Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20727/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 21st February 2017
On 22nd February 2017

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

MS FOLUKE ADEOLA ADETONA
(ANONYMITY ORDER NOT MADE)
Respondent

Representation:
For the Appellant: Mr P Duffy, Senior Home Office Presenting Officer
For the Respondent: Mr M Adojutelegan, Solicitor Advocate instructed by Natado Solicitors

DECISION AND REASONS

Introduction

1. The claimant is a citizen of Nigeria born on 24th December 1971. She says she arrived in the UK on 4th March 1998, and claims to have remained in the UK since this time with the exception of three visits back to Nigeria between September and October 1998, June and September 1999 and November and December 2000. The Secretary of State accepts that the claimant has resided in the UK since 2005. The claimant has undoubtedly been unlawfully present in the UK, either since December 2000 or 2005. Her three children entered the UK in 2006 as visitors and have remained since that time. They are aged 22, 19 and 17 years (AO born on the 17th June 1999). The oldest child has limited leave to remain and the other two had indefinite leave to remain at the time of the hearing before the First-Tier Tribunal (they have since been naturalised as British citizens). The claimant maintains that she has lived in the UK with her British citizen partner and three children as a family unit since 2011.
2. The claimant made an application to remain in the UK on the basis of long residence which was refused, and which she appealed resulting in a decision of Judge of the First-tier Tribunal Kimnell dated 19th February 2013 dismissing her appeal.
3. The claimant applied to remain in the UK on the basis of her private life rights and this application was refused on 1st May 2014. Her appeal against this decision was dismissed by Judge of the First-tier Tribunal Wiseman in March 2015 but the Upper Tribunal found that there were errors of law in this decision, and set it aside and remitted the matter to the First-tier Tribunal to determine the appeal de novo.
4. On 30th April 2015 the claimant was convicted of being in possession of an identity document with intent as a result of working illegally and was sentenced to four months' imprisonment.
5. The claimant's appeal against the decision of the respondent to refuse her human rights application was remade and allowed by First-tier Tribunal Judge Adio in a determination promulgated on the 2nd September 2016.
6. Permission to appeal was granted by Designated Judge of the First-tier Tribunal Macdonald on 6th January 2017 on the basis that it was arguable that the First-tier judge had erred in law in failing to fully apply R on the application of MA (Pakistan) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705.
7. The matter came before me to determine whether the First-tier Tribunal had erred in law
Submissions - Error of Law
8. The Secretary of State's grounds of appeal state that the appeal was allowed because in accordance with s.117B(6) of the Nationality, Immigration and Asylum Act 2002 it was not found to be reasonable to expect the claimant's 17 year old child to leave the UK as that child had indefinite leave to remain, his father lives in the UK and he had been resident here since 2006. In accordance with MA (Pakistan) the First-tier Tribunal ought to have conducted a balancing exercise placing the poor immigration history and criminal conduct of the claimant in the balance when deciding if it was reasonable to expect the claimant's son to leave the UK, but this was not done by the First-tier Tribunal.
9. Further the First-tier Tribunal is said to err in law because the credibility findings fail to take into account the fact that the claimant has a conviction for an offence of dishonesty and gave a different account to the Tribunal on this occasion to that given at the hearing in 2013, when she said she had no family in the UK, where as in evidence on this occasion she said she and her children had lived in the UK since 2006. This was not a ground which Mr Duffy pursued before me in oral submissions however.
10. In a Rule 24 notice and oral submissions the claimant states that the credibility findings of the First-tier Tribunal were reasonably open to that Tribunal and thus any failure to give reasons is not a material error of law, see Shizad (sufficiency of reasons: set aside) Afghanistan [2013] UKUT 85. Further the claimant asserts that First-tier Tribunal did conduct a balancing exercise including reference to the claimants' immigration history and conviction, and this can be seen at paragraphs 19 and 17 of the decision.
11. I indicated after submissions that I found that the First-tier Tribunal had erred in law for the reasons set out below, and that therefore the decision of that Tribunal must be set aside. Mr Adojutelegan asked that some further evidence be admitted which consisted of the British citizen passports of the claimant's youngest two children, including the child, AO, who is still a minor. Mr Duffy did not object to the admission of this new evidence, and I agreed to admit it as it was clearly relevant and not previously available. The parties were given half an hour to prepare for the remaking hearing, which it was agreed only required submissions. At the end of these submissions I reserved my determination.
Conclusions - Error of Law
12. The First-tier Tribunal agreed with the submission of both parties that there is no possible grounds for the claimant to succeed under the Immigration Rules due to her criminal conviction and so it was simply outside of the Immigration Rules on Article 8 ECHR grounds that the appeal had to be heard, see paragraph 6 of the decision.
13. The First-tier Tribunal correctly starts the findings of fact section at paragraph 18 by noting the relevance of the previously decision of the First-tier Tribunal dated February 2013, and the impact of this previous decision in accordance with the principles in Devaseelan. The judge then finds, at paragraph 19, that given that previous decision it is correct to find that the claimant has had private life in the UK since 2005, and not earlier, but that overall the evidence indicates that since 2011 she has lived in this country in a household with her partner and children. This was a finding that the First-tier Tribunal were rationally able to reach on the evidence before them which includes documentary evidence from schools. The First-tier Tribunal therefore properly found the claimant had both private and family life in the UK with which a decision to remove would interfere.
