Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: IA/20523/2014
IA/20522/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On November 16, 2015
On November 19, 2015

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

ms esther ihebirinacho ohuruogu
mr emmanuel ohuruogu
(NO ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
Appellant Mr Ikeh (Solicitor)
Respondent Mr Bramble (Home Office Presenting Officer)

DECISION AND REASONS
1. The appellants are citizens of Nigeria and are mother and son respectively. They entered the United Kingdom on July 9, 2005 as family visitors and overstayed. On August 31, 2012 they applied for leave to remain on the basis of family life but this was refused with no right of appeal. Following other proceedings the respondent reconsidered the application but still refused the applications on May 1, 2014. The appellants appealed these decisions on May 12, 2014 under section 82(1) of the Nationality, Immigration and Asylum Act 2002.
2. The appeal came before Judge of the First-tier Tribunal Butler on May 8, 2015 and he refused both appellants' appeals under the Rules and under ECHR legislation.
3. The appellants appealed those decisions and Judge of the First-tier Tribunal O'Garro found an error in law based on the fact the second-named appellant was over the age of eighteen at the date of hearing and had spent half his life in the United Kingdom and it was arguable the Tribunal should have given consideration to those facts and considered the appeal under paragraph 276ADE(1)(v) HC 395 as against paragraph 276ADE(1)(iv) HC 395.
4. The respondent opposed the error and filed a Rule 24 response dated September 15, 2015 in which she reminded the Tribunal the relevant date for paragraph 276ADE HC 395 was the date of application and not the date of hearing.
5. The matter was listed before me for legal arguments.
6. The First-tier Tribunal did not make an anonymity direction and pursuant to Rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008 I see no reason to make an order now.
SUBMISSIONS
7. Mr Ikey relied on his grounds of appeal and the permission for leave. He stated that the Tribunal had erred by not considering the appeal under paragraph 276ADE(1)(iv) because the decisions of LS (Gambia) [2005] UKIAT 00085 and MM (Article 8-family life-dependency) Zambia [2007] UKIAT 00040 along with Section 85(4) of the 2002 Act made clear that in in-country appeals the relevant date was the date of hearing. Alternatively, he submitted that the Tribunal's approach to article 8 was flawed.
8. Mr Bramble relied on Rule 24 response and submitted the grounds as argued had no merit. Paragraph 276ADE clearly stated that the requirements had to be met as at the date of application and the fact the position had changed since did not alter the starting point. As regards the free-standing article 8 claim he submitted the Tribunal had reached a decision that was open to it.
9. Following these submissions, I reserved my decision.
DISCUSSION
10. The appellant's appeal was brought on the pre-text that the Tribunal had applied the wrong Rule and Mr Ikey sought to persuade me that the date for considering whether the Rule was met was the date of hearing.
11. I reject this submission for the simple reason that the Rule specifically states that when considering an application under paragraph 276ADE the relevant date for qualification is the date of application.
12. The case law referred to by Mr Ikey was contained in the grant of permission but I fail to see how this assists in his argument that the relevant date is the date of hearing. These cases relate to the admission of evidence to support the case and neither has any relevance to this Rule as they pre-date the date when paragraph 276ADE was brought in. The cases refer to the admission of evidence and not the actual requirement of an Immigration Rule. So for instance if it is disputed the appellant was under the age of 18 years then evidence to prove his age could be adduced after the date of decision.
13. The Tribunal correctly identified the appellant was under the age of eighteen years when the application was submitted and had continuously lived in the United Kingdom as at the date of application (paragraph 276ADE(1)(iv)). In order for his appeal to have been considered under sub-section (v) the appellant had to show that at the date of application he was over the age of eighteen years and had spent at least half his life in the United Kingdom. As he could not do this the Tribunal applied the correct provision.
14. I find no merit in Mr Ikey's submissions that a later date (after the date of application) applied for the purposes of the Rules although I accept that for the purposes of article 8 ECHR the Tribunal had to consider the position at the date of hearing.
15. The Tribunal's consideration of article 8 is contained between paragraphs [56] and [69] of its decision. The Tribunal was clearly aware of how long he had been here (see paragraphs [1] and [3] for age and date of arrival) and that he was now 19 years of age at the date of hearing. The Tribunal also had regard to Section 117B of the 2002 Act and in particular the fact that no weight should be attached to private life when a person's immigration status was precarious or the person was here unlawfully. The Tribunal also had regard to the appellants' claims they had no family in Nigeria but made an adverse finding against the first-named appellant on this issue. In considering proportionality, the Tribunal considered the circumstances, including the fact he was now nineteen years of age.
16. The conclusion that article 8 was not engaged was clearly open to it. No error of law has been established in this appeal and I find there is no error in law.
DECISION
17. There is no error in law. I dismiss the appeals.

Signed: Dated:

Deputy Upper Tribunal Judge Alis

FEE AWARD
I make no fee award as I have dismissed the appeal.

Signed: Dated:

Deputy Upper Tribunal Judge Alis