the best interests of his brother and sister, the third and fourth claimants, who have close sibling relationships with him and who would therefore naturally be upset if he were not able to live with them. I also give consideration to the family history of this young man. He lost his natural father in the civil war in Sierra Leone; he then lived with his mother as a refugee in Gambia and with family friends before being able to join the family in the UK. He has not had an easy family life until coming to the UK. Whilst giving weight to the need for effective immigration control and acknowledging the important public interest in that regard I find that it would be disproportionate to remove the fifth claimant.
Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision with no findings of fact preserved.
3. The appeal is remade allowing the appeals of the first and third claimants under the Immigration Rules, and the second, fourth and fifth claimants on human rights grounds.

Signed: Fiona Lindsley Date: 10th October 2016
Upper Tribunal Judge Lindsley
Annex A: Error of Law Decision

DECISION AND REASONS
Introduction
1. The first claimant is a citizen of Sierra Leone born on 9th January 1975. The second claimant is her husband and a citizen of Nigeria. They married in Gambia in 2003. The other claimants are their children: the third and fifth claimants are citizens of Sierra Leone and the fourth claimant is a citizen of Nigeria. The first and fifth claimants left Sierra Leone in 1999 and went as refugees to Gambia. The fifth claimant was born on 1st November 1995, and so is now 20 years old.
2. The first claimant entered the UK on 16th June 2006 as a student. The third claimant was born in the UK on 5th February 2007 (and so now is 9 years old). The second and fifth claimants entered as dependents of the first claimant on 14th December 2007. The fourth claimant was born in in the UK on 9th October 2009 (and so now is 6 years old).
3. The claimants have all been continuously lawfully resident in the UK with the first claimant being present with leave as a Tier 4 student migrant and then as a Tier 1 post study work migrant and the rest as her dependents. On 23rd January 2015 the claimants applied to remain in the UK on the basis of their family and private lives in the UK.
4. This application was refused on the 10th March 2015. Their appeal against the decision was allowed by First-tier Tribunal Judge Lal in a determination promulgated on the 9th December 2015: the appeals of the third and fifth claimants being allowed under the Immigration Rules and those of the other claimants on human rights grounds outside of those Rules under Article 8 ECHR.
5. Permission to appeal was granted by Judge of the First-tier Tribunal Brunnen on the basis that firstly it was arguable that the First-tier Tribunal judge had erred in law in determining the appeals under the Immigration Rules as insufficient reasons were given why the third claimant could not be reasonably expected to leave the UK and why the fifth claimant would face very significant obstacles to integration. Secondly it was said to be arguable that no compelling reasons had been identified for allowing the appeals of the other claimants outside of the Immigration Rules and in finding that the immigration status of the claimants had not been precarious.
6. The matter came before me to determine whether the First-tier Tribunal had erred in law.

