Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12644/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 November 2016
On 13 December 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

FAJ
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr Whitwell, Senior Home Office Presenting Officer
For the Respondent: Miss Praisoody, instructed by Supreme Solicitors

DECISION AND REASONS
1. I shall refer to the appellant as the respondent and to the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant, FAJ, a female citizen of Nigeria was born in 1983. She is the mother of two children, a boy aged 8 (A) and a girl age 5 (F). Both children were born in the United Kingdom. The appellant entered the United Kingdom in 1996. The Secretary of State acknowledged that A had lived continuously in the United Kingdom for at least seven years but considered that it would be reasonable to expect A to leave the United Kingdom. In her application to the Secretary of State, the appellant had not claimed to have a partner in the United Kingdom and given that paragraph EX1 did not apply the application made by the appellant to remain in the United Kingdom with her children was rejected by a decision dated 7 March 2015. The appellant had appealed to the First-tier Tribunal (Judge K Swinnerton) which, in a decision promulgated on 22 June 2016, allowed the appeal. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. There are two grounds of appeal. First, the judge had failed to acknowledge that a period of seven years calculated from the age of 4 is likely to be of greater significance in a child's life than the first seven years of that child's life (Azimi-Moayed and Others (decisions affecting children; onward appeals) [2013] UKUT 197 (IAC)). Further, the reasons given for finding that it was not reasonable to expect child A to leave the United Kingdom and live in Nigeria were inadequate.
3. The Upper Tribunal should hesitate before interfering with the factual findings of the First-tier Tribunal but I find that this is an instance in which the reasoning of the judge was neither clear nor adequate. As regards A, the judge recorded that he was doing well at school [66]. A does not speak Yoruba. The judge noted that "no evidence was provided that [A] has ever visited Nigeria or has ever visited his grandmother or other family in Nigeria." The judge recorded that the best interests of the children would be to remain with their parents or, in this case, the mother. It was noted also that it "generally in the interests of the children to have stability and continuity in their education and social situation." [71]. The judge recorded [72] that Nigeria has a "functioning education system." However, the problem with the judge's analysis is that at [73] she states that she has "endeavoured to make an overall assessment of the particular circumstances of the children in this case." It is not at all clear what those "particular circumstances" are beyond the fact that the children have not visited Nigeria and are doing well at school. The judge concluded by saying:
In relation to A I find that his removal would involve a significant disruption to his educational development, particularly as he has lived all his life in the UK, does not have any ties with Nigeria and has never visited Nigeria. I do not find that it is reasonable to expect him to live in Nigeria based upon an overall assessment of his wellbeing.
4. That paragraph may have been an adequate summary or conclusion had the preceding analysis identified evidence which might indicate that the disruption to A's educational development would be "significant" or evidence which might indicate that the fact that A does not speak Yoruba (but does speak English, one of the main languages spoken in Nigeria) and has never visited Nigeria hitherto would impact upon his welfare to the extent that it would be unreasonable for him to leave the United Kingdom to live in Nigeria. I do not say that the judge's findings were unavailable to her; however, I do say that the judge has failed to identify evidence which would support her conclusion at [74]. More generally, I find that it should not simply be assumed that it would be unreasonable for a child under 10 years of age to relocate to the country of his or her nationality simply because he or she had never yet visited that country.
5. In the circumstances, I find that the judge's decision should be set aside. None of the findings of fact shall stand. I accept that the lives of the children and the appellant have perhaps moved on since the hearing before the First-tier Tribunal and that it is necessary to have a further fact-finding exercise. That exercise is better conducted by the First-tier Tribunal, to which I return this appeal in order to remake the decision.
Notice of Decision

The decision of the First-tier Tribunal promulgated on 22 June 2016 is set aside. None of the findings of fact shall stand. The appeal is returned to the First-tier Tribunal (not Judge K Swinnerton) for that Tribunal to remake the decision.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 10 December 2016

Upper Tribunal Judge Clive Lane