Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/17090/2015
ia/20078/2015
ia/20082/2015
IA/20086/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29th July 2016
On 22nd August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

Secretary of State for the Home Department
Appellant
and

m L
M J D O
C C O
O O
(Anonymity direction made)
Respondents

Representation:
For the Appellant: Mr S Walker, Senior Home Office Presenting Officer
For the Respondents: Mr J Dixon, Counsel instructed by the Bar Pro Bono Unit

DECISION AND REASONS
1. The Respondents, mother, father and two children who are citizens of Nigeria appealed against the decisions of the Secretary of State, dated 21st April 2014 to refuse leave to remain in the United Kingdom on the basis of family and private lives. Regard was had to Appendix FM and paragraph 276ADE of the Immigration Rules. The appeals were heard by Judge of the First-tier Tribunal Walker sitting at Hatton Cross on 21st January 2016. The appeals could not succeed under the Immigration Rules. There is no issue about that but the judge went on to consider the matter, having regard to the wider application of Article 6, taken together with Section 117B(6) of the Nationality, Immigration and Asylum Act 2002. Following the guidance in Razgar v Secretary of State for the Home Department [2004] UKHL 27 the appeals were allowed.
2. Not content with that decision by Notice dated 2nd February 2016 the Secretary of State made application for permission to appeal to this Tribunal. The grounds are lengthy but in short Mr Walker accepts that the essence of the grounds was that there was no sufficient basis, it was contended, for the judge to look outside the Immigration Rules and to the wider application of Article 8 ECHR.
3. On 24th June 2016 Judge of the First-tier Tribunal Ransley granted permission.
4. I have looked with care at the Decision and Reasons of Judge Walker. Insofar as it is suggested that there were no sufficient findings justifying looking to the wider application Article 8, and having regard to the guidance in SS (Congo) [2015] EWCA Civ 387, notwithstanding that which is set out at some length in the grounds, I come to the view that there is sufficient to be found within the decision.
5. There were found to be educational needs with respect to [M]. He is autistic and experiences all the problems and difficulties associated with it. That appears at paragraph 31 of the decision. Judge Walker was quite right to have regard to Section 55 of the Borders, Citizenship and Immigration Act 2009 because the interests of children are a primary consideration. At the time of the application made to the Secretary of State, [M] was not a qualifying child. He had been in the United Kingdom since birth in 2008 but had not quite "clocked up" seven years. At the time of the hearing the situation was somewhat different. The child, [M] had "clocked up" seven years and of course the judge was concerned with the situation as it was at the date of the hearing.
6. The proper approach to cases such as this was considered by the President, McCloskey J, in the case of PD & Others (Article 8 conjoined family claims) (Sri Lanka) [2016] UKUT 101. It is not necessary for me to quote passages from that guidance, the President has done that very well indeed and it is not for me to even seek to try and improve upon it, but insofar as the judge had established that there was sufficient basis to go outside the Rules, I am satisfied that it was open to her to do that.
7. I remind myself that when it comes to findings of fact (and this is what this is) the question for me is whether the judge acted in a manner which was perverse, irrational or against the weight of the evidence. Clearly this was a decision, as I have said, that was open to her. When one stands back from this decision focusing as the judge did on [M] she has followed the guidance in PD even though she may not have been aware of it.
8. There is, I accept, a distinction to be drawn from the case of PD and the facts in the instant case because in the case of PD the child was a qualifying child. However the distinction is small and in my view an insignificant difference on the facts of this case because by the time of the hearing, the child had, as I have said, now lived continuously in the United Kingdom for more than seven years; if any fresh application were to be made would have to be viewed through the prism of a qualifying child.
9. In all the circumstances, and I am grateful to Mr Walker for the brevity of his submissions in this matter and the realistic approach he has taken to this appeal notwithstanding the fact that he is not able to make a concession with respect to it, I find that the appeal falls to be dismissed. In those circumstances the decision of the First-tier Tribunal will stand.
10. Given the child and the medical condition I make an anonymity direction.

Notice of Decision

The appeal to the Upper Tribunal is dismissed. The decision of the First-tier Tribunal is affirmed.

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 him or any member of their 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 19 August 2016

Deputy Upper Tribunal Judge Zucker