Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13886/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 December 2016
On 14 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

MR PHIL [A]
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Mr A Kamal, Solicitor, instructed by Nasim & Co Solicitors
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal from a decision of First-tier Tribunal Judge Beg promulgated on 27 April 2016. The appellant is a citizen of Nigeria, born on 1 January 1973, who appealed the respondent's decision dated 24 March 2015 refusing to vary his leave to remain in the United Kingdom. Removal directions have subsequently been made.
2. The judge approached the matter by an examination of the Immigration Rules. Mr Kamal who acts for the appellant makes no criticism of the judge's determination and fully accepts that the appellant in this case is unable to satisfy the Immigration Rules either in the spousal category or as a parent of a British child. The judge then went on to carry out a consideration of the matter outside of the Rules particularly with reference to Article 8 of the European Convention on Human Rights.
3. Mr Kamal's sole submission to today is that the judge got the proportionality assessment wrong. When I asked him to take me to those elements within the decision where the error of law can be found he directed me only to one paragraph, namely paragraph 25 and to two passages within that paragraph. First, he referred me to the beginning: "The youngest child is only a few months old. I find that the effect on her of the appellant's absence would be minimal". Mr Kamal suggests that the effect on the young child would be more than minimal and the judge should have taken that into account. However, this was a conclusion that the judge was perfectly entitled to come to on the evidence she had heard and it is within the boundaries of legitimate conclusions which fact finding bodies can come to. I can find no justification in this criticism.
4. Mr Kamal next takes me to the final sentence of paragraph 25: "I do not find that the interference in all the circumstances will be disproportionate" Mr Kamal submits that the interference would indeed be disproportionate. He argues first that the appellant is fluent in English and is financially self-sufficient and therefore not a burden upon the State. He also argues that were the appellant to return to Nigeria he would be in a position to seek entry clearance from overseas which could take three months or if contentious nearer to twelve months. He makes the point that the appellant is not yet married to the sponsor and for that to take place the sponsor would need to travel to Nigeria but due to the children's ages they would have to go with her. I do not consider that factors, either individually or cumulatively, are such as to suggest that there was any error by this judge in carrying out the proportionality assessment. It was she who had heard the evidence. She had the matters very firmly in her mind and was aware amongst other things that the appellant's relationship with the elder child had been maintained largely from overseas remotely by means of telephone or otherwise.
5. In all the circumstances I can find no material error of law in the way the First-tier Tribunal Judge assessed the matter. It may well be that other judges would have come to a different conclusion but the determination the judge came to was within the range of legitimacy and the appeal must accordingly be dismissed.
Notice of Decision
The appeal is dismissed, and the decision of the First-tier Tribunal affirmed.
No anonymity direction is made.

Signed Mark Hill Date 14 December 2016

Deputy Upper Tribunal Judge Hill QC