Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/12850/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23rd November 2016
On 19th December 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Ms M
(aNONYMITY DIRECTION MADE)
Respondent

Representation:

For the Appellant: Mr P Nath, Home Office Presenting Officer
For the Respondent: Mr M Harris, Counsel, instructed by Rashid & Rashid Solicitors (Merton High Street)

DECISION AND REASONS
1. The application for permission to appeal was made by the Secretary of State but nonetheless I shall refer to the parties as they were described before the First-tier Tribunal, that is Ms M as the appellant and the Secretary of State as the respondent.
2. The Secretary of State challenges the decision of First-tier Tribunal Judge Gurung-Thapa made on 13th June 2016 to allow the appellant's appeal, together with her two dependent children born on 6th September 2000 and 28th May 2011 respectively, both under the Immigration Rules and on human rights grounds (Article 8 ECHR) outside the Immigration Rules. The appellant is a citizen of Nigeria born on 27th September 1980 and after a series of failed EEA applications and human rights applications submitted further representations on 11th February 2015 and 16th February 2015 requesting that her case be considered on human rights grounds. That application for leave to remain on human rights grounds was considered by the Secretary of State and refused on 12th March 2015.
3. The Secretary of State founded her challenge in the application for permission to appeal on three grounds, namely:
Ground (i)
At paragraph 30 of the determination the Tribunal found that because the appellant was a single mother of two with no support for basic needs and she would face very serious hardship on return to Nigeria. Whilst it was recognised that the appellant may well face difficulties it was submitted that there was simply no evidence to show that the level of these difficulties would be sufficiently high to meet the threshold of very serious hardship. The appellant is a Nigerian citizen as are her children and she had never had settled status in the UK but continued to live in the UK and make unsuccessful claims. Despite or possibly because of this she had brought one child into the UK and given birth to another in the UK one function of which was to enhance her immigration claims.
Ground (ii)
It was also submitted that the assessment under the Rules required a global view and the Tribunal did not consider what treatment the appellant would receive in Nigeria in comparison with other Nigerian single parents with no support in Nigeria. The appellant produced no evidence to show that there were no employment prospects for the appellant in Nigeria or there was no welfare support structure charitable or otherwise or no means of remittances from the UK. The Tribunal's brief consideration under the Rules was incomplete and unsustainable.
Ground (iii)
The third ground was that the Tribunal had erred in its assessment of Article 8 in setting forward at paragraphs 57 and 58. There was absolutely no regard to Section 117B and it was submitted that if it had that it would have made a very different proportionality assessment. Both children are Nigerian, neither had any legitimate immigration status, neither had any entitlement to be in the UK. Both of them are accessing different parts of the welfare state and it may be in their best interests to remain in the UK but this assessment was only one aspect of the proportionality assessment and the conclusions set out at paragraph 60 of the determination simply failed to address Section 117B.
4. Permission was granted by First-tier Tribunal Judge Dineen on the basis that as the appellant had spent the first twenty years of her life in Nigeria and there was an absence of evidence as to the circumstances she would encounter in Nigeria the first ground was arguable. It was noted that in fact Section 117B had been taken into account. It was suggested that subSections (1) and (3) to (5) told against the appellant and subSection 117B(2) was neutral.
5. At the hearing before me Mr Nath vigorously challenged the decision and requested that I read the refusal letter made by the Secretary of State carefully to place this application in context. The appellant had produced no evidence of employment prospects and no evidence of charitable support. There was no indication of how she would fare compared with other single parents and the judge had made findings at paragraph 30 without basis.
6. Mr Nath produced AM (S.117B) Malawi [2015] UKUT 0260 (IAC) and argued that this case had not been considered. The family would transfer as a family unit to Nigeria and the appellant's children could merely access the education and welfare state in Nigeria. There was no detail to the assessment given by the judge. None of the family members had status.
