Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/18327/2015
IA/18334/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 January 2017
On 16 March 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

D--- M--- A---
C--- T--- A---
(ANONYMITY DIRECTION MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr R Solomon, Counsel, instructed by Jein Solicitors
For the Respondent: Ms A Fijiwala, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the respondent. Breach of this order can be punished as a contempt of court. I make this order because the decision impacts on the welfare of a child who may be harmed by publicity.
2. The appellants appeal a decision of the First-tier Tribunal dismissing their appeals against a decision of the respondent on 27 April 2015 refusing them leave to remain on human rights grounds. In simple terms it is the appellants’ contention that in each case the judge wrongfully conflated consideration of their case under the Immigration Rules with consideration of their case under Article 8 of the European Convention on Human Rights and that, had he considered their human rights claim distinctly and separately, he at least may have come to a different conclusion. Permission was given on all grounds pleaded but particularly because the Upper Tribunal Judge granting permission was concerned that insufficient reasons might have been given for concluding that it would reasonable to expect the second appellant to leave the United Kingdom.
3. I begin by considering the First-tier Tribunal Judge’s decision.
4. The appellants are citizens of Nigeria. The first appellant is the mother of the second appellant. The mother was born in 1977 and the second appellant was born at the end of December in 2007 and so is now 9 years old. He was 8 years old when the First-tier Tribunal made its decision in April 2016.
5. The first appellant has lived in the United Kingdom since March 2006. It obviously follows from that that the second appellant was born in the United Kingdom. He has lived all of his life there. The first appellant said, and her evidence was accepted, that she has lost contact with the second appellant’s natural father. She believes that he is a citizen of Nigeria and is currently living in that country but she has nothing to do with him and there is no relationship between him and the second appellant.
6. The judge also accepted the first appellant’s evidence that she has married a British citizen but they parted in January 2014 having been married for only about sixteen months and there was no relationship between the second appellant and the first appellant’s husband.
7. The judge noted that there was no evidence that either appellant had any particular medical needs and that the second appellant seemed to be settled at school but also noted no evidence had been led to suggest that the second appellant could not benefit from a functioning education system in Nigeria and that both appellants could take advantage of the health system in that country if that became necessary.
8. The judge found it “clear” that it was in the second appellant’s best interests to remain with his mother. With help of the appellants’ representatives the judge considered the relevant Immigration Rules and in the case of the first appellant the only point of contention was whether she can meet the requirements of EX.1(a)(ii) of HC 395. If the first appellant comes within the scope of EX.1.(a)(ii) she would be exempted from the obligation to meet certain eligibility requirements as a parent. This would occur if “it would not be reasonable to expect the child to leave the UK”.
9. At paragraph 18 of his decision the judge decided that the first appellant could not take advantage of this exception because it would be reasonable to expect the second appellant to leave the United Kingdom. Perhaps significantly the judge said that he would give reasons “in relation to my consideration of the first appellant’s circumstances in the proportionality exercise under Article 8”. The judge then explained his finding that the first appellant could not benefit from paragraph 276ADE(1)(vi) which required the appellant to show “there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK”. The judge disbelieved the claim for international protection, relying particularly on the late disclosure of extremely serious allegations.
10. The judge found the first appellant to be an educated woman, who had successfully obtained a master’s degree in the United Kingdom and the judge was satisfied the first appellant had not shown that she came within the scope of the Rules in a way that allowed her to remain.
11. The judge then looked at the second appellant’s case under the Rules and particularly paragraph 276ADE(1)(iv) which applies to the advantage of a person under 18 years of age who has lived continuously in the United Kingdom for at least seven years and “it would not be reasonable to expect the applicant to leave the UK”. The judge found, as indicated above, that it would be reasonable to expect the second appellant to leave the United Kingdom.
12. At paragraph 28 of his decision the judge considered Article 8 and his findings were illuminated by his finding that neither appellant satisfied the requirements of the Rules.
13. The judge found the maintenance of effective immigration control to be in the public interest. He also found it in the public interest that those seeking to remain are financially independent and expressed himself dissatisfied with the evidence about financial dependence should they remain. Additionally he reminded himself of his obligations under Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 to give little weight to a person’s private life established when the immigration status was unlawful or precarious. The judge then reminded himself of Section 117B(6) and recognised that the second appellant is a qualifying child under the Act but repeated his finding that it would be reasonable to expect the second appellant to leave the United Kingdom with his mother.
