Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15452/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 April 2017
On 20 April 2017

Before

UPPER TRIBUNAL JUDGE JORDAN

Between

The Secretary Of State For The Home Department
Appellant
and

Dada
Respondent

Representation:
For the appellant: Mr S. Staunton, Home Office Presenting Officer
For the respondent: Mr D. Lemer of Counsel, instructed by Howe & Co., solicitors

DETERMINATION AND REASONS

1. This is the re-making of the decision following my earlier conclusion that the First-tier Tribunal Judge made a material error of law in allowing the appeal on human rights grounds in favour of all of the appellants. There is only one ground that matters. This concerns whether it is unreasonable or disproportionate to require the family’s removal to Nigeria.

2. It is unnecessary to repeat the background facts which are set out in the determination of First-tier Tribunal Judge Crosfill and my decision of 3 February 2017. My decision is to be found annexed to this determination and forms the introduction to the present determination. The family’s appeals could not properly be argued on the basis of a viable human rights claim derived from the situation of the parents. Instead, the case could only be argued on the basis that removal decisions in relation to J, who was born on 30 March 2005 in Nigeria and D, who was born on 22 November 2007 in the United Kingdom violated their protected private lives and that this was sufficient to prevent the parents’ removal. At the time of the First-tier Tribunal Judge’s decision, the children were aged 10 and 8 respectively; they are now aged 11 and 9.

3. The First-tier Tribunal Judge concluded that D, the younger brother, could not succeed whereas J, his elder brother, did succeed. The substance of my finding that this amounted to a material error was that the distinctions that the First-tier Tribunal Judge sought to draw between the two boys were essentially illusory.

4. In particular, I was concerned that the judge appeared to have drawn a distinction between J and his brother because J was a bright and successful student whereas his brother was not quite so exceptional. I was concerned that no principled distinction could be made between high achieving and average pupils. I said:

On the reasoning adopted by the First-tier Tribunal Judge, there is almost no discernible difference between these two children. The impression I am left with is that the decision is made in favour of J because he has worked hard and has been offered a place in a good school whereas D is rather more average and sometimes his behaviour falls short of the ideal. For my part, I deprecate the application of a proportionality balance or a reasonableness test on the basis of an educational beauty contest. It should be remembered that neither child is entitled to free education in the United Kingdom, selective or otherwise.

5. I did not then re-make the decision. I was conscious that we are dealing with children whose welfare is not only a primary consideration but one of the utmost importance in a civilised society. The claims of these vulnerable victims of their parents’ wrongdoing cannot be determinative but neither should they be marginalised by a summary determination of the appeal. It was for this reason that I decided that the appellants should have an opportunity of a fresh hearing to enable the fullest consideration of the parties’ respective claims.

6. The re-making of the appeal before me was conducted without the need to repeat the evidence that had already been provided. The written material includes witness statements and an expert report. The boys’ mother, Mrs Dada gave evidence bringing matters up-to-date and the appeal then proceeded by way of additional submissions.

7. Mrs Dada told me that J had been successful in his application to the Imperial Sutton programme. This is a new 2 ½ year programme for high-attaining key-stage 3 students which was launched in the spring of 2017 backed by Imperial College London. It is designed to teach students about coding, programming and the application of those IT skills in the sciences and engineering. The programme involves a summer challenge activity day in year-one and an introduction to new technology over a series of six on-campus days designed to advance and refine the students’ programming skills in year-two, concluding in year-three with a weekend residential course at the college’s South Kensington Campus. She described how J has been getting on well at school. It was her son’s teacher who selected J for consideration of inclusion into the programme and only five of those put forward were selected. Mrs Dada described how J maintains contact with his old friends from school as well as having formed new relationships at his new school. He is, naturally, aware of the impending immigration appeal and the consequences that this may have for him.

8. Mrs Dada also spoke of attending a parent-teacher evening in relation to D. His teacher was impressed with his work which was focused and demonstrated that he was trying to improve. His growing maturity has resulted in his being selected to look after other children at school-break time. He, too, is aware of the ongoing asylum appeal process.

9. Mr Lemer acknowledging, at least implicitly, the difficulty about drawing distinctions between these two brothers, did not make detailed submissions which drew out the differences between J and D. Rather, he submitted that the claims of both children were sufficiently strong for me to conclude that their removal was unreasonable and disproportionate. Inevitably, this meant that the First-tier Tribunal was wrong in concluding that D’s case should fail, a point not hitherto identified in a Rule 24 response.

