Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18121/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke-on-Trent
Decision & Reasons Promulgated
On 2nd August 2016
On 2nd August 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

KOLAWOLE [S]
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: In person
For the Respondent: Mr G Harrison (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. This is an application to the Upper Tribunal by the Appellant against a judgment of the First-tier Tribunal promulgated on 12th November 2015 by First-tier Tribunal Judge Lever. The Appellant in this case is a citizen of Nigeria born on 1st July 1962.
2. The Appellant entered the United Kingdom as a visitor in March 2005. He then re-entered with his pregnant wife in February 2006 and they overstayed. In the intervening period they have had a total of four children. On 18th May 2009 the Appellant submitted an application for leave to remain outside the Immigration Rules. That application was refused in August 2009 without a right of appeal. The Appellant requested a reconsideration of that decision which was maintained. However, eventually the Secretary of State did look again at the application and issued another refusal, with a right of appeal, on 29th April 2015.
3. The appeal came before Judge Lever in October 2015 at Manchester and the Appellant gave evidence. He claimed to be financially dependent on family and friends in the UK, never having worked. In Nigeria he worked as a banker and his wife worked in telecommunications. His children had no health problems and the family all shared one room in the home of a friend who also had a five-year-old child. All four children were attending school and had received medical care.
4. The Judge at paragraph 14 of his decision found little credibility to the Appellant or the case he advanced. The Appellant raised a quasi asylum claim during the course of the appeal and although the Judge declined to deal with the asylum claim he did make factual findings adverse to the claim.
5. The Appellant claimed to have converted from Islam to Christianity which the Judge disbelieved, with reasons, finding that claim to be a recent invention by the Appellant. He did not accept that the Appellant had ever been Muslim. The Appellant had made inconsistent and contradictory claims in relation to his claim that the central difficulty was his father who had been an Imam; claiming elsewhere that his father had died in 2005, before the Appellant came to the UK. He also claimed to have no known relatives in Nigeria which again contradicted his claim to be at risk from his family.
6. In his consideration of the Article 8 claim the Judge proceeded straight to Article 8 outside the Immigration Rules, the Appellant being unable to bring himself within Appendix FM. He noted that he was required to consider section 117 of the Nationality, Immigration and Asylum Act 2002. In that regard he noted that none of the Appellant, his wife or children had status in the UK. The couple had chosen to have children but their family and private lives were against an unlawful background. The information before the First-tier Tribunal in relation to their private lives was very limited. There were some letters of support but nobody came to give evidence. The Judge did not believe that the Appellant had never worked during his time in the UK and it was highly unlikely that they had survived as a family of six with only help from friends. He found that the Appellant had sought to disguise the reality of his activities in the United Kingdom. He referred to the family's claimed involvement with the church but again no witnesses attended to support him in that claim.
7. The Judge noted that the Appellant had provided information regarding the children's progress at school, which in reality was the core of his case. He was seeking to remain in the UK on the basis that the best interests of the children were to remain in the UK and on that basis he and his wife should be able to remain also.
8. At paragraph 25 of the Decision and Reasons the judge noted that blame did not attach to the children for having developed a private life while in the UK unlawfully. He noted that education is compulsory in the UK but expressed concern that this family, unlawfully in the UK, could access both education and health care without any right to do so. He noted the children had no learning difficulties or health problems. He noted that was nothing to suggest that the children did not possess the innate flexibility and adaptability that many children have. He noted that there are schools in Nigeria and that English is the common language in Nigeria. He found the children could adapt quickly to life and schooling within Nigeria.
9. The Judge then noted that the Appellant and his wife had both been in paid professional employment in Nigeria and could do so again. He did not accept that they had no links with Nigeria. Although it was claimed that the Appellant's wife has family in the UK, there was no evidence as to the level of contact with them and they had neither written letters of support nor attended to give evidence. If in truth there was any financial support from friends or family members there was nothing to prevent that continuing once the family returned to Nigeria while the Appellant and his wife resettled and obtained employment. There was no evidence that the children had any relationship with other family members outside the immediate family.
10. At paragraph 27 the Judge found that the children's best interests were to remain with their parents, to become familiar with and absorb the culture, lifestyle and attitudes of their home country. This, he said, was something that in his view it would be wrong to deny them. He found that they will be able to continue their education without difficulty and have the security of being in their home country where both they and their parents have the security of status and nationality.
11. The Appellant sought permission to appeal which was granted by a Judge of the First-tier Tribunal who felt it arguable that the Judge had failed to give adequate consideration to the children given that the eldest child had lived continuously in the UK for more than seven years and there had been no specific consideration of the children's best interests.
12. The grounds also refer to paragraph 276 ADE of the Immigration Rules.
13. The Appellant, before me, confirmed that his appeal to the Upper Tribunal was indeed based on the Judge's treatment of the children and the eldest child in particular, who was now 10 years of age.
14. The reference in the grounds of paragraph 276 ADE and the failure of the Judge to consider it being an error of law is misconceived. Paragraph 276 ADE requires a child to have resided in the UK for a continuous period of seven years at the date of the application. The application in this case was in 2009, when he had only been in the United Kingdom for three years. Paragraph 276 ADE therefore had no application and it was not an error of law therefore not to consider it.
15. The Judge has considered the best interests of the children specifically and found that their best interests lie in returning to Nigeria, the country of their nationality, with their parents. They are entitled to live in the country of their nationality in the same way that British children are entitled to live in the UK. The Judge noted the children had no difficulties which would make resettling unreasonable. Further, while children cannot be punished for the misdemeanours of their parents, when considering whether it is reasonable to expect them to leave the UK all factors are relevant - including their parents' immigration history.
16. The Decision and Reasons of the First-tier Tribunal does not contain a material error of law and I uphold it.
Notice of Decision

The appeal is dismissed.

No anonymity direction having been requested none is made.

Signed Date 2nd August 2016

Upper Tribunal Judge Martin