Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/19642/2015
IA/20637/2015
IA/20539/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 November 2016
On 11 January 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

Secretary of State for the Home Department
Appellant
and

ABISOLA SOTIN-ABRAHAM
OA
NA
(ANONYMITY DIRECTION MADE IN RELATION TO SECOND AND THRID RESPONDENTs ONLY)
Respondents

Representation:
For the Appellants: Mr S Kotas, Home Office Presenting Officer
For the Respondents: Ms A Oji, Counsel instructed by Nathan Aaron Solicitors

DECISION AND REASONS

1. The respondents (hereafter the claimants) are citizens of Nigeria. On 5 May 2016 First-tier Tribunal (FtT) Judge Swinnerton allowed their appeals against decisions made by the appellant (hereafter the Secretary of State or SSHD) refusing them leave to remain on Article 8 grounds. On 27 October Upper Tribunal Judge (UTJ) Blum set aside the FtT Judge's decision for error of law. He held that she had failed to take into account relevant considerations in concluding that it was not reasonable for the second claimant to return to Nigeria and that she had reached conclusions not open to her on the evidence before her. At [16] and [17] he acquiesced in an application made to adjourn to enable further evidence to be provided in respect of the second claimant and the impact of the proposed removal on him. He also recorded at [17] that:

"[T]he primary findings of fact made by the First-tier Tribunal judge were not challenged by the [Secretary of State] and those core factual findings stand. The legal inferences drawn from those factual findings by the First-tier Tribunal do not stand."

2. At the resumed hearing before me Ms Oji on behalf of the claimants highlighted the further evidence made available regarding the third claimant who is now 10 years old. She submitted that these showed that he had established his life in the UK and because of his move from London to Liverpool now had friends in both cities. He is actively involved in school life. He has spent his whole life in the UK and has a legitimate claim to being able to stay on the basis of ten years' residence.

3. Ms Oji submitted that the immigration status of the parents, the first two claimants, could not be held against the minor claimants. Because the third claimant had been in the UK for over seven years, there had to be strong reasons to remove him and his family. The family had not had recourse to public funds. On a proper consideration of case law principles including those set out in EV (Philippines) the balance of factors to be considered fell in favour of him being entitled to succeed under the Rules and the other claimants to succeed in line. Mr Kotas for the SSHD said he accepted that the third claimant's best interests may be in remaining in the UK, but the reasonableness of the question of him being expected to return to Nigeria had to be considered in the context that he would be removed together with his family members as a unit, that the claimants had family connections in Nigeria and Nigeria was an English-speaking country with adequate educational facilities.

4. On the basis of the preserved findings of fact, the claimants' basic particulars are as follows. The first claimant came to the UK in 2004. The first claimant met the man who became father of her children in 2005. In February and November 2013 the SSHD refused her applications to remain as a dependent spouse. Following separation in 2004 she does not have any contact with him. He no longer has leave to remain in the UK. The first claimant has worked for various periods of time since being in the UK and last worked in 2008. Friends and members of the church have been supporting her financially. She moved to Liverpool in July 2015. The second and third claimants are aged 10 and 5 respectively. The second claimant attended primary schools in London obtaining very good school reports. He is presently attending a primary school in Liverpool as is his younger brother, the third claimant.

5. The second claimant suffers from asthma, although it is not a serious medical problem. The third claimant also gained good school reports from his first primary school in London, being described as a superb role model for the rest of the class.

6. As regards the claimant's family connections in Nigeria, the first claimant maintains contact with her mother and siblings there and the two children have family connections in Nigeria through the first claimant. However, the first claimant has not visited Nigeria since 2004 and the children have never visited there.

7. I observe first of all that as a result of UTJ Blum's directions the claimants have been afforded adequate opportunity to produce further evidence particularly as regards the best interests of the children and the documentation produced in response includes a handwritten letter from the second claimant outlining his feelings regarding the appeals. He states, inter alia, that "[l]iving in Nigeria will cause me to losing all my friends and loved ones". He also describes achievements made in school by him and his brother.

8. The decision I re-make is to dismiss the claimants' appeals. I have to consider the appeals of all three claimants but it is common ground that their strongest argument relies on the position of the second claimant. As regards the first claimant, it is manifest that she cannot meet the requirements of the Immigration Rules. She has remained in the UK as an overstayer since 2005 and has chosen not to leave the UK even after her applications for leave to remain as a dependent spouse were refused. She met her husband when her immigration status was precarious and little weight can be attached to her own private life ties in the UK, although it is fair to say she has a history of working and it is not contended by the SSHD that she has been dependent on public funds.