10. The issue before me is informed by the statutory placement of public interest criteria in the form of section 117A to D which provides where material:

117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B,

117B Article 8: public interest considerations applicable in all cases

(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.

11. In Agyarko and Ikuga, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 11 (22 February 2017), the Supreme Court considered the interplay between the legitimate use by the Secretary of State of administrative policies in order to guide decision-making and, in the context of immigration, Parliamentary legislation exercising oversight of these aspects of administrative decision-making on the one had and, on the other, the Human Rights Act which has imposed on the Secretary of State a statutory duty not to act incompatibly with the ECHR.

12. The Supreme Court recorded that the European court has said that, in cases concerned with precarious family life, it is ‘likely’ only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8. That reflects the weight attached to the contracting states' right to control their borders, as an attribute of their sovereignty, and the limited weight which is generally attached to family life established in the full knowledge that its continuation in the contracting state is unlawful or precarious. The Convention was not intended to undermine that right by enabling non-nationals to evade immigration control by establishing a family life while present in the host state unlawfully or temporarily, and then presenting it with a fait accompli. On the contrary, “where confronted with a fait accompli the removal of the non-national family member by the authorities would be incompatible with article 8 only in exceptional circumstances" (Jeunesse v The Netherlands (2015) 60 EHRR 17, paragraph 114).

13. Similarly, the decision of the Court of Appeal in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192. Lord Dyson MR, giving the judgment of the court, said in paragraph 42 in the context of deportation:

"In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual's article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be 'exceptional') is required to outweigh the public interest in removal."

14. The test must be one of proportionality. The Supreme Court in Agyarko concluded that the reference to exceptional circumstances in the European case law means that, in cases involving precarious family life, "something very compelling ... is required to outweigh the public interest", applying a proportionality test. The critical issue will generally be whether, giving due weight to the strength of the public interest in the removal of the person in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.

15. Hence, in this case, a proportionality balance requires me to consider whether it is proportionate to require this family to leave the United Kingdom notwithstanding the level of interference that will result in the children’s education and the inevitable impact removal will have to their hopes and aspirations (and those of their parents) given what the children have achieved so far and what more they might achieve were they to be allowed to remain.

16. I am prepared to accept that D has shown a marked improvement in demonstrating greater maturity. For the reasons I had earlier given, however, I am not prepared to treat this as a competitive examination in which the intellectual capabilities or the child’s exemplary behaviour should significantly affect the assessment of a reasonable response or the proportionality exercise. In particular, even if the evidence about D had remained unaltered since the hearing before the First-tier Tribunal, I would not have been prepared to marginalise the extent of his protected rights merely because he was average and, by average, I include being average in his level of behaviour. I recognise that there may have been lapses from time to time but I emphasise that no details of any such lapses have been identified to me. He appears disarmingly normal.

17. In support of the claim, Ms Valerie Irish of Social Work Reports Ltd wrote a report dealing with the social circumstances of Mr and Mrs Dada and their two children. In section 1.03, the writer spoke of the mother’s fears about what the children would experience on return to Nigeria. Ms Irish stated on pages 10 and 11;

Another major concern for Mr and Mrs Dada is the children’s inability to fit in with the local children in Nigeria. This is not just based on the language barrier but them looking and acting differently from the local children. They remain concerned that this will leave them open to exclusion and bullying. In addition, she believes that owing to their presentation, the family would be charged more for general amenities such as accommodation, food and water, as people would believe they had money.

In a family unit ensuring the well-being of children in any case is paramount. The well-being of children is a balance that is more fragile than any other. Owing to the negative changes that the family would have to experience if they were forced to relocate to Nigeria, it is in the children’s best interests that they remain in the United Kingdom so that they can receive the ongoing education, care, nurturing and support that they are currently receiving from their teachers, extended family and friends all in the United Kingdom.

…Finally, in my experience as a mental health practitioner and on the basis of my assessment of the issues and problems this family have personally, if this situation is not resolved in a positive way, it would lead to deterioration in the well-being of these children psychologically. The emotional cost to these children and their future would be great. I am concerned that there is a real risk of this eventuality on the basis of what I have observed and what has been reported to me.

18. The evidence for Ms Irish was summarised by the judge in paragraph 40 of the determination and, in particular, paragraphs 40.6 to 40.10. The judge accepted the evidence of the social work report that J had no memory of Nigeria, that their experience of Nigerian culture is moderate given their involvement with their church and local Nigerian community. The judge noted that the majority of letters in support were from others of West African heritage. They had cousins living nearby. The judge also reported the children had little or no understanding of their immigration status or the effect that might have on their stability. Although the difference may only be marginal, their mother told me that they were aware of the immigration process. The judge also recorded that the children do not speak any local languages but, at the same time, noted that English is an official language in Nigeria and is widely spoken, albeit accents are likely to vary. Finally the judge said the children were well supported and nurtured by their parents, a finding with which I am readily content to agree.