7. Mr Harris submitted that the judge had found the appellant credible. My attention was drawn to paragraph 14 where Mr Harris submitted that this raised the question of a possible trafficking situation. Mr Harris also submitted that the respondent had not attended the hearing before the First-tier Tribunal Judge and reminded me that it was an adversarial system and the consequences for non-attendance and a failure to argue the case and a failure to submit relevant evidence should not result in the respondent raising disagreements at a later date. The appellant had put forward her case and the judge had found it easier to accept that case in the absence of challenge from the respondent.
8. The judge looked very carefully at paragraph 276ADE(6) and the assessment was detailed. The judge concluded that there was a lack of ties and the appellant faced destitution should she return with her two dependent children. It was open to the judge to accept the case on the evidence which was before her. From paragraph 24 onwards the judge engaged fully with the appellant's case that she had no ties and as a single mother without support would face exploitation.
9. The judge had carefully considered the position of the Secretary of State by citing the Immigration Directorate Instructions and she had specifically addressed the test raised in those instructions which related to serious hardship.
10. The judge made reference to serious hardship and this was the approach she adopted in her considerations recorded at paragraphs 29 and 30. The respondent may not agree with what the judge's findings were but that does not mean that they were in error. The context of her vulnerability and the risk should have been taken into account.
11. I was reminded that this was an 'old-style' appeal.
12. Nonetheless the judge had proceeded on the basis of Article 8 outside the Rules. The assertion that the judge failed to take into account of Section 117B was flawed. After delving into the best interests of the children the judge specifically refers at paragraphs 45, 47 and 48 in relation to Part 5A. She specifically engages at paragraph 50 with the linguistic issues and the fact that the appellant was not self-sufficient financially.
13. The judge placed emphasis on the best interests of the children and found that these did in fact outweigh the factors to be considered under Section 117B in Part 5. It was not necessarily the education, language or health that persuaded the judge to grant this but the disruption to the lives of the children. She noted that the children had not been here for seven years but they had been present during their important formative years.
14. I asked Mr Harris to address me in relation to ground (ii) and Mr Harris reminded me that the assessment was fact-sensitive and the appellant had given her own evidence which had been accepted by the judge and there was no requirement of to provide specific evidence under the Rules in reference to paragraph 276ADE(iv) and the appellant had given her own evidence of her personal circumstances which the judge had accepted.
15. In response Mr Nath asked me to consider the lengthy and detailed reasons for refusal letter which is where the judge needed to set out the reasoning. That letter had addressed the facilities in Nigeria. The burden was on the appellant to show that she had reached the threshold and she must show the facilities which were not available in Nigeria.
16. There was a requirement to provide documentation and the judge had made findings in respect of her being a single parent but had not addressed the evidence in the reasons for refusal letter, had not set out the facilities in Lagos and had failed to look at relevant parts of the evidence.
Conclusions
17. On a reading of the determination as a whole it is clear that the judge has set out the relevant facts and had those in mind when making the decision. The judge has also directed herself correctly in law. The judge set out the background to the appellant's case from paragraphs 12 to 18:
"12. The appellant asserts that she lived in Nigeria in Ogun state with her mother. Her father died when she was aged 3. She had a sibling but he died before she was born. She is the only child. She helped her mother to sell things namely bottled water. Her maternal aunt died before her mother died.
13. She worked as a housegirl in Lagos after her mother fell ill. She used to visit home every year. She met EAM's father where she used to work. He was a driver. The appellant stated that he was from a different tribe in that he was a Muslim while she is a Christian. In her statement she asserts that his family wanted to kill her because they did not approve of their relationship. He died when she was expecting EAM. His family blamed her for his death. Some of his family members also lived in Lagos.
14. The appellant asserts the people she worked for helped her to come to the UK. They found and paid for the agent. She told her employers the problem she had. She left EAM with her mother. She came through the airport in December 2000. The agent took her to a house where she did housework for the owners of the house. She believes the husband was African but did not which country he was from but the wife was from Nigeria. She stayed there from 2000 to 2007. She was not allowed to go out and used the police to threaten her. They said they will kill her. They did not pay her but they used to give her money so she could send to her mother to look after her son. The family told her that they were going to travel abroad and told her to leave the house. She therefore slept in churches and congregation members' homes. She continued to live like this until she met GOA's father in 2009.