Submissions
7. Mr Richardson accepted that the First-tier Tribunal had erred in law in stating that the claimant's immigration status had not been precarious during their stay in the UK, however this was only an error in relation to decisions regarding the adult claimants outside of the Immigration Rules, and, he argued, was ultimately not material as if the decisions made in respect of the child claimants were correct there would be no public interest in removing the parents. He did not therefore concede the First-tier Tribunal had made any material errors of law.
8. Mr Richardson did not accept that the decision in relation to the child claimants was defective. He maintained that it was proper for the First-tier Tribunal to have placed reliance on what was said by the head teacher of St John Divine Primary School in relation to it not being reasonable to expect the third claimant to leave the UK. The decision in relation to the fifth claimant having very significant obstacles to integration was also sufficient argued at paragraph 25 and elsewhere.
9. Mr Richardson also brought to the attention of the Tribunal the fact that the first claimant had now been lawfully present in the UK for more than 10 years. It was clear from the immigration history summary provided by the Secretary of State in her bundle that the first claimant entered the UK with entry clearance as a student on 16th June 2006, and this is reflected on the passport copies at pages B1 and B2 of the Secretary of State's bundle.
10. Mr Richardson and Mr Tarlow were in agreement that it would be appropriate for the case to be adjourned if a material error of law were found for reconsidered by the Secretary of State of the first claimant's case to remain in the UK under paragraph 276B of the Immigration Rules. It was agreed that if the matter were relisted at an available date from September 2016 this would give sufficient opportunity for this to take place.
11. Mr Tarlow relied upon the grounds of appeal. In these it is argued that the third claimant's appeal was allowed on insufficient and subjective evidence provided by the head teacher regarding the impact of the removal on this claimant and giving improper weight to his education in the UK in the light of what was said in EV (Philippines) & Ors v SSHD [2014] EWCA Civ 874.
12. It is also argued that the decision of the First-tier Tribunal errs at paragraph 25 as it asserts that the fifth claimant had no links to Sierra Leone because he had left at 2/3 years old, and ignores the fact that this claimant lived in Gambia between 1999 and 2010, as set out in the refusal letter, and would therefore have links to that country.
13. It is argued that there were no compelling reasons to consider the appeal outside of the Immigration Rules for the other claimants, and in any case the decision is flawed as it treats them as not being precariously resident and their ability to speak English and be financially independent as determinative factors (at paragraph 30 of the decision) contrary to the ratio in AM (S.117B) Malawi [2015] UKUT 0260.
Conclusions
14. I find that the First-tier Tribunal erred materially in law in determining the appeal for the following reasons.
15. Adequate reasons are not given in the decision of the First-tier Tribunal for finding that the third claimant qualified under paragraph 276ADE (1)(iv) of the Immigration Rules on the basis it would not be reasonable for the third claimant to leave the UK, and for the finding that the fifth claimant qualified under the Immigration Rules with reference to paragraph 276ADE (1)(vi) on the basis that there would have very significant obstacles to his integration in the country to which he would be removed.
16. There is no decision as to whether the claimants have any remaining rights to live in Gambia, a country in which the first, second and fifth claimant lived historically for a considerable period of time. It is not clear whether the claimants could all live as a family in Sierra Leone or in Nigeria given three hold citizenship of Sierra Leone and two of Nigeria. There needed to be reasoned findings on these issues, and then for the First-tier Tribunal to consider the circumstances the third and fifth claimants would face in each country to which they would be entitled to go, with reference to which other claimants would be admitted to each country with them.
17. So whilst information about the third claimant's integration in the UK and regarding any need to remain at his current particular school is relevant to whether it would be reasonable to expect him to leave the UK this is only one aspect of the equation. Consideration must also be given to the circumstances he would face in the other countries where he would be entitled to go with his family. Whilst weight can properly be given to the opinion of a primary school head teacher, who will in all probability know a child in his school well, the letter in this particular case also failed to provide a reasoned or detailed explanation as to why continuity of education was so important to the third claimant's social development and his reaching his potential. If there have been problems in this respect then these needed to be set out.
18. The evidence relied upon in relation to the fifth claimant is even more sparse. The test under the Immigration Rules in his case focuses solely on integration abroad. Whilst not having been in Sierra Leone since the age of three years might make such integration difficult without some analysis of the situation with family, friends, work, studies and other factors relating to circumstances in the country of destination a lawful and sufficiently reasoned decision that he met the test under the Rules simply cannot be made. As indicated above the issue of whether this claimant could also be removed to and live in Gambia, and which family members might be permitted to be there with him, is also unanswered. It is also unclear whether it was found that this claimant has an Article 8 ECHR family life relationship with his parents and siblings (as opposed to private life relationships). This in turn might have a bearing on whether he would face such issues with integration aboard and needed to be considered.
19. The decision of the First-tier Tribunal regarding the first, second and fourth claimants was clearly predicated on the success under the Immigration Rules of the third and fifth claimants which I have found to be unlawful by virtue of insufficient reasoning. The decision also erroneously states, as accepted by all parties, that the status of the claimants has not been precarious, when considering the appeals outside of the Immigration Rules at paragraph 28 and 30 of the decision, when clearly their immigration status whilst lawful has been precarious in accordance with the decision in AM (S.117B) Malawi.
20. I accept the parties' proposal that having found material errors of law it is appropriate to adjourn the remaking hearing so the Secretary of State can provide a decision in relation to the first claimant under paragraph 276B of the Immigration Rules given her period of lawful residence in the UK.
21. The claimants should now immediately consider with their solicitors whether there are any additional documents that need to be provided to the Secretary of State for this consideration by reference to these Rules as the application was made 18 months ago and may not provide all of the documents needed for instance in relation to demonstrating knowledge of the English language and life in the UK, and to the other requirements of Appendix FM and Appendix FM-SE (particularly with respect of funds) with respect to the other claimants who may wish to be considered as dependents if the first claimant were granted indefinite leave to remain.

Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision with no findings of fact preserved.
3. The remaking hearing is adjourned.

Directions
1. The Secretary of State is to make a decision as to whether the first claimant qualifies for leave to remain under paragraph 276B of the Immigration Rules, and if so whether the other claimants qualify to remain as her dependents under Appendix FM or other provisions of the Immigration Rules by the 1st September 2016.
2. Seven days prior to the remaking hearing date the claimants are to file on the Tribunal and serve on the Secretary of State a bundle of relevant materials relating to the legal tests that need to be met at the next hearing and to exclude extraneous and duplicate materials from their bundle.
3. The remaking hearing is adjourned to the first available date after 12th September 2016.

Signed: Fiona Lindsley Date: 21st June 2016
Upper Tribunal Judge Lindsley