9. It is common ground that the second claimant fulfils the requirements of para 276ADE(i)(iii) that he be under the age of 18 and has lived in the UK for at least seven years. What is in dispute is whether he can meet the further requirement that it is unreasonable to expect him to leave the UK. In respect of the very similar provision contained in s117B(6) it is clear that the second claimant is a qualifying child by virtue of his being in the UK for at least seven years. Here too, however, there is a requirement of reasonableness of departure from the UK.

10. As regards the requirement of reasonableness, there is recent guidance furnished by the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 377. In [46]-[47] Elias LJ stated that:

"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 interests 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. The concept of 'best interests' is after all a well established one. Even where the child's best interests are to stay, it may still be not unreasonable to require the child to leave. That will depend upon a careful analysis of the nature and extent of the links in the UK and in the country where it is proposed he should return. What could not be considered, however, would be the conduct and immigration history of the parents."
11. At [48] Elias LJ cited with approval the guidance given in EV (Philippines) as to how a tribunal should apply the proportionality test where wider public interests are in play. He then commented:

"49. Although this was not in fact a seven year case, on the wider construction of section 117B(6), the same principles would apply in such a case. However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child's best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary."

12. I derive from the above guidance the following. The fact that the second claimant has been in the UK for seven years needs to be given very significant weight and that my starting point should be that leave should be granted unless there are powerful reasons to the contrary. In my judgment there are powerful reasons to the contrary.

13. In the first place an essential element to the child's best interests is to reside with his sole parent, the first claimant, and she has ho basis of stay in the UK.

14. In the second place, the claimant and his family would be returning to their country of citizenship in which they have family ties. Relocation would re-unite the claimants with their extended maternal family.

15. Third, although the second claimant has been in the UK for eight years and has progressed extremely well in his primary school education, the country to which he would return (Nigeria) is one that has an adequate educational system and has English as its national language. The same can be said of the third claimant.

16. Fourth, although it is clear that the claimant and his brother have integrated extremely well into the UK educational system, they are still of primary school age and the ties they have formed during their school life are less developed than would be the case if they were in their teens. For them the centre of their life is clearly their own family life with their mother.

17 Fifth, whilst it is clear from the evidence that they identify, as English, it is not suggested that their parents have brought them up in ignorance of Nigerian culture and tradition and the financial support the first claimant has received from friends and community members is not said to come primarily from outside the Nigerian community.

18. Sixth, the second claimant has no significant health difficulties.

19. These are the principal considerations that arise in the context of assessing the second claimant's best interests and their effect is that although his best interests are on balance to remain in the UK there are several factors indicative that his best interests will not be adversely affected by return to Nigeria, e.g. in terms of having the potential to develop family ties with members of the extended family there.

20. In it clear from MA (Pakistan) that when moving on to conduct the wider proportionality assessment, I have also to factor in the poor immigration history of the first claimant and her husband neither of whom are in the UK with valid leave. As already noted, the first claimant has been here unlawfully since 2004 and entered into her marriage when her immigration status was precarious. She has remained in the UK even after being required to leave following refusal of application as a dependent spouse in 2013. The period of her overstay is longer than the eight years of residency by her child on which she seeks to rely. Although the second claimant is not to blame for the immigration misconduct of his mother, it remains the case that neither he nor his brother has ever had leave to remain. In such circumstances I consider that strong weight has to be given to the need to maintain immigration control.

21. Considering the evidence as a whole and having regard to the factors relevant to the best interests of the child identified in EV (Philippines) [2014] EWCA Civ 874 and to the overall proportionality assessment I am required to make in the context of assessing reasonableness of return, I conclude that even attaching strong weight to the fact that the second claimant has been in the UK for eight years, the preponderance of considerations point to a finding that it would be reasonable to expect the second claimant to return.

22. My finding as regards the position of the second claimant under para 276ADE(i)(iv) have obvious consequences for the ability of the first claimant to succeed under para EX.1(a)(ii) and the third claimant to succeed under para 276ADE. It also has obvious consequences for the consideration of the Article 8 circumstances of the three claimants outside of the Immigration Rules. The fact that none meet the requirements of the Rules is a relevant factor when assessing the public interest in their case. For the same reasons I have given for finding that it would not be unreasonable to expect the claimants to return as a family unit to Nigeria, I conclude that it is not disproportionate for the respondent to refuse them leave to remain and to direct their removal to Nigeria.

For the above reasons:-

The FfT judge has already been found by UTJ Blum to have erred in law and her decision has been set aside.

The decision I re-make is to dismiss the appeals of all three claimants.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 made in respect of second and third respondents only:-

Unless and until a Tribunal or court directs otherwise, the two minor appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them. This direction applies both to the two minor respondents and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Dr H H Storey
Judge of the Upper Tribunal