19. For the reasons provided by the judge when he assessed the case of D, I am satisfied that it is not unreasonable to expect both children to leave the United Kingdom. The respective length of time in the United Kingdom is a powerful factor in their favour. D has been here all his life which now amounts to a period of some 9 years. J arrived in the United Kingdom when aged 2 and has not returned to Nigeria since. He has been present for 10 years. It goes without saying that if the family are removed, they would return as a family unit using a language which is widely spoken in Nigeria. Their upbringing within the United Kingdom has been in the milieu of the Nigerian community in the United Kingdom. I would not disagree that there may be significant advantages to the two boys continuing their education in the United Kingdom. It is, however, easy enough for some to assume that a British education is bound to be better than a Nigerian one but to do so runs the risk of over complacent assumptions that ‘British is always best.’ Such an attitude, however, disregards the existence of good education outside the United Kingdom, including in Nigeria. Recognition of this is, perhaps, afforded by the United Kingdom authorities in offering, by way of student visas, an opportunity for continuing education in the United Kingdom which is unlikely to occur if locally-based educational facilities failed to afford a suitable foundation.

20. Nor would I assume that children in the course of their education must experience continuity without which they would experience a significant disadvantage. That is simply not the case. Children have to accompany their parents; families sometimes have to move. There can be no general assumption that such moves prejudice their children’s education. A period of education in a different environment may well enrich a child’s life. It would of course be irrational to conclude that a minor is prejudiced by having to accept education provided in different countries when many young adults, only a few years beyond childhood, seek education in different countries, including the United Kingdom, because of its enriching effect.

21. I am, of course, conscious that the effect upon a child will vary according to his age. For the first five years of a child’s life, taking place almost exclusively within a domestic setting, the impact is likely to be more muted than in later years when the child has been exposed to relationships and experiences within the wider community. Hence, in the cases of both D and J, their presence in the United Kingdom during their primary education is a more significant factor and will become increasingly more significant as time passes.

22. All of these considerations inevitably come into play. Removal will result in inevitable upheaval but not such as to cause irreparable damage. Removal remains proportionate. Against the considerations properly centred upon the children is the public interest in removing families who have no substantive right to remain. Whilst it is a truism to assert that children should not be made responsible for the misconduct of their parents, it cannot be overlooked that this application has been engineered by the parents whose immigration history I described as “depressing” and who have lived in the United Kingdom unlawfully since 2007 at least and, bearing in mind the circumstances in which they were granted a visit visa, probably a longer period. The father was forced, perhaps reluctantly, to concede that their claim to remain based on asylum grounds was delayed because he was advised to wait until his child “became seven years” according to the judge’s note of his cross-examination set out in paragraph 17.6 of the determination. This is an example of the fait accompli provided by way of an example in Jeunesse v The Netherlands, see paragraph 12 above. Their asylum claim was, of course, rejected as not being credible. Their long period of overstaying was, therefore, a conscious effort on their part to improve their prospects of relying upon article 8 to lead to settlement. These considerations must not impinge upon the quite separate consideration of the children’s legitimate claim to remain based on an unlawful interference with their private lives. However, once a full assessment has been made of the impact of removal upon them, it is inevitable that they form part of the Secretary of State’s assessment of the public interest in securing their removal and the underlying consideration that removal is reasonable and proportionate.

23. For the reasons that I provided in deciding that the First-tier Tribunal Judge made an error of law, the circumstances of J’s case do not make out a persuasive claim that merited a distinction being drawn between his circumstances and those of his younger brother. Neither his age nor the period of time spent in the United Kingdom merits any distinction being drawn. Each has friends; each is ‘embedded’ in education.

24. I allow the appeal of the Secretary of State and substitute a determination dismissing the appeals of all the claimants.

DECISION

The First-tier Tribunal Judge made an error of law and the decision allowing the appeals of Mr and Mrs Dada and their children is set aside.

I allow the appeal of the Secretary of State.

I substitute a determination dismissing the appeals of Mr and Mrs Dada and their children against the respondent’s decision refusing them further leave to remain.