14. The First-tier Tribunal then looked at the issue of the proportionality of that removal with reference to s.117B of the Nationality, Immigration and Asylum Act 2002, noting that the maintenance of effective immigration control is in the public interest, see paragraph 20 of the decision.
15. The focus is then correctly on s.117B(6) of the 2002 Act, see paragraph 21 of the decision. The First-tier Tribunal finds that the claimant has a genuine and subsisting parental relationship with her son AO, who is a minor, and that it would not be reasonable to expect him to leave the UK as he has lived in the UK for ten years, has his siblings and father in the UK and has indefinite leave to remain himself.
16. I find it is correctly contended for the Secretary of State that no balancing exercise takes place, with the claimant's criminal conviction and lack of immigration status being put in the balance, when considering whether it is reasonable to expect the claimant's minor son to leave the UK. The approach of the First-tier Tribunal is clearly therefore not in accordance with the guidance of the Court of Appeal as set out in MA (Pakistan). As such I find that the First-tier Tribunal erred in law in not conducting a proportionality exercise on all material evidence to determine whether AO could be reasonably expected to leave the UK, and that therefore the decision must be remade.
Submissions - Remaking
17. Mr Duffy relied upon the refusal letter from July 2014, although he accepted that the letter was now rather out of date. The appeal was being advanced only on Article 8 ECHR grounds outside of the Immigration Rules relying upon s.117B(6) of the 2002 Act. This was because the claimant's conviction makes her "unsuitable" under the Immigration Rules. Mr Duffy accepts that the claimant speaks English and is financially self-sufficient, but submits that these matters are only neutral and do not advance her case.
18. Mr Duffy argues that the claimant's criminal conviction and unlawful presence in the UK mean that the proportionality balance tips in favour of the Secretary of State, and makes it reasonable to expect the claimant's minor son to leave the UK. Mr Duffy accepts that the claimant's son is a British citizen who has lived in the UK since 2006, when he was 7 years old, but says that his ties to the claimant are not as strong as would normally be the case and that this further makes it reasonable to expect him to leave the UK. The claimant left him as a young baby in Nigeria with her mother and returned to the UK shortly after his birth, only returning for another short visit when he was a year old. When he entered the UK age 7 years he did not live with the claimant but with his aunt and then his father until the family were reunited in 2011, when the claimant was 11 or 12 years old. The key period in his development between 0 and 11 years was therefore spent without the claimant, and since that time the claimant's son should be seen as a nascent adult with greater bonds with society than with his family. It would further be reasonable to expect the claimant's son to leave the UK to be with her if he wished because he is at an age when he is almost adult, and can come and go easily between the UK and Nigeria if she relocates there as he has a British passport.
19. Mr Duffy also argues, in the alternative, that in fact the test at s.117B(6) of the 2002 Act is not relevant in this case because at s.117B(6)(b) the word "expect" is used with respect to the child, and thus the provision only allows a parent to stay where there is the possibility that a child could also be expected to leave. As the claimant's minor son is not expected to leave, as he is a British citizen and given all his circumstances, this is not a provision the claimant can invoke to support her case. Mr Duffy accepted that there is no authority supporting this interpretation of the s.117B(6) of the 2002 Act.
20. Mr Adojutelegan submitted that the claimant had kept a strong relationship with her youngest child, AO, who is still a minor, despite not living with him, until 2011 because it was clear from her statement she had only not lived with her children and sister from 2006 because this was not possible in terms of the accommodation. She was clearly having contact with all the children from the point of their arrival in 2006, and the school documents support this. This is not a case where the claimant had lost contact with her children: they had been in her family's care and then her partner's care throughout, and she, her partner and all three children had lived as a solid family unit for the past six years (since 2011).
21. Mr Adojutelegan submitted that it was not reasonable to expect AO to leave the UK because he had lived in the UK since the age of 7 years, which was more than half his life; because he is a British citizen; because he is about to take his A level examinations and has an offer to study economics at the University of Birmingham; because he plays football for London in international competitions and has close relationships with his coaches and fellow team members; because he has an extensive network of friends in this country; because he also lives here within one home with the claimant, his two brothers and father who are all lawfully resident (and one brother and his father are also British citizens); and because the family have their home here and his father has his work here, and thus he is well accommodated and financially supported in this country. It is contended that the claimant's unlawful presence and criminal conviction, whilst unfortunate, do not make it reasonable to expect AO to leave the UK in the context of these extensive ties particularly as the conviction is relatively minor and does not qualify the claimant to be classified as a foreign criminal.
Conclusions - Remaking
22. This appeal is being remade on the basis that the claimant cannot succeed under the Immigration Rules, but that it is appropriate to look at the matter outside of those Rules due to the presence in the UK of the claimant's nuclear family (partner and three children) which includes a minor child, AO, born on 17th June 1999.
23. The claimant seeks to rely upon s.117B(6) of the 2002 Act to succeed in this appeal. This provision means that her removal is not in the public interests if she can fulfil the conditions that she has a genuine and subsisting parental relationship with a qualifying child, and it is not reasonable to expect that child to leave the United Kingdom.
