Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/14940/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5th December 2016
On 6th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

Shakirat [I]
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Murphy of Counsel
For the Respondent: Mr Armstrong, a Home Office Presenting Officer

DECISION AND REASONS
1. The Respondent refused the Appellant's application for leave to remain on 24th March 2015. She is a citizen of Nigeria who was born on 16th November 1964. She was required to leave the United Kingdom. The appeal was dismissed by First-tier Tribunal Judge Rowlands ("the Judge") following a hearing on 14th March 2016. The basis of her claim was that she had two British children living here namely Temitope, who at the date of hearing was nearly 22 having been born on 24th April 1994, and Arike, who at the date of the hearing was nearly 15 having been born on 17th April 2001.
The Grant of Permission
2. First-tier Tribunal Judge Nicholson granted permission to appeal (20th September 2016). He said that it is arguable that the Judge made no specific finding as to whether the Appellant enjoyed a family life with Arike, or that if there was a family life, whether the provisions of Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 were met.
3. He did not refuse permission on the other grounds, which in essence were that there was no finding as to why removal of the Appellant would not engage the Article 8 rights Temitope, the elder daughter, had. The Judge wrongly determined the best interests' assessment of Arike. The Judge did not determine correctly the Article 8 rights of the Appellant's partner given his health problems and lack of accommodation in Nigeria, and the insurmountable obstacles that would flow from her being required to leave in relation to that relationship.
Respondent's Position
4. In the Rule 24 notice (6th November 2016) the Respondent asserted that the Judge directed himself appropriately. It was for the Appellant to demonstrate on the balance of probabilities that she had a genuine and subsisting parental relationship with Arike but the Judge clearly rejects the evidence of there being a close relationship as Arike had been abandoned by her. In addition, it was submitted that Temitope is 22 and living independently, the relationship is not one that engages Article 8, and no consequences of gravity would flow from that decision. The best interests' assessment was properly considered as the Judge specifically said that it was in the best interests of Arike to remain here with or without her mother. In addition, the judge correctly applied the insurmountable obstacle test as identified in SS (Congo) [2015] EWCA Civ 387and Agyarko [2015] EWCA Civ 440. In addition, it was orally submitted that the Judge was entitled to find that the Appellant had effectively abandoned her maternal role. The Judge considered all the evidence having gone through the oral and written statements, and there was nothing exceptional about this case.
Appellant's Position
5. Mr Murphy submitted that the Judge had not properly considered Rajendran (s117B - family life) [2016] UKUT 138 (IAC) which states that:
"1. That 'precariousness' is a criterion of relevance to family life as well as private life cases is an established part of Article 8 jurisprudence.
2. The 'little weight' provisions of Section 117B(4)(a) and (5) of the Nationality, Immigration and Asylum Act 2002 are confined to 'private life' established by a person at a time when their immigration status is unlawful or precarious. However, this does not mean that when answering the 'public interest question' posed by Section 117A(2) - (3) a court or Tribunal should disregard 'precarious family life' criteria set out in established Article 8 jurisprudence. Given that Section 117A - D considerations are not exhaustive, in certain cases it may be an error of law for a court or Tribunal to disregard relevant public interest considerations."
6. In essence the Judge made no finding as to what the parental relationship was. The findings were incomplete and unclear. The evidence regarding the family life in 2006 ([23] of determination) does not equate to the position when the Judge heard the appeal, and does not enable the question of whether it would be reasonable to expect the child to leave the United Kingdom as required in Section 117B(6)(b) to be answered.
Judge's Determination
7. It was found in the determination that:
"[21] Clearly there is no issue that her two daughters are living in the UK. The eldest Temitope is now 22 years of age, she has not lived with her mother nor is there seemingly any intention of her to do so. She is effectively living an independent life even though she lives with her uncle. I note that back in 2013 she had started at University and assuming that she has remained there she could either still be there or just have left with her degree.
[22] I have noted the findings of the Judge at her appeal in 2013. In particular it was noted that 'she has effectively abandoned her maternal role' when referring to the Appellant. The Appellant and her daughter maintain that since then there has been some contact between them. I note that it is still the case that there can be family life between adult children and parents and I accept that there is some family life between mother and daughter in this case however, I do not accept that it is such that removal of the Appellant would have such an effect as to engage Article 8.
