Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18508/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 22 February 2017
On 07 March 2017

Before

Upper Tribunal Judge Southern

Between

CHINONSO STANISLAUS EZENDUKA
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr C. Nwodika, of Moorehouse, solicitors.
For the Respondent: Mr K. Norton, Senior Home Office Presenting Officer

DECISION

1. The appellant, who is a citizen of Nigeria, arrived in the United Kingdom in 2009 and was admitted as a student with leave to remain that was subsequently extended but then curtailed so that it came to an end on 9 March 2015. On 12 March 2015 he applied for leave to remain on the basis of the private and family life he had established in the United Kingdom and upon rights protected by article 8 of the ECHR.

2. That application was refused by a decision made on 6 May 2015. For present purposes the following summary of the reasons for refusal will suffice.

3. The respondent first considered that the appellant could not succeed under the partner route because he was not married to his partner and had not produced evidence that he and his partner had lived in a relationship akin to marriage for at least two years. Therefore, as he did not meet the eligibility requirements of the immigration rules, EX.1 was not open to him. Nor did the respondent consider that the appellant could succeed under the parent route. He had a daughter, born on 21 December 2013, but the respondent concluded that he did not have sole parental responsibility for the child and the evidence did not establish that he played an active role in the child’s life. Therefore, he failed to qualify under the rules then in force. Nor did he qualify under the rules in respect of his private life as he had been in the United Kingdom for just six years and absent were the very significant obstacles to integration on return to Nigeria that were demanded by paragraph 276ADE of the rules, that being a country where he had lived for most of his life and where he cannot be said to have lost all his ties. Finally, the respondent looked to see if anything was disclosed that called for a grant of leave outside the rules to secure an outcome compatible with article 8 of the ECHR but could not find anything that did.

4. In reaching that conclusion, the respondent had particular regard to the fact that the appellant had a child, not yet 2 years old, and to her duty under section 55 Borders, Citizenship and Immigration Act 2009 to safeguard and protect the welfare of children in the United Kingdom. But the respondent said, again, that there was not sufficient evidence that the appellant played an active role in the child’s life and the appellant’s partner and child could maintain contact by other means while the appellant, if he wished to do so, applied for leave under the rules for entry clearance to return.

5. The grounds upon which the appellant appealed against that refusal were lengthy and advanced arguments that might be collected together under the following headings:

a. The application, if properly considered, was one that should have succeeded under the Immigration Rules;

b. The respondent failed adequately to consider the rights protected by article 8 of the ECH of the appellant and his partner and daughter, both of whom are British citizens;

c. The respondent failed properly to consider the best interests of the appellant’s child.

6. The grounds asserted that the appeal should succeed under the rules for the following reasons:

a. there were very significant obstacles to the appellant’s integration on return to Nigeria (para 276ADE(vi));

b. the appellant has a genuine and subsisting relationship with a partner who is a British citizen and there are insurmountable obstacles to family life continuing outside the United Kingdom (EX.1 (b));

c. the appellant has a genuine and subsisting parental relationship with a child who is a British citizen and it would not be reasonable to expect the child to leave the United Kingdom (EX.1(a));

7. In support of that submission, it was emphasised that both the appellant’s partner and their child are British citizens born in the United Kingdom and have not before visited Nigeria.

8. Next, the grounds set out lengthy submissions in support of the asserted infringement of rights protected by article 8 of the ECHR that would be brought about if the appellant were required to leave the United Kingdom. The grounds complained, specifically, that the respondent erred in limiting detailed assessment of the claim to an application of the immigration rules. It was said that, given the facts, this was a case that demanded proper consideration outside the rules. Reliance was placed upon the reported decision Izuazu (Article 8 – new rules) [2013] UKUT 45 (IAC):
1. In cases to which the new Immigration Rules introduced as from 9 July 2012 by HC 194 apply, judges should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. Where the claimant does not meet the requirements of the rules it will be necessary to go on to make an assessment of Article 8 applying the criteria established by law. The Upper Tribunal observation in MF (Article 8-new rules) Nigeria [2012] [2012] UKUT 00393 (IAC) to the same effect is endorsed.
2. The procedure adopted in relation to the introduction of the new Rules provided a weak form of Parliamentary scrutiny; Parliament has not altered the legal duty of the judge determining appeals to decide on proportionality for himself or herself.
3. There can be no presumption that the Rules will normally be conclusive of the Article 8 assessment or that a fact-sensitive inquiry is normally not needed. The more the new Rules restrict otherwise relevant and weighty considerations from being taken into account, the less regard will be had to them in the assessment of proportionality.
4. When considering whether a decision is in accordance with the law, it has been authoritatively established by the higher courts that the test to be applied is not exceptional circumstances or insurmountable obstacles.
5.The UKBA continues to accept that EU law prevents the state requiring an EU law citizen from leaving the United Kingdom, although contends with good reason, that this is to be distinguished from a case where an independent adult can choose between continued residence in the United Kingdom or continued cohabitation abroad.
9. Finally, the grounds set out submissions to the effect that the respondent had failed adequately to have regard to the best interest of the appellant’s child, reproducing the now familiar dicta of Lady Hale in ZH (Tanzania) v SSHD [2011 UKSC 4, at para 33:

