Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18361/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision and Reasons Promulgated
On 20 December 2016
On 03 January 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
GILBERT OLAMIYI OBIDIMEJI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Holt counsel instructed by Perera & Co Solicitors
For the Respondent: Mr C Bates Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. This is a resumed hearing after a hearing on 31 August 2016 when I set aside the decision of First-tier Tribunal Judge Davies who had dismissed his appeal against the decision of the Secretary of State dated 30 April 2015 to refuse to grant an application for leave to remain in the UK on the basis of his family and private life and to remove him from the United Kingdom.

Background
3. The Appellant was born on 25 August 1992 and is a national of Nigeria.
4. The Appellant entered the United Kingdom in 1999. He could produce no evidence of lawful entry and was served with a notice of illegal entry. He made a human right claim in 2013 which was refused. He made an application on 22 August 2014 which was considered by the Respondent under Appendix FM and Paragraph 276ADE. The application was also considered in relation to Article 8 on the basis of his relationship with Cherry Rafu and their 3 biological children and Ms Rafu's child by another male and his child by Caroline Okunuanne and no circumstances were found to warrant a grant of leave outside the Rules.
The Law
5. The burden of proof in this case is upon the Appellant and the standard of proof is upon the balance of probability.
6. The Appellant's appeal is pursuant to Section 82(1) (b) of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act') which provides that a person may appeal to the Tribunal where the Secretary of State has decided to refuse a human rights claim. S84 of the Act provides that an appeal under s82(1)(b) must be brought on the ground that a decision is unlawful under section 6 of the Human Rights Act 1998.
7. Section 117A (2) of the 2002 Act provides that where a Tribunal is required to determine whether a decision made under the Immigration Acts would be unlawful under section 6 of the Human Rights Act 1998 it must, in considering 'the public interest question', have regard in all cases to the considerations listed in section117B of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014). Section 117 (3) provides that the 'public interest question' means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
8. The S117B considerations are as follows:
"(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner,that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(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."

9. In relation to the granting of leave outside the Rules I remind myself of what was said in the Court of Appeal in SS Congo [2015] EWCA Civ 387 in paragraph 33:
"In our judgment, even though a test of exceptionality does not apply in every case falling within the scope of Appendix FM, it is accurate to say that the general position outside the sorts of special contexts referred to above is that compelling circumstances would need to be identified to support a claim for grant of LTR outside the new Rules in Appendix FM. In our view, that is a formulation which is not as strict as a test of exceptionality or a requirement of "very compelling reasons" (as referred to in MF (Nigeria) in the context of the Rules applicable to foreign criminals), but which gives appropriate weight to the focused consideration of public interest factors as finds expression in the Secretary of State's formulation of the new Rules in Appendix FM. It also reflects the formulation in Nagre at para. [29], which has been tested and has survived scrutiny in this court: see, e.g., Haleemudeen at [44], per Beatson LJ
10. The definition of "qualifying child" is found in section 117D:
"qualifying child" means a person who is under the age of 18 and who-
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more;"
11. I have taken into account the guidance given in R (on the application of MA (Pakistan) and Others) v UT (IAC) & Anor [2016] EWCA Civ 705 in relation to the issue of reasonableness in section 117B 6 of the 2002 Act.
12. In relation to those factors that have to be considered in assessing the issue of reasonableness at paragraph 45 it states:
"In my judgment, if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the "unduly harsh" concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6)?..
But the critical point is that section 117C(5) is in substance a free-standing provision in the same way as section 117B(6), and even so the court in MM (Uganda) held that wider public interest considerations must be taken into account when applying the "unduly harsh" criterion. It seems to me that it must be equally so with respect to the reasonableness criterion in section 117B(6). It would not be appropriate to distinguish that decision simply because I have reservations whether it is correct. Accordingly, in line with the approach in that case, I will analyse the appeals on the basis that the Secretary of State's submission on this point is correct and that the only significance of section 117B(6) is that where the seven year rule is satisfied, it is a factor of some weight leaning in favour of leave to remain being granted."