ANDREW JORDAN
JUDGE OF THE UPPER TRIBUNAL
11 April 2017

ANNEX

Representation:
For the appellant: Mr S. Walker, Home Office Presenting Officer
For the respondent: Mr C. Jacobs of Counsel, instructed by Howe & Co., solicitors

DECISION ON THE ERROR OF LAW

1. The Secretary of State appeals against the determination of First-tier Tribunal Judge Crosfill promulgated on 23 May 2016 allowing the appeals of Ms D, the principal appellant and her husband and their two minor children whom I shall refer to as ‘J’ and ‘D’. I shall refer to Ms D as the appellant, as she was in the First-tier Tribunal.

2. The appellant was born on 18 June 1967; her husband on 28 June 1968. They have two children, J who was born on 30 March 2005 in Nigeria and is now 11 years old and D who was born in the United Kingdom on 22 November 2007 and is now aged 9. All are Nigerian citizens.

3. The appellant and her husband arrived in the United Kingdom in 2005. The appellant claimed that this was on 2 July 2005 when she arrived accompanied by her husband and her son, J. The appellant was encountered by the authorities attempting to open a bank account using a passport to which she was not entitled. She failed to establish lawful entry and was served with papers notifying her of her liability to detention and removal. Having been detained, the applicant left the United Kingdom voluntarily, accompanied by her son, and her husband joined her later. She returned to the United Kingdom on the strength of a two-year visit visa with our son on 25 December 2006. Her husband also travelled to the United Kingdom. Their son, D, was born in the United Kingdom in November 2007. The family had remained in breach of the terms of their visit visas which would not have entitled them to remain for a continuous period of two years. In any event, the appellant’s visa expired in 2007. They have lived in the United Kingdom unlawfully since at least 2007 and, bearing in mind the circumstances in which they were granted a visit visa, probably a longer period. It is a depressing immigration history.

4. On 25 August 2010 the appellant and her family applied for leave to remain on human rights grounds. By that stage, they had only been in the United Kingdom since 2006 and could not have had any right to remain either on the basis of the Immigration Rules or on human rights grounds. Understandably, that application was refused on 22 September 2010. The family did not depart. Four years later, on 5 December 2014, the family, through solicitors, sought reconsideration of their human rights claim. The application was refused on 14 April 2015. The grounds of appeal to the Tribunal essentially claim that their removal would violate their human rights.

5. The Judge found that the claims of the appellant and her husband attracted very little sympathy in their own right. The reasons are clear from the determination but are also plain from the recital of facts in the preceding paragraphs.

6. The Judge found that the removal of D would not violate his human rights. Her reasons are found in paragraph 45:

In the case of [D] considered in isolation I do not think that it would be unreasonable for him to expect him to leave the UK. He has been here for in excess of 7 years and this is a powerful factor in his favour. However it is not determinative. If removed to Nigeria he would be with his family and I find that he is of an age where he would be able to adapt. English is widely spoken in Nigeria and he would have little difficulty in communicating. I find that his upbringing by his Nigerian parents and their wide circle of Nigerian friends would mean that there would not be any significant cultural shock by his relocation. I therefore find he too is unable to satisfy the requirements of paragraph 276ADE. In reaching that conclusion I recognise that his best interests would be served by remaining in the United Kingdom but find that this primary consideration is outweighed by other factors.

7. These reasons applied with equal force in the case of J. He has also been in the United Kingdom in excess of seven years. If removed to Nigeria he would be with his family. He is at an age where he would be able to adapt. There would be no communication problem. He too was brought up by his Nigerian parents and their wide circle of friends. Nevertheless, in approaching the case of J, the first-tier Tribunal Judge reached quite the opposite conclusion. She said in paragraph 46:

In the case of [J] I come down on the other side of the line. [J] has been brought up in the UK since he was two years old. He has been here for over 8 years. He has completed his primary education and has a network of friends. He is embedded into the UK education system and has excelled. I make the same findings about language and culture as I do for [D]. There is a clear need for proper firm immigration control and his parents have deliberately flouted the rules. The private life that [J] has established has been at times when his status was precarious. That said this cannot be seen as a matter of choice for a young child. I accordingly reach the conclusion that the period of time that he has been in the UK and the stage of his development make it unreasonable for him to leave the UK. I therefore would find that [J] can satisfy paragraph 276ADE of the Immigration Rules.

8. On the strength of this reasoning the Judge allowed the appeal of the other family members. It goes without saying that no outcome imposed by the Tribunal could contemplate the family being split up.