24. It is not contested that the claimant has a genuine and subsisting parental relationship with AO, being his biological mother, and I find that she has lived with him continually since 2011 in the family home with her partner (his father) and her two other sons (his brothers). The finding of the cohabitation as a family is preserved from the decision of the First-tier Tribunal but is also supported by the documentary evidence as well as the witness evidence from the claimant and her family. It is not contested that AO is a qualifying child: he is now a British citizen and has also lived in the UK since November 2006, and thus for a period of over ten years. The documentary evidence from his schools clearly shows that he commenced his UK education at Christ Church School in the UK in January 2007; then went to Forest Hill secondary school where he completed GCSEs; and now is studying for A levels at Christ the King Sixth Form College.
25. Mr Duffy has sought to argue that the final requirement of s.117B(6) of the 2002 Act that: "it would not be unreasonable to expect the child to leave the United Kingdom" means that the provision is only activated if there is an expectation that a child would leave the UK, and that the Secretary of State has no such expectation in AO's case. I do not accept that this is a correct construction of the provision. The provision clearly applies to a "qualifying child". Qualifying child is defined in s.117D of the 2002 Act as a British citizen or a child who has lived continuously in the UK for seven years. No British citizen child is expected to leave the UK, and so the provision would make no sense if interpreted in this way.
26. It is therefore clearly open to the claimant to argue that she can succeed in her Article 8 ECHR appeal by showing that she can meet all of the requirements of s.117B(6) of the 2002 Act, including that it would be unreasonable for AO to be expected to leave the UK.
27. The assessment of whether it would be "reasonable" to expect a qualifying child to leave, as is set out in MA (Pakistan), is a proportionality exercise whereby the best interests of the child are weighed as a primary consideration together with other relevant factors such as the ability of the claimant to speak English and be financially self-supporting, any criminal record and adverse immigration history. As stated in MA(Pakistan) at paragraph 46 of the judgement the fact of a seven plus year residence must, in this process, be given "significant weight", and as per the Secretary of State's Immigration Directorate Instructions there would need to be "strong reasons" for refusing leave. Further it is likely to be "highly disruptive" to the child's social, cultural and educational links to require him or her to leave after a seven plus period of residence, and that "disruption becomes more serious as they get older".
28. In this case I find that it is overwhelmingly in the best interests of OA to remain in this country. He is now 17 years old and has lived in the UK since he was 7 years old, for over ten years, a period which is more than half of his life; he is a British citizen; he is at a critical stage of his education when he is taking his A level examinations having done some of his primary and all of his secondary education in this country; he has the normal close ties with friends in the UK but also has additional ties with team mates and coaches in the field of football in which he excels playing for a team representing London called AC Paulista; he has no close family or friendship ties with his country of origin, Nigeria, his maternal grandparents having passed away; he has his entire nuclear family in the UK and all of that family except the claimant are lawfully resident - his father and one brother having the right to reside indefinitely as British citizens; and he lives in a comfortable rented home together with all of his nuclear family members where he is financially supported by his father who is in employment.
29. I do not find the strength of OA's best interests to remain in the UK to be diminished by the fact that for the first 11 years of his life his mother was not his day to day carer (but rather that this was firstly his maternal grandmother, then his maternal aunt and then his father) or that his mother suffered from depression during some of this time. I am concerned with the bonds he has at the current time which are undoubtedly very close with his mother, as he describes in his own letter dated 7th July 2016, and may perhaps even have been made all the more intense by these earlier difficulties.
30. As Mr Duffy has submitted, the fact that the claimant speaks good English and can be seen as financially independent are neutral factors, about which it need simply be said that they do not count against her.
31. It does weigh against the claimant, in the consideration of the reasonableness of expecting OA to leave, that she has a criminal conviction for working without the right to do so using a friend's identity papers for which she was sentenced to four months in prison and that she has been unlawfully present for the entire period of residence in the UK. As Mr Adojutelegan submits the criminal conviction is not of the most serious nature: it does not involve any drugs or violence, she is not a persistent offender and has not been deemed to have caused "serious harm" and so is not classified as a "foreign criminal", under s.117D(2) of the 2002 Act. It is also clearly not an offence which the claimant could repeat were she allowed to stay as she would have work permission in her own right. Whilst giving weight to these issues I find when considering all the evidence in the round that there are no sufficiently "powerful reasons to the contrary" and that it would not therefore be reasonable to expect the claimant's minor son, OA, to leave the UK and thus that claimant is able to fulfil all the conditions of s.117B(6) of the 2002 Act, and in turn that the public interest does not require her removal.
32. As such I find that the claimant is entitled to succeed in her appeal on Article 8 ECHR grounds as her removal would be a disproportionate interference with her family life in the UK.

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 but preserved the factual findings which were not in dispute.

3. I re-make the decision in the appeal by allowing it on human rights grounds.

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