“… In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother's appalling immigration history and the precariousness of her position when family life was created. But, as the Tribunal rightly pointed out, the children were not to be blamed for that…”

and of Lord Kerr at para 46:

“… This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child's best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result.”

10. That was the challenge pursued before the First-tier Tribunal. By a determination promulgated on 27 September 2016, First-tier Tribunal Judge Gibbs dismissed the appeal. In granting permission to appeal to the Upper Tribunal, First-tier Tribunal Judge Chohan said:

“In short, the grounds argue that the judge erred in law by finding that it would not be unreasonable for the appellant’s child, a British citizen, to leave the United Kingdom.

… Although the judge notes that the appellant’s child is a British citizen, however, it is open to argument that the judge may have given insufficient weight to that particular fact.”

In examining the challenge to the decision of Judge Gibbs, it is necessary to examine in some detail the reasoning that led the judge to her conclusions.

11. Having heard oral evidence from both the appellant and his partner, and having considered a not insubstantial bundle of documentary material, the judge found that the appellant and his partner had been living together since 2011 and the appellant did have a genuine and subsisting relationship with both his partner and their child. Therefore, as the appellant met the eligibility requirements, the judge posed for herself the two questions she had to address:

“The question for me therefore is whether Section EX.1. of Appendix FM is met? It is not disputed that the appellant is the father of a British child and is in a genuine and subsisting relationship with the mother. Would it be reasonable for the child to leave the UK and would the couple face insurmountable obstacles to family life continuing outside the UK?”

12. The judge answered both of those questions in the negative.

13. First, she considered the position of the appellant and his partner. Her conclusion that there were no insurmountable obstacles preventing them continuing family life together in Nigeria was built upon reasoning that was clear, cogent and legally sufficient. The appellant, who has been living in the United Kingdom for only a relatively brief period of his life, remains in contact with his father, a businessman in Nigeria who has in the past and plainly would in the future provide financial help if it were required. There was no reason to suppose that the appellant could not find employment with the family business in Nigeria.

14. The judge reminded herself that the appellant’s partner was a British citizen who had not previously visited Nigeria, but there was no language barrier and nothing to prevent her realising in Nigeria her present ambition to take a nursing course. The judge found that the appeal could not succeed on the basis of 276ADE or, in respect of the parents, EX.1.

15. In my judgment those conclusions are unassailable.

16. In considering the position of the child, the judge began, quite correctly, by reminding herself that the best interests of the child are a primary consideration. She said, again correctly, that those best interests were served by her remaining with both parents. She then observed that although the child was a British citizen this was not “a trump card”. She then directed herself in terms of the guidance given in the reported case of Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 197(IAC), setting this extract:
i)         As a starting point it is in the best interests of children to be with both their parents and if both parents are being removed from the United Kingdom then the starting point suggests that so should dependent children who form part of their household unless there are reasons to the contrary.
ii)       It is generally in the interests of children to have both stability and continuity of social and educational provision and the benefit of growing up in the cultural norms of the society to which they belong.
iii)     Lengthy residence in a country other than the state of origin can lead to development of social cultural and educational ties that it would be inappropriate to disrupt, in the absence of compelling reason to the contrary. What amounts to lengthy residence is not clear cut but past and present policies have identified seven years as a relevant period.
iv)     Apart from the terms of published policies and rules, the Tribunal notes that seven years from age four is likely to be more significant to a child that the first seven years of life. Very young children are focussed on their parents rather than their peers and are adaptable.
v)       Short periods of residence, particularly ones without leave or the reasonable expectation of leave to enter or remain, while claims are promptly considered, are unlikely to give rise to private life deserving of respect in the absence of exceptional factors. In any event, protection of the economic well-being of society amply justifies removal in such cases.
As Mr Nwodika emphasised in his oral submissions, that was not the best foundation for the reasoning that was to follow, because the two children in Azimi-Moayed, aged 14 and 4 years of age respectively, had been in the United Kingdom for just two months at the date of the appeal and neither parent had any form of leave to enter or remain.

