Tribunal decisions

The decision

IAC-AH-LEM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20882/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 30 August 2016
On 19 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

MS. S A A
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M Syed, Legal representative
For the Respondent: Mrs R Pettersen, Home Office Presenting Officer

DECISION AND REASONS

Introduction

1. The appellant appeals to the Upper Tribunal ("UT") with the permission of First-tier Tribunal Judge Scott-Baker. On 17 February 2016 Judge of the First-tier Tribunal Wilson ("the Immigration Judge") dismissed the appellant's appeal against the decision of the respondent on 22 May 2015 to refuse the appellant leave to remain in the UK. On 27 July 2016 Judge Scott-Baker considered that there may have been a material error of law in the decision of the First-tier Tribunal (FTT) so that it disclosed a material error of law. Accordingly, she gave permission to appeal to the Upper Tribunal.

Background

2. The appellant is a Nigerian national born on 12 April 1981.

3. The appellant entered the UK illegally in October 2001 using a false passport. There is therefore no record of her entry into the UK. Under the alias Stella Ayobami Coker the appellant was served with a form IS151A on 26 August 2009. The appellant applied for leave to remain under the European Convention on Human Rights (ECHR) but that application was refused on 11 December 2009. On 22 October 2010 she applied for leave to remain a second time under the ECHR but this was also refused on 8 August 2011. On 11 December 2014 the appellant made a further application for leave to remain on the basis of private and family life. It was decided that the appellant did not qualify under the "parent route" (Appendix FM R-LTRPT 1.1(d)). In particular, the appellant had to show that she had "sole parental responsibility for (her) children, who lived with (her)". The appellant was unable to show this. However, it was accepted that she had a genuine and subsisting relationship with a child. It was not accepted that the "parent route" was met either. EX.1 was not met because the appellant had to show a "genuine and subsisting relationship with a child who is under the age of 18, is in the UK and is a British citizen or who has lived in the UK continuously for seven years and it would not be reasonable to expect the child to leave the UK". The respondent noted that the two youngest children had not lived in the UK continuously for at least seven years immediately preceding the date of the application. Her eldest child (Daniel) may have been living continuously in the UK since his birth in October 2006 but it was not considered unreasonable to expect him to leave the UK with the rest of the family as it was in the interests of the whole family unit to return to Nigeria. The application was refused under D-LTRPT.1.3 with reference to R-KTRPT.1.1(d).

4. As far as the appellant's private life was concerned, it was noted by the respondent that the requirements that must be met for an application following on or after 9 July 2012 were contained within paragraph 276ADE(1) of the Immigration Rules in particular, the appellant had to show that at the date of the application she had lived continuously in the UK for at least twenty years (discounting any period of imprisonment), or was under the age of 18 years and had lived continuously in the UK for at least seven years (discounting any period of imprisonment) and it would not be reasonable to expect the appellant to leave the UK. Ostensibly, the appellant must show that she is above 18 but under 25 but had spent at least half her life continuously in the UK or that she had lived continuously in the UK for at least twenty years but there would be "very significant obstacles to the applicant's integration into the country to which she would have to go if required to leave the UK".

5. The appellant had lived in the UK for thirteen years but it was not accepted that she had lived continuously in the UK for at least twenty years. She therefore failed to meet the requirements of paragraph 276ADE(1)(iii). Nor were subparagraphs (iv) or (v) engaged on the facts of this case. In order to meet the requirements of (vi) the applicant had to show "very significant obstacles to her integration into the country into which she had to go" but she had not established such obstacles. The appellant had spent the majority of her life in Nigeria, a country to which she had close ties.

6. The respondent had also considered whether there were any particular circumstances in the appellant's case which constituted "exceptional circumstances" which it was necessary for her to consider. This might warrant the grant of leave to remain in the UK outside the requirements of the Immigration Rules. The appellant had drawn to the respondent's attention that the appellant had stated that she had suffered violence over an inheritance dispute with the family of Olawale Adelusi's family. She claims that if she returned to Nigeria her deceased partner's family would attempt to find the appellant with a view to punishing her in the manner that her deceased partner's first wife and child had been treated (they had been murdered). Her deceased partner's family were of a different religion and did not approve of the relationship between the appellant and her deceased partner.

7. The respondent pointed out that no evidence had been supplied to the respondent to support the alleged fear on return but it was open to her to make an application for asylum. At the date of the decision (22 May 2015) she had not done so.