15. The appellant asserts her mother passed away in 2007 and EAM was looked after by his father's friend named Lukman. EAM arrived in the UK in March 2010 with the help of an agent. The appellant stated that she has heard from Lukman's wife that he died in 2014 and that he was poisoned.
16. The appellant asserts that GOA was born in the UK. She is not aware of his father's immigration status but believed he had submitted an application. He is also a Nigerian. His name is Adeola Adotun Adeeso. She met him in 2009 in London. They did not live together as a couple. He was not happy with the pregnancy and they began having problems. They eventually separated. She begged him to accept GOA as his son. He agreed to attend the registry office with her to register GOA. She has not seen him since that time.
17. The appellant asserts that in 2009 she was taken to a solicitor by her friend. The solicitor said that they will make an application for her but she was not aware what type of application was submitted. Since 2014 she and her children have been supported by the social services.
18. The appellant asserts that she has no social, cultural or family ties to Nigeria. Her children are well settled in the UK. EAM attends school and is in Year 10 and preparing for his GCSEs. He is a very bright student and has adapted to the British culture and is happy here. He is at a crucial stage of his education and the removal would have a great impact on his life and education. She has informed EAM that they might have to go back to Nigeria. Since he found out he has not been feeling well. He speaks about his school and his career. He helps her to do her homework as she is studying for ESOL level 3 which she started at college in 2015."
18. Mr Harris suggested to me that there was an indication of trafficking which had not been addressed but this was not a finding made by the judge and not a point which was under challenge from the appellant. The only challenge for my consideration was that that was in the grounds of application by the Secretary of State.
19. With regard to grounds (i) and (ii) there is no requirement to provide specific evidence under the Rules with reference to paragraph 276ADE(iv) when identifying very significant obstacles. The judge had taken into account the evidence as told by the appellant and clearly set out the evidence because she made a finding that the appellant was credible and that she accepted the evidence given. This is important because there was no challenge by the Secretary of State in the grounds of application to the findings of the judge in relation to credibility. As Mr Harris noted, the assessment under the Immigration Rules and as to whether there were very significant obstacles to her return to Nigeria and which the judge specifically identified at paragraph 24 would depend on the judge's assessment of the appellant's evidence and would be fact-sensitive. As noted, there is no indication under the Rules that there should be a comparator by way of another single parent returning to Nigeria. The focus is on the individual and her children.
20. The judge gave specific reasons for finding the appellant to be a credible witness, not just accepting at face value her evidence but because the background was accepted. The judge noted that:
"24. The appellant asserts that she meets the requirement under paragraph 276ADE(1)(vi), in that there would be very significant obstacles to her integration in Nigeria because no support will be available from friends or family. She has no family or friends in Nigeria and her mother passed away in 2007. She also asserts that she will be unable to find employment to support herself and her sons. As a single mother without family support she will be vulnerable to exploitation. As a single mother with no family support it would be unduly harsh and this would amount to very significant obstacles to her integration in Nigeria."
21. The appellant would be returning with one very young child who presents with medical difficulties suggestive of epilepsy and although it is not the medical difficulties themselves which are relevant it is clear that he is a child who needs care and attention and this was identified at paragraph 56 in the form of the Consultant Community Paediatrician's report. It was the cumulative assessment by the judge of the best interests of the children which would include the integration by the older son within the education system and the health difficulties of GOA together with the vulnerability of the appellant which is described at paragraph 14 that led the judge to make a finding that there would be very significant obstacles to her integration in Nigeria.
22. Of particular importance is that the appellant's evidence that she would have no family or friends in Nigeria. This was relevant to the judge's assessment in paragraph 24 and as to whether she would be able to find employment. The judge found her a single mother who would be responsible for caring for her children; without family support the judge concluded that she would be vulnerable to exploitation which would contribute to the very significant obstacles to her integration in Nigeria.