9. Much of the reasoning adopted by the First-tier Tribunal Judge in justifying the continued presence of J in the United Kingdom would also apply to D. J had been brought up in the UK since he was two, D has always been in the United Kingdom. Like his elder brother, D is likely to have a circle of friends. D is embedded into the UK education system. His private life has also been established at times when his status was precarious notwithstanding this was not a matter of his choice. Thus the distinction between the two appears to be that D has been in the United Kingdom in excess of seven years whilst J has been here over 8 years. J has completed his primary education whereas D is in the middle of it, but it might equally be said that D (in the middle of his primary education) would suffer greater interference by removal now compared with his elder brother who had completed his primary education, suggesting a convenient break . The Judge found that J has excelled in his education but points out that D has not done as well, see paragraph 40.4: [D] ‘is an average student (not all his school reports are complimentary about his behaviour’.

10. The distinction between the cases of these two children cannot be starker. Yet, what was the evidence to support his finding? Absent sufficient evidence, the Judge’s appears to be arbitrary, if not irrational.

11. On the face of the determination, the evidence appears to be limited to what the Judge recorded in paragraph 16.15 of the determination in which he records the mother's evidence that

[J] has just passed his 11+ exam and had secured a place at Westminster School for Boys and was on the reserve list at two Essex grammar schools.

12. The Judge expanded upon the distinction in paragraph 41 of the determination, in which the Judge said:

I draw a distinction between the position of D and that of J. D is in his very early years development. He is at an age where if relocated to Nigeria he would find it less difficult to adapt than J who is at a later stage of his development. [There is an age difference of just over two years.] I find that it is likely that he has been working hard towards securing a place at the grammar school for some time. He has achieved that and will start in September. I agree with Valerie Irish that to interrupt that process at this stage in his life and to force him to relocate to a country where he would have to make a fresh start in the education system and in making friends and social contacts Would be a severe developmental step back.

13. On the reasoning adopted by the First-tier Tribunal Judge, there is almost no discernible difference between these two children. The impression I am left with is that the decision is made in favour of J because he has worked hard and has been offered a place in a good school whereas D is rather more average and sometimes his behaviour falls short of the ideal. For my part, I deprecate the application of a proportionality balance or a reasonableness test on the basis of an educational beauty contest. It should be remembered that neither child is entitled to free education in the United Kingdom, selective or otherwise.

14. Leave to remain in the United Kingdom is not, of course, granted on the basis of a reward for good school reports. The assessment of the harm that removal will bring to a young child is not easily assessed by reference to the intelligence of the child, his good or mediocre behaviour and the loss of comparable opportunities in the education system in the receiving country. It goes without saying that removing a child from school will cause disruption. The disruption may well amount to interference sufficient to engage Article 8. However, it is neither unusual nor should it be assumed to be automatically bad. Many parents are required to relocate to another country in pursuit of work or other opportunities that are thereby created. It cannot be suggested that parents are acting contrary to the best interests of their children by deciding to relocate for these reasons. That said, there will be cases where a parent will decide not to avail himself of a job offer if his children’s education has reached a stage where removal would be too prejudicial. In this case, J had not yet started school.

15. Mr Jacobs, with his customary skill, submits that this was a matter for the Judge to determine. The conclusion was open to him. Relying upon such cases as Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 00197(IAC) he argued the Tribunal was permitted, indeed required, to treat each child separately and to distinguish between their different situations. I accept that as a broad statement of principle but the distinctions drawn to justify the outcome (and in this case differing outcomes) must be readily intelligible on the face of the determination. In my judgment, that required the reader of the determination to reach its end and be reassured that he understands the distinctions that were being drawn between these two children and to be satisfied that the distinctions were both legitimate and principled. I am not able to discern that. For these reasons, I find that the First-tier Tribunal’s determination reveals an error on a point of law and I set it aside.

16. I am, inevitably, sympathetic to the adverse impact of removal upon a young, intelligent hard-working young man. However, that is likely to be the normal effect of a situation where his parents have remained unlawfully and have never been able to establish a substantive right to remain or, for that matter, the right to education for their children. One cannot entirely disregard the fact that a selective placement offered to a child with no right to remain must have the effect of depriving another child of the same place, albeit there will be cases where the public interest in removal will be outweighed by other criteria. It may be that, when the evidence is evaluated fully this will be such a case; the determination makes only a passing reference to such matters.

17. It is for this reason that I have decided not to re-make the decision now on the basis of the First-tier Tribunal Judge’s recital of the evidence. Instead, the re-making will take place in the Upper Tribunal after a detailed re-examination of the evidence.

DECISION ON ERROR OF LAW

The Judge made an error on a point of law and I set aside the determination of the First-tier Tribunal.

ANDREW JORDAN
JUDGE OF THE UPPER TRIBUNAL
3 February 2017