Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/19719/2015
IA/00383/2016
IA/00384/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21st February 2017
On 21st February 2017

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

MUINAT MUHAMMED (1)
FARUQ MUHUMMED (2)
BEWAJI MUHAMMED (3)
(ANONYMITY ORDER NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: None
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The appellants are citizens of Nigeria. The first appellant was born on 15th July 1982 and is the mother of the second and third appellants who were born on 30th December 2006 and 10th February 2009 respectively. The first appellant arrived in the UK on 18th March 2006 to visit her husband who was present in the UK as a student with entry clearance. She varied her leave during that visit to remain as his dependent. Her two children were born in the UK in December 2006 and February 2009. She remained in the UK as a student dependent until 30th October 2011. At that point her husband returned to Nigeria but she and her children remained in the UK as overstayers. On the 6th February 2015 she and her children applied for leave to remain on Article 8 ECHR grounds with reference to the best interests of the children. The respondent refused the application on 24th April 2015. Their appeal against the decision was dismissed by First-tier Tribunal Judge M R Oliver in a determination promulgated on the 23rd August 2016.
2. Permission to appeal was granted by Designated First-tier Tribunal Judge Macdonald on 6th January 2017 on the basis that it was arguable that the First-tier judge had erred in law in failing to consider what was said by the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705. Permission to appeal is granted on all grounds.
3. The matter came before me to determine whether the First-tier Tribunal had erred in law
Submissions - Error of Law
4. The grounds of appeal argue firstly that the First-tier Tribunal failed to give regard to the best interests of the children. There was no reference to the time spent in the UK or the lives they had established here, and particularly to the fact that the second appellant had lived in the UK for more than seven years. Secondly it is argued that the First-tier Tribunal fails to give reasons for the dismissal of the appeal as what is said is vague and imprecise. Thirdly it is argued that there was a failure of the First-tier Tribunal to be guided by what was said by the Court of Appeal in MA (Pakistan), and thus to allow an appeal unless there were "strong reasons" to dismiss it in the light of a child having lived in the UK for seven years. There is a starting point that leave should be granted absent "powerful reasons to the contrary" in cases where a child has lived in the UK for seven years and this has not been acknowledged by the First-tier Tribunal.
5. The respondent argues in a Rule 24 notice that the decision of the First-tier Tribunal was entirely reasonable given that there was in fact no real evidence of the second appellant's private life ties to the UK as his mother did not provide a statement and did not give evidence-in-chief to the First-tier Tribunal. The conclusion that it would be reasonable for the second appellant to leave the UK was therefore properly and lawfully open to the First-tier Tribunal. However, at the hearing Mr Duffy conceded that the First-tier Tribunal had erred in law in the way described in the grant of permission by Judge Macdonald.
6. Both parties favoured the appeal being remitted to the First-tier Tribunal given the extent of fact finding which was required. I accepted that in the circumstances that this was appropriate. The first appellant was advised of the need to provide the First-tier Tribunal with a statement for the appeal hearing explaining the best interests of her two children (the second and third appellants) who have now both lived in the UK for more than seven years with reference to the specific circumstances they would face on return to Nigeria and a detailed description of all of their circumstances in the UK. I also noted that the second appellant may be entitled to register as a British citizen due to having been born in the UK and having lived in this country for the first ten years of his life.
Conclusions- Error of Law
7. I find that the First-tier Tribunal did not start from the proposition set out in MA (Pakistan) at paragraph 49 of that decision: "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 start point that leave should be granted unless there are powerful reasons to the contrary."
8. It was undoubtedly the case that the First-tier Tribunal were not assisted by the lack of a statement or evidence-in-chief however there was documentary material going to the second appellant's private life ties to the UK in the bundles before that Tribunal. For instance, there was material from his primary school; a letter from the Islamic Prayer Group to which he belongs in London; letters from two family friends; and representations from Ramfel (Refugee and Migrant Forum of Essex and London) on this issue. The First-tier Tribunal Judge also chose to asked questions from the first appellant to elicit the background to the application and her relationship with her husband (which had broken down) and information about the appellant's mother in Nigeria but did not explore with her what the second appellant's best interests were in relation to staying in the UK or return to Nigeria after one initial question, which was said to be met with a sigh. I find, in this context, that there were no lawfully adequate findings on the best interests of the second appellant, and that this amounts to an error of law.
9. In accordance with MA (Pakistan), weight could have been given to the poor immigration history of the first appellant in considering whether there were powerful reasons to the contrary meaning it was reasonable to expect the second appellant (who is a child who had at the time of application lived in the UK for more than seven years) to leave the UK, which, in turn, could have therefore led to the dismissal of the appeal. However, without establishing the starting point of the best interests of the second appellant the consideration of whether it would be reasonable to expect him to leave the UK, and thus whether he and the first appellant were entitled to remain under the Immigration Rules, was not lawfully conducted.

Decision:

1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

2. I set aside the decision of the First-tier Tribunal in its entirety.

3. I remit the appeal to the First-tier Tribunal for remaking.

Signed: Fiona Lindsley Date: 21st February 2017
Upper Tribunal Judge Lindsley