Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15426/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30 January 2017
On 7 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

THE SECRETART OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr David Adeyinka Shittu
(anonymity direction NOT MADE)
Respondent

Representation:

For the Appellant: Mr S Whitwell, Home Office Presenting Officer
For the Respondent: Ms G S Peterson, Counsel, instructed by M & K Solicitors

DECISION AND REASONS

1. This is an appeal from the decision of First-tier Tribunal Judge Anthony promulgated on 3 June 2016. The appeal relates to a family unit whose family originating from Nigeria. The principal appeal concerned the infant son of the family and it is accepted the claims in relation to his parents and siblings are parasitic upon his.

2. The Secretary of State appeals the decision to the Upper Tribunal today pursuant to a grant of permission by First-tier Tribunal Judge Lever, on the grounds of what are said to be contradictory findings made in respect of the child.

3. The grounds drew specific attention to an apparent contradiction between the content of paragraphs 55 and 56 of the decision and it is appropriate that I read both those paragraphs into this determination.

"55. On the other hand, taking into account Aaron's tender age coupled with his educational achievements, intellectual ability and the support of a stable family unit, Aaron would, foreseeably, adapt over time. There is no suggestion that his health would be detrimentally affected or that there would be any irreparable rupture in his academic progress. Nor is it claimed that his career aims could not be achieved in his country of origin. This is a stable and healthy family unit.

56. However, I remind myself that the test to be applied is that of reasonableness. Therefore, the factors to which I give determinative weight are his deep immersion in all aspects of life in this country and his minimal connections with his country of origin. I conclude that it would be unreasonable for Aaron to return to Nigeria."

4. The appeal was advanced before me on a slightly more extended basis and the particular criticism that account was not taken of the decision of this Tribunal in the case of Kaur (children's best interests / public interest interface) [2017] UKUT 00014, which was promulgated after the First-tier Tribunal decision in this case. It is a decision of the President l and I need simply quote from the head note to the reported version. It makes reference to the provisions of Part 5A of the Nationality, Immigration and Asylum Act 2002 and states:

"(3) In the proportionality balancing exercise, the best interests of a child must be assessed in isolation from other factors, such as parental misconduct.

(4) The best interests assessment should normally be carried out at the beginning of the balancing exercise."

5. It is apparent from reading this determination, and indeed it is fairly conceded by Ms Peterson on the respondents' behalf, that the decision does not set out the arguments in the most ideal order. Clearly, as a counsel of perfection, what is commended by the President in Kaur should be followed. But the issue for me to determine is whether the fact that issues were taken in a different order is indicative of a material error of law in this judge's otherwise detailed and exhaustive detailed.

6. It is said on behalf of the Secretary of State that the balancing exercise was not undertaken at the appropriate time and that insufficient regard was given to a number of factors which include issues of credibility, issues of embellishment of evidence on the part of the parents, and their poor immigration history. It is argued that those should have been taken at a different time in the determination and should have assessed independently.

7. I accept that the order of the determination is not ideal but in my view, when the decision is read in its entirety, the judge has quite properly looked at all relevant and material factors, has carried out the balancing exercise, the proportionality exercise and the assessment of reasonableness in an appropriate way. The findings are clear and cogent and they are based upon clear and unimpeachable findings on the evidence.

8. The conclusions to which the judge came were properly open on the evidence and on the law and I can detect no material error of law. It follows that this appeal must 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 6 February 2017

Deputy Upper Tribunal Judge Hill QC