17. Despite that, I am satisfied that the judge did not as a consequence fall into legal error. She had to determine the appeal on the basis of the evidence the parties chose to put before her. Her careful analysis of the evidence relating to the child is set out between paragraphs 15-19 of her judgement. The judge noted that the child was just three years old so that her primary focus was upon her parents and that she had “little cultural affiliation with the UK”. As English is an official language of Nigeria she would not lose that aspect of her identity as she grew older in Nigeria. Next, the judge pointed out that the child had not started school and she would have a supportive family as she adjusted to life in a new country. There was no real evidence of links with relatives in the United Kingdom outside the child’s immediate family unit. Her mother spoke of being close to her own family here but none of those relatives attended the hearing or provided letters of support. Links with any relatives in the United Kingdom could be maintained through visits and other forms of communication and, of course, the child would have contact with her paternal grandparents in Nigeria. Nor did the judge leave out of account the fact of her being a British citizen, as she made clear in observing:

“Although I acknowledge the importance of nationality I find, for the reasons given above, and taking into account (the child’s) age, that this in itself does not make it unreasonable for her to leave the UK.

I am not persuaded that, under three years of age the child would lose stability and continuity by moving with her parents to Nigeria, the country of her father, and where her paternal family live, despite the fact that she is a British citizen. I am satisfied that it is reasonable for her to leave the UK, and that her mother would not face insurmountable obstacles in doing so. I am therefore satisfied that the family can remain together in Nigeria.”

18. For those reasons, the appeal could not succeed under the immigration rules. Taken as a whole, that was an outcome properly informed by what was in the child’s best interests that was open to the judge on the evidence and no legal error is disclosed by the reasoning that led to that conclusion.

19. The judge dealt briefly with the article 8 claim outside the rules, saying:

“As I have given full consideration to the appellant’s family and private life, and the best interests of his daughter, under the immigration rules, I am not persuaded that in accordance with SS (Congo) [2015] EWCA 387, it is appropriate for me to consider article 8 ECHR outside of the immigration rules.”

That was because the judge concluded that there was no reasonably arguable case under article 8 that had not sufficiently been considered already under the substantive provisions of the rules. The approach urged in Izuazu, that there can be no presumption that the assessment under the rules will be conclusive of the article 8 claim has very recently been approved by the Supreme Court in MM (Lebanon) and ors v SSHD [2017] UKSC (see, for example, paragraph 59). Therefore, it would have been preferable for the judge to have carried out a separate assessment of the claim outside the rules, but given her findings and the reasoning set out that could not have led her to any different outcome. The high watermark of the appellant’s case advanced outside the framework of the immigration rues was that in striking the balance between the competing interest in play when determining the proportionality of the decision under challenge, the best interests of the child in this case tipped the balance in favour of the appellant being granted leave to remain, even though he could not meet the requirements of the rules. But the finding of the judge, correctly understood, was that the best interests of this child were served by her remaining with both parents but did not demand that that family life was enjoyed in the United Kingdom in circumstances where he father did not qualify for leave to remain. There were no issues raised concerning matters of the child’s health, education or material considerations relating to accommodation or financial support that would be available in Nigeria. There was nothing advanced before the judge to suggest that if family life were continued in Nigeria the result would be any impairment of the child’s health or development. Therefore, even if it was an error for the judge not to have carried out a full and separate assessment of the claim outside the immigration rules, in this particular case that error was not a material one.

Summary of decision:

(i) The Judge of the First-tier Tribunal made no material error of law error of law and the decision of the judge to dismiss the appeal shall stand

(ii) The appeal to the Upper Tribunal is dismissed.

Signed

Upper Tribunal Judge Southern

Date: 22 February 2017