8. A number of additional points had been urged on the respondent in support of the claim that the appellant qualified for leave to remain in the UK on exceptional grounds that Article 8 of the ECHR was engaged in her case. In particular, it was suggested that the appellant had been the victim of domestic trafficking as a worker who had been forced to work for exceedingly long hours and not allowed to leave her accommodation and that the welfare of her children was a paramount concern, having regard to the provisions of Section 55 of the Borders, Citizenship and Immigration Act 2009 ("the 2009 Act"). The appellant had three children, all of whom were being educated in the UK. However, the respondent pointed out that Nigeria has a functioning education system which they would be able to utilise if the family returned there. English is the official language in Nigeria, a country to which the respondent maintains the appellant had close ties. The appellant also claimed to the respondent that she had relatives in the UK to whom she was close. However, the respondent considered that no adequate evidence had been supplied to merit the grant of leave outside the Immigration Rules on this or the other bases contended for. Furthermore, her continuing relationship with these individuals was not contingent on her remaining in the UK. The appellant also relied on the fact that her eldest child, Daniel, suffered from eczema and asthma. He required medication and the management of his conditions would be more difficult in Nigeria. Again, the respondent did not accept that these constituted exceptional circumstances The appellant could return as a family unit to Nigeria with Daniel and the other children and could utilise health service provision there rather than being dependent upon the National Health Service. The respondent considered Daniel's welfare, pointing out that he did not satisfy the requirements of the Rules and that, although he was under the age of 18 the respondent was not satisfied that he met the requirements of paragraph 276ADE (1). The same applied to the other children, Daniella, born 20 August 2008 or Destin, born 11 April 2010.

The Decision of the FTT

9. The Immigration Judge adopted a "two-stage approach", considering first whether the Rules were met and, if they were not, considering whether there were "arguably good grounds for granting leave to enter or remain outside them" on the basis that there were "compelling circumstances not recognised by (those Rules)". The Immigration Judge considered that a number of the claims made by the appellant were confusing or inconsistent, he concluded that she did have family in Nigeria and that the account of having been people trafficked had not been truthful. the children's welfare was a paramount consideration having regard to Section 55 of the 2009 Act and the case law quoted extensively by the Immigration Judge. However, the Immigration Judge considered that there was no need for the children to continue to be educated at the expense of the UK taxpayer. The respondent's view should be given "considerable weight". The appellant could successfully reintegrate into Nigerian society with her children. The Immigration Judge accepted that the interference with the appellants' human rights constituted a necessary interference in a democratic society in the interests of the wellbeing of the country and the protection of the rights and freedoms of others. The Immigration Judge did not have the slightest doubt that the appeal should be dismissed on all grounds argued.

The Grounds of Appeal

10. These are set out in a "cover letter" rather than included in the box C of the relevant form (IAFT-4) as should have been the case. They are dated 2 March 2016. The letter from the Taylor Partnership criticises the Immigration Judge for failing to adjourn the hearing to await the outcome of a forthcoming inquest into the appellant's spouse's alleged suicide whilst in detention. Secondly, the grounds set out in that letter criticise the Immigration Judge for identifying discrepancies in the appellant's oral evidence as compared with her earlier applications and other evidence. Immigration Judge Wilson is said to have carried out an inadequate assessment of the children's best interests for the purposes of Section 55 and having failed to explain how he feels the appellant and her children could make an application to re-enter the UK in the future. The effect of her exclusion would be to ban her from coming to the UK for twelve months. In any event, the appellant would be unlikely to obtain a visit visa for the foreseeable future. The Immigration Judge was also criticised for failing to appreciate the "traumatic period of the children's lives and for forcing them to leave the UK never being able to visit the grave of their father". The children only knew the UK as their home, had lost their father in difficult circumstances and would find it unsettling and detrimental to "all aspects of their lives" to remove to Nigeria. They should not be "penalised" for the actions of their parents.

Reasons for Permission to Appeal

11. The reasons for giving permission to appeal were set out in detail by Judge Scott-Baker on 27 July 2016. Having summarised the grounds set out above the Immigration Judge was found not to have been subject to legitimate criticism for failing to grant an adjournment. However, the Immigration Judge was criticised by Judge Scott-Baker for not making "discrete findings with reference to Section 117B (6) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") having regard to the case of AM (Malawi) [2015] UKUT 260 (IAC). What was required was a "rigorous balancing exercise with regard to the proportionality" of removal. The lack of critical appraisal gave rise to an arguable error of law which arguably undermined the finding that it was reasonable to expect Daniel and the other children to leave the UK. Daniel and the others would clearly lose the life which they had developed here which was a weighty factor. Accordingly, an error of law had been identified which required permission to be granted.

The Hearing

12. The hearing lasted approximately one hour. Both parties were represented. The appellant said he was not relying on any evidence from the inquest. Mr Syed said that there were no adequate reasons given for concluding that the children could safely return to Nigeria. I was referred to a bundle of cases and other material produced on the appellant's behalf including the case of JO [2014] UKUT 100517 (IAC). There was a statutory duty on the respondent to carry out an assessment. The Immigration Judge's assessment here was flawed. I was also referred to AM (Malawi) and I was urged to accept that the appellants should not be required to leave an environment where they were well looked after and have to return to all the uncertainty of a new country which they did not know. The children of the appellant had a father who had been detained at "the airport" where he is said to have "hung himself". It was clearly desirable for the children to be able to visit their father's grave but unfortunately they would not even be given permission to do so. It was argued that they would not settle in their new (African) environment.