23. The Home Office made a reference to the healthcare facilities and education facilities within the reasons for refusal letter, and the decision letter specifically made a reference to the Country of Origin Information request dated 6th May 2014 regarding shelters and accommodation in Nigeria. I have considered the documentation referred to by the Secretary of State in the refusal letter and it is clear that there is education available in Nigeria but only up to the age of 15. It is also clear that there is healthcare and that the appellant's children's health difficulties do not reach the level required for a breach of Article 3. A comparison of education or health care facilities does not assist the appellant and with regard healthcare, a principle which must extend to education, and MM (Zimbabwe) [2012] EWCA Civ 279 had this to say:
"17. The essential principle is that the ECHR does not impose any obligation on the contracting states to provide those liable to deportation with medical treatment lacking in their 'home countries'. This principle applies even where the consequence will be that the deportee's life will be significantly shortened (see Lord Nicholls in N v Home Secretary [2005] 2 AC 296, 304 [15] and N v UK [2008] 47 EHRR 885 (paragraph 44)).
18. Although that principle was expressed in those cases in relation to Article 3, it is a principle which must apply to Article 8. It makes no sense to refuse to recognise a 'medical care' obligation in relation to Article 3, but to acknowledge it in relation to Article 8."
24. The judge made a further observation at paragraph 30 as follows:
"30. I accept that the appellant has no family, friends or social networks in Nigeria. There is no evidence before me to suggest that there are organisations in Nigeria which may be able to assist the appellant with integration. The appellant is a single mother of two minor children with no support for their basic needs in terms of accommodation, food and medical assistance. I find that this entails very serious hardship for the appellant in establishing a private life in Nigeria. For this reason I find that the appellant has established that there would be very significant obstacles to her integration in Nigeria pursuant to paragraph 276ADE(1)(vi)."
25. Mr Nath submitted that it was for the appellant to produce evidence in relation to support and accommodation on return. I note that the judge accepted the appellant's evidence that she would be without a support network and when on close inspection of the evidence produced by the Home Office, it appears that the transit shelters were not majorly for single parents but for victims of domestic violence, abuse and trafficking.
26. There was no finding made by the judge in respect of trafficking or that the appellant was trafficked albeit that it is clear from an overall reading of the decision that the judge found the appellant may be open to exploitation on return. On the evidence given by the Secretary of State and that was before the Tribunal, there was no specific shelter for single parents in the circumstances that the appellant finds herself and that the judge accepted. Had there been such evidence it may well be that the Secretary of State would have produced it. It was asserted that the appellant should have produced documentation to the effect that she could not access accommodation but it is clear that she would be trying to prove a negative. It was open to the judge to make a rounded assessment of all of the evidence produced to her and she clearly accepted the evidence of the appellant with regard to the very serious hardship that she would meet on return to Nigeria. I repeat that it is clear from the face of the determination that it is not one particular aspect that meant that the appellant would meet the sufficiently high level or threshold of very serious hardship or one particular aspect of her case but a cumulative assessment under the Rules.
27. The judge went on to make a finding outside the Immigration Rules if she was wrong in respect of her assessment within the Immigration Rules and noted that the family life was between the appellant and her children and there would be no interference as such; the judge directed herself appropriately with respect to the test under Huang v SSHD [2007] UKHL 11. With respect to Mr Nath's assertion that the judge had not considered AM (S 117B) Malawi [2015] UKUT 0260 (IAC) and the appellant's unlawful immigration status, the judge set out and was clear about the appellant's immigration history and very clear that she was in the UK unlawfully. The judge cited AM at paragraph 48. I will return to this issue below when specifically addressing ground (iii).
28. The judge was equally clear when she made an assessment of the best interests of the children that they had not lived in the UK for the requisite seven years. That does not, however, preclude the judge from making a finding under paragraph 276ADE(vi) in favour of all three of the appellants. The judge, as pointed out by Mr Harris, despite the absence of the Secretary of State at the hearing before the First-tier Tribunal Judge did take into account the position of the Secretary of State in relation to the Immigration Rules as per SS Congo v SSHD [2015] EWCA Civ 317 and also quoted the Immigration Directorate Instruction Family Migration Appendix FM Section 1.0b at paragraph 27.