13. As to the relevance of the Respondents policy in relation to Appendix FM and children at paragraph 46-47 it states:
"46.Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled "Family Life (as a partner or parent) and Private Life: 10 Year Routes" in which it is expressly stated that once the seven years' residence requirement is satisfied, there need to be "strong reasons" for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view, they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment.
47.Even if we were applying the narrow reasonableness test where the focus is on the child alone, it would not in my view follow that leave must be granted whenever the child's best interests are in favour of remaining. I reject Mr Gill's submission that the best interest's assessment automatically resolves the reasonableness question. If Parliament had wanted the child's best interests to dictate the outcome of the leave application, it would have said so."

Evidence

14. On the file I had the Respondents bundle. I had a copy of the reason for refusal letter. There was a bundle of documents frm the Appellant. I was also provided with a copy of a family tree which confirmed the following in relation to the children in this case:
15. By Caroline Chinyere Okuwuanne a British Citizen the Appellant has a child Diamond Oluwagbenga Arinza Akinmolayan Obidimeji who was a British Citizen born on 4 July 2007.
16. By Cherry Rafu a Nigerian National who has limited leave to remain in the UK the Appellant has 3 children:
Gold Taiwo Akinmolayan Obidemeji born 15 April 2008. He has leave to remain until 15.3.2019.
Silver Kehinde Akinmolayan Obidemeji born 15.4.2008. He has leave to remain until 15.3.2019.
Samuel Idowu Williams Ayomilekan Akinmolayan Obidemeji born 12.11.2011. he has leave until 15.3.2019.
17. Ms Rafu has a child by another father: Comfort Oluwakemi Ogunleye born 9.5.2004 who is a British Citizen
Final Submissions
18. On behalf of the Respondent Mr Bates made the following submissions:
(a) He conceded that two of the children were qualifying children for the purpose of section 117B 6.
(b) He accepted that whilst he would normally argue that the best argument walls for four the appellant to return to Nigeria and reapply for entry clearance the fact that there were two children by different mothers in balance had shifted against it being appropriate for the appellant to return and reapply for entry clearance.
(c) He accepted that the application for entry clearance may amount to more than a temporary separation would he urged me to consider R (on the application of Chen) v SSHD (Appendix FM - Chikwamba - temporary separation - proportionality) IJR [2015] UKUT 00189 (IAC)..

19. On behalf of the Appellant Mr Holt made the following submissions:
(a) The appellant had genuine and subsisting relationships with multiple qualifying children.
(b) He argued that the Gold and Silver were qualifying children by virtue of having lived in the UK for more than seven years and that of comfort was a qualifying child because she was a British citizen.
(c) The Respondent accepted that it was unreasonable to expect these children to leave the UK and therefore no matter how little weight was given to the appellants private and family life and public interest did not require his removal.
(d) In relation to whether it would be reasonable to require the Appellant to be removed temporarily in order to make an entry clearance application Mr. Bates had conceded that this would not necessarily be a temporary separation in that the entry clearance application could drag on. The situation was complicated by the being multiple qualifying children and in this case the balance fell in favour of the Appellant.
Findings
20. On balance and taking the evidence as a whole, I have reached the following findings
21. The Appellant appeals the decision of the Respondent on the basis that the decision is unlawful under section 6 of the Human Rights Act 1998.
22. I have determined the issue on the basis of the questions posed by Lord Bingham in Razgar [2004] UKHL 27
Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private (or as the case may be) family life?
23. I am satisfied that the Appellant and Ms Rafu and their 3 biological children and her child by another male have a family life in the United Kingdom and this was not challenged by the Respondent. The him being in a relationship for nine years.