[23] As to the situation with the youngest daughter Arike I have noted that she has applied for leave to remain in the United Kingdom in her own right. She is nearly 15 years of age and had been in the United Kingdom for nearly 10 years. Her application, submitted on 4th March 2006 states that she lives with her grandmother during term time and only visits her mother at weekends and school holidays. This contrasts with her mother's claim that she is 'used to seeing her every day around her'. The Appellant claims to be in a very close relationship with her daughter and fully supports her emotionally. I am not satisfied that I am being told the truth by the Appellant.
[24] Sadly I believe she is using her relationship with her daughters to try and remain here. Although she claims a close relationship her daughter she effectively abandoned her with her grandmother at a young age, I note I have not received any kind of statement from the girl herself nor from the grandmother to confirm the connection between mother and daughter and I am not satisfied that the relationship is as close as claimed. Certainly I am not satisfied that the daughter would be at all likely to leave the United Kingdom with her mother.
[26] The best interests of Arike lie in remaining in the United Kingdom with or without her mother. I do not believe that removal of her mother will affect that. I am not satisfied the relationship is such that her daughter's interest is dependent on her remaining in the United Kingdom.
[27] I am satisfied that the Appellant cannot satisfy the immigration rules so far as her relationship with her daughters is concerned. She has one adult daughter and she cannot show that she has sole responsibility for her younger daughter. Having considered all the circumstances or the relationship between them I am not satisfied that there are any exceptional circumstances that need to be considered outside the immigration rules.
[28] I then move to consider the question of her relationship with her mother and brother. Clearly both came to the United Kingdom long before she did and even after she came here she had very little to do with them for a long time. I am not satisfied that their relationship is such that would engage Article 8 either within the immigration rules or without.
[29] I move then to consider her relationship with Larry Giwa and whether, because of it, she should not be removed. The Respondent concedes that there is a genuine and subsisting relationship between them and that means that the eligibility requirements for leave to remain as a partner are met. The next question is whether there are insurmountable obstacle to family life with him should they both have to return or at least she has to return to Nigeria. I am not satisfied that such obstacles exist.
[30] Her partner is Nigerian and has spent most of his life there. He would have no language difficulties. According to her he has known from the beginning that she had no status and must have entered into the relationship knowing that there was a real risk that she may be returned. He had no legitimate expectation that she would be allowed to stay.
[31] ? he told me ? that his parents and his sister were in Nigeria. ? It seems to me that the only real reason he cannot go with her is financial in that he would lose his job. He has raised medical issues but provided no evidence to confirm he has glaucoma or high blood pressure. He is only 47 years of age. I can see no obstacles to all of them living together in Nigeria let alone insurmountable ones."
Discussion
8. I am not satisfied that the Judge has adequately considered whether or not at the date of hearing the Appellant had a parental relationship with Arike. The evidence from 2006 is of such age as to be of little value 10 years later. It is entirely conceivable that when Arike in 2006 was 4 or 5 years old she had a very different relationship with her mother than she does in 2016 at the age of almost 15. There was no assessment of the current relationship between them in accordance with Section 117B(6). Without that assessment, the best interest assessment was inadequate.
9. I am not satisfied that any of the other grounds were in fact made out as, in relation to Larry Giwa and Temitope, there was an adequate assessment of the relationships and difficulties that could be caused by the Appellant being required to leave the United Kingdom and make any relevant application for entry clearance or otherwise as the case may be.
10. I agree with both representatives that given the finding I have made in relation to the lack of proper assessment and an inadequate finding regarding the parental relationship between the Appellant and Arike, the matter would need to be remitted to the First-tier Tribunal other than Judge Rowlands. For the avoidance of any doubt I set aside all findings in relation to Arike but preserve the ones relating to Larry Giwa and Temitope.
Notice of Decision
11. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
12. I set aside the decision.
13. I remit the matter to the First-tier Tribunal for rehearing before a judge other than Judge Rowlands.
14. No anonymity direction is made.

Signed Date 23 December 2016

Deputy Upper Tribunal Judge Saffer