29. The judge applied Azimi-Moayed (decisions affecting children onward appeals) [2013] UKUT 197 (IAC) as to the starting point for an assessment of the best interests of the children but also at [43]-[44] made specific references to EV Philippines [2014] EWCA Civ 874 and specifically paragraph 58, which states as follows:
"43. I note in EV (Philippines) Lewison LJ said at paragraph 58:
'In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?'
44. He concluded at paragraph 60:
'In our case none of the family is a British citizen. None has the right to remain in this country. If the mother is removed, the father has no independent right to remain. If the parents are removed, then it is entirely reasonable to expect the children to go with them. As the immigration judge found it is obviously in their best interests to remain with their parents. Although it is, of course a question of fact for the tribunal, I cannot see that the desirability of being educated at public expense in the UK can outweigh the benefit to the children of remaining with their parents. Just as we cannot provide medical treatment for the world, so we cannot educate the world.'"
30. The judge, aware of EV Philippines, at [54] drew the picture of the older child's schooling not least that EAM had been here for just over six years, (clearly brought here as a minor), was in secondary education and that he had little or no ties with Nigeria and was currently in Year 10 of his GCSE year. The majority of his schooling had been in the UK and he was at an advanced 'or critical stage' of his educational career. This was a factor that the judge would be obliged to take into account but it is not apparent that the judge overemphasised this point.
31. There can be no doubt that the judge, contrary to the assertion in ground (iii), took into account Section 117B of the Nationality, Immigration and Asylum Act and this can be found at paragraphs 45 to 49.
32. Not only did the judge make the relevant and appropriate legal directions but also applied the relevant law to the facts. At paragraph 50 the judge found that the appellant spoke English but found it was a neutral factor but also noted that she was in the UK unlawfully and that she was not financially independent. The Secretary of State asserts that she had not produced evidence to show that she could not receive remittances from the UK and as the appellant is on benefits I find this a somewhat surprising contention.
33. The judge had set out the relevant immigration history of the appellant identifying that she claimed to have entered the UK on 15th December 2000 with the assistance of an agent and the judge clearly identified that she had remained in the UK unlawfully since that time. The judge also set out that EAM, the son, was brought to the UK by an agent. Subsequent from paragraphs 3 to 10 the judge recorded all of the failed applications made by the appellant to remain on human rights grounds. I do not find that the judge was not aware of the immigration status and background of the applicant and failed to factor this into the balancing exercise.
34. The judge made the assessment of the children and their best interests and took into account their educational interests and their medical interests, finding that the removal of particularly EAM would be disruptive academically, socially and emotionally given the level of his integration and the establishment of his private life outside of the family unit. This was the finding at paragraph 58. It is clear that EAM is now 15 and has spent the last six years of his life at secondary school and the judge found that he had spent his key formative years here. It is not the case that the judge has made an assessment on the basis that the best interests of the children were a trump card but their best interests is a key consideration.
35. I find the Judge's decision to be comprehensive, thorough and realistic. It was open to the judge to make an assessment as she did. It is clear at paragraph 35 that she stated that the factors to be taken into account included the length of the appellant's stay in the UK, the nationalities of the various persons concerned, the appellant's family situation, the ages of any children concerned and the seriousness of the difficulties the family was likely to encounter in the country to which the family would be removed. The judge noted that the children should not suffer as a result of the behaviour of their parent but identified that in certain cases the cumulative effect of the other factors might still outweigh the best interests of the children. A child's interests are a primary consideration but they are not paramount in the final analysis.
36. The judge legally directed herself appropriately and made a full analysis of the relevant factors with which the Secretary of State merely disagrees.
Notice of Decision
I find no error of law and the decision of First-tier Tribunal Judge Thapa-Gurung shall stand.

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 her or any member of her 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 Signed 15th December 2016

Helen Rimington

Upper Tribunal Judge Rimington