If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
24. I am satisfied that removal would have consequences of such gravity as potentially to engage the operation of Article 8.
If so, is such interference in accordance with the law?
25. I am satisfied that there is in place the legislative framework for the decision giving rise to the interference with Article 8 rights which is precise and accessible enough for the Appellant to regulate his conduct by reference to it.
If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others?
26. The interference does have legitimate aims since it is in pursuit of one of the legitimate aims set out in Article 8 (2) necessary in pursuit of the economic well being of the country through the maintenance of the requirements of a policy of immigration control. The state has the right to control the entry of non nationals into its territory and Article 8 does not mean that an individual can choose where she wishes to enjoy his private and family life.
If so, is such interference proportionate to the legitimate public end sought to be achieved?
27. In making the assessment I have also taken into account ZH (Tanzania) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC 4 where Lady Hale noted Article 3(1) of the UNCRC which states that "in all actions concerning children, whether undertaken by ? courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
28. Article 3 is now reflected in section 55 of the Borders, Citizenship and Immigration Act 2009 which provides that, in relation, among other things, to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions "are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom". Lady Hale stated that "any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be "in accordance with the law" for the purpose of article 8(2)". Although she noted that national authorities were expected to treat the best interests of a child as "a primary consideration", she added "Of course, despite the looseness with which these terms are sometimes used, "a primary consideration" is not the same as "the primary consideration", still less as "the paramount consideration".
29. I am satisfied that three of the children in this case are qualifying children for the purpose of s 117B 6 of the 2002 Act: Gold, Silver and Comfort. I am unable to make a finding in relation to Diamond as although he is a British citizen there is no reference to the nature of the relationship that he enjoys with the Appellant. Gold and Silver are qualifying children because it is accepted the Appellant has a genuine and subsisting relationship with them and they have both lived in the UK for more than 7 years continuously and Comfort because she is a British citizen. The starting point is that it is in the best interests of children to be brought up by their mother and father. In this case it would appear from the witness statement of Ms Rafu dated 8 October 2015 that the 3 qualifying children live with her enjoying very regular access to the Appellant who lives with his parents indeed the Appellant is described as their primary carer by Miss Rafu as she works in order to sustain the family. I am satisfied that it is in the best interests of children to continue to have the stability and continuity of the Appellant as part of their family life
30. The Respondents did not seek to suggest in this case that it was reasonable for the children to leave the UK given the length of time they have spent here, the fact that they had never been to Nigeria and presumably the complicating factor that Comfort is the child of another father who currently has leave to remain in the UK. It is suggested that this is a case where Mr Bates conceded that the Respondents view was that while it would not be reasonable to remove the Appellants permanently it would not be disproportionate to require him to return to Nigeria and make an entry clearance application on the basis of these relationships.
31. I have reminded myself on R (on the application of Chen) v SSHD (Appendix FM - Chikwamba - temporary separation - proportionality) IJR [2015] UKUT 00189 (IAC). However I am satisfied that the ratio of the case was that there may be cases in which there are insurmountable obstacles to family life being enjoyed outside the U.K. but where temporary separation to enable an individual to make an application for entry clearance may be disproportionate. In all cases, it will be for the individual to place before the Secretary of State evidence that such temporary separation will interfere disproportionately with protected rights. It will not be enough to rely solely upon the case-law concerning Chikwamba v SSHD [2008] UKHL 40. In this case, it was conceded by the Respondent that the separation would not be temporary. It is not challenged that Ms Rafu works while the Appellant cares for the children and the this facilitates her ability to work which could impact on her ability to meet the financial requirements of the Rules.
32. I accept that the Appellant has a very poor immigration history and his family and private life have been established while his status has been precarious. I also accept he has an appalling record for offences of drink driving although the last conviction would appear to be in 2012. It is a case however where the Respondent concedes that family life could not continue in Nigeria because of the complicating factor of children born from different relationships. Taking all of the evidence in this case into account but particularly the circumstances of the children I am persuaded, on balance, that given the public interest does not require the Appellants removal where he has a relationship with a qualifying children it does not in this case require his temporary removal for the purposes of applying for entry clearance.
Decision
33. The appeal is allowed.

Signed Date 2.1.2017
Deputy Upper Tribunal Judge Birrell