14. The judge found that the first appellant could keep contact with her adult sister by the usual “modern methods of communication” and noted that the first appellant’s sister had visited Nigeria since coming to the United Kingdom. At paragraph 30 of his decision the judge said:
“Having carefully considered the totality of the evidence before me, I see no reason why the appellant should not be expected to return to Nigeria. They would be able to maintain contact with any relatives and acquaintances in the United Kingdom through modern methods of communication. The second appellant would have the benefit of the first appellant’s maternal love and support. The first appellant is an adult aged 38 and in good health. She would be returning to the country of her birth and citizenship, where she resided all of her life until coming to the United Kingdom at the age of 28. She would have been well aware that she had come to the United Kingdom for the purpose of study and that any future presence in the United Kingdom following completion of her studies was precarious. In all the circumstances, I can find nothing compelling in the appellants’ circumstances to warrant leave to remain being granted outside the Immigration Rules and I am satisfied that the respondent’s decision was proportionate in the maintenance of effective immigration control.”
15. The judge then dismissed the appeal.
16. He made an anonymity direction for the sake of the second appellant.
17. I deal first with the second ground supporting the application for permission to appeal. These are settled by Mr Solomon and ground 2 is in the following terms:
“In reaching his adverse credibility findings, the judge fails to take adequate account of and engage with the contents of the two character references supportive of the abusive father claim.”
18. I see no justification for that criticism. In what is a conspicuously careful determination the judge said at paragraph 4 that he had considered all the documentary evidence before him. This claim does not read as a convenient ruse but as a straightforward explanation of his decision. He is not required to mention every piece of evidence in detail. The statements do not confirm the first appellant’s claim to have been raped. I do however confirm the first appellant’s claim to have been abused by her father. The character reference by C--- E--- refers to “the abuse she experienced as a child”. It does not claim any first-hand knowledge of that abuse or give an indication about when she was first told that the first appellant claimed to have been the victim of abuse. That statement really does not assist.
19. The next statement is from T--- I---. She purports to give direct evidence of the appellant’s father hitting her. Whilst the judge’s description of the first appellant’s revelation of her claim to have been beaten and raped is accurate, he should have acknowledged that there was a statement before him purporting to confirm the claim of an abusive relationship (not the claim of being raped) based on direct observation whilst the appellant was still in Nigeria. The judge should have indicated why he found that evidence unreliable or, if he believed it, why he made the finding that he did.
20. However I do not see how a finding that the appellant had been beaten excessively by her father could have resulted in a finding that the appellant could not be expected to return to Nigeria now. All that he said about her education and intention to return remains valid. The first ground is in the following terms:
“The approach of the Tribunal is materially flawed in that the judge conflates his assessment of Article 8 under the Immigration Rules with Article 8 ECHR outside the Rules thus erroneously treating Appendix FM and paragraph 276ADE as determinative of and/or otherwise vitiating the proportionality assessment.”
21. With respect Mr Solomon’s ground has theoretical merit. Although the requirements of Section 117B must be followed by a judge because that is a clear statutory obligation, the judge must always be mindful to the possibility that circumstances might exist where applying the Act without regard to the Convention would give an unjust result. However, given that there is a degree of flexibility built into the terms of the Section, it is, unsurprisingly, the experience of the Tribunal, and the clear guidance of the higher courts, that it will be unusual for a case to succeed on a proper application of the law relating to Article 8 of the European Convention on Human Rights if it is dismissed properly under the Act or the Rules. That the judge did err by conflating the Rules does not mean that a material error has been established.
22. With respect to the First-tier Tribunal Judge there may be room to criticise his decision for not giving a fuller explanation for his finding that it was reasonable for the second appellant to leave the United Kingdom.
23. That said it has been made plain by the Court of Appeal in MA Pakistan and Others v SSHD [2016] EWCA Civ 705 that the best interests of the child do not determine the Article 8 balancing exercise whether conducted on its own or in the context of a statutory obligation. This is not a case where there is evidence of strong “private and family life” being developed by the second appellant personally. She is a child dependent on her mother. Undoubtedly (because it would be astonishing if this were not the case) there is some private and family life that does not involve her mother but there is no evidence that this is more than nominal.
24. Further there is no reason to conclude that the appellants would be returned to a life of penury in Nigeria. As has been said before it is accepted that the first appellant is an educated woman.
25. When all is said and done, although there may be room to offer theoretical criticism of the judge there is nothing before me that I can see justifying the judge reaching any other conclusion. His premise was that the best place for a small little girl is with her mother and as a general guide, absent clear contrary evidence, it is a position that is very hard to criticise. There is no contrary evidence and the judge has reached a conclusion open to him.
26. If I may say so, Mr Solomon pitched his case thoughtfully and realistically but although he made inroads the plain fact is that this is a decision open to the judge for the reasons given and I see no material error.
27. It follows that I dismiss the appeal.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 15 March 2017