13. The respondent relied on the Rule 24 response filed on his client's behalf.

14. I was invited to have regard to that response. This states that the Immigration Judge plainly considered the best interests of the children as a primary consideration at paragraphs 14 - 23 of his decision. He also cited several cases, including EV (Philippines) [2014] EWCA Civ 874. The appellant was said to have seriously lacked credibility and the claim over the need for her and her children to visit the grave of her late partner was not accepted by the Immigration Judge. He found (at paragraph 27 of his decision) that she was not able to visit the grave as frequently as she claimed but could do so in the future. The respondent noted that the appellant had been granted permission to appeal on grounds additional or further to those advanced in her grounds. But in any event, it was asserted that the appellant could safely return to Nigeria with her children as a family unit. The impact on that unit was not considered to be significant.

15. In oral submissions, Mrs Pettersen argued that Mr Syed's criticism of her client's decision was not justified. The Immigration Judge had rightly concluded that the children's welfare was a paramount consideration and he fully took account of those considerations in reaching his decision. Any criticisms of the Immigration Judge related to peripheral matters rather than to the main points. The decision was clearly in accordance with the Immigration Judge's wider discretion.

16. By way of reply the appellant pointed to the children's achievements in the UK, pointing out that they are settled in the UK education system. It was not necessary or appropriate for the children to face a new environment. In the event that I was satisfied there was a material error of law I was invited to set aside the decision and substitute my own decision which ought to be, in Mr Syed's submission, to allow the appeal against the respondent's decision to refuse further leave to remain.

17. At the end of the hearing I reserved my decision which I will later give.

Discussion

18. The appellant has raised every possible basis for remaining in the UK. Having arrived here illegally, she says, in 2001, she has made numerous attempts to stay, in apparent contravention of immigration law. These have included a number of applications under the ECHR, all of which have been rejected. Having failed in no less than three attempts to remain in the UK she has also raised issues relating to asylum and an alleged fear of her former partner's family. These have not been pursued by her but she has attempted to argue before the FTT "people trafficking, the need to protect and safeguard the welfare of her children" and has relied on the medical condition of her son Daniel.

19. Realistically, Mr Syed has not pursued any appeal on the basis that the appellant was people trafficked or would fear serious harm from family members in Nigeria. Nor, it should be recorded, is there any present appeal on the permission given by Judge Scott-Baker against the dismissal of the appeal by the Immigration Judge on grounds of the Immigration Rules. It is only if the appellant can bring herself within the ECHR on a so-called "freestanding basis" that her claim could succeed.

20. The appellant would be returning with her three children as part of one family unit to the richest country in Africa where English is widely spoken. The Immigration Judge found that the appellant did have family members in Nigeria, a country where she has spent more than half her life, and also found that it had a highly functioning system of education. The Immigration Judge noted at paragraph 23 the achievements of the appellant's children within the UK education system. He also had regard to Daniel's medical condition. However, it may be that the appellant will need to pay for some of these services if she returns to Nigeria rather than depend upon the UK taxpayer for support.

21. I now turn to consider Article 8 of the ECHR and its relationship with the Immigration Rules (Appendix FM and paragraph 276ADE). These provisions are currently the subject of some debate and there are a number of cases before the Supreme Court which may cast additional light on this difficult area. However, in this case the appellant does not contend that she satisfied the requirements of the Immigration Rules and all recent authorities emphasise the need to consider the framework provided by those Rules as an appropriate starting point for the consideration of the appellant's protected human rights. Furthermore, the Immigration Rules are now supplemented by Sections 117A - 117D of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). Section 117B (1) provides that when considering Article 8 the maintenance of effective immigration controls is in the public interest. Section 117B (6) provides, however, the public interest does not require a person's removal where that person has a genuine and subsisting parental relationship with a qualifying child and it would be reasonable (and in the child's best interests) to expect the child to leave the UK. A "qualifying child" includes "a person who is under the age of 18 and who ? has lived in the UK for a continuous period of seven years or more". The authorities, including those quoted by the Immigration Judge, emphasise the need to appraise the best interests of the qualifying child or children as part of the overall Article 8 assessment. A qualifying child is not to be punished for the conduct of his parent or parents. However, the exercise is an intensely fact-specific one. Provided the tribunal takes account of the best interests of the child and carries out a proper balancing exercise the appellate court or tribunal will not interfere with that assessment.

Conclusions

22. Although the Immigration Judge did not explicitly refer to Section 117B (6) in his decision, he clearly understood where the burden lay, the need for a two-stage approach and the need to balance the interests of the appellant and her family who have been enjoying a private and family life in the UK, with those of the wider community. The wider community considerations include the need to safeguard the economic interests of the UK and the need to protect the UK taxpayer from unnecessary and unwarranted demands of paying for foreign nationals to be educated at state expense. These public interest concerns were balanced in the decision against the substantial interests of the children in enjoying a settled family life in the UK with the appellant. The Immigration Judge referred at several points in his decision to the requirement in Section 55 of the 2009 Act to ensure that the child's interests were a primary consideration (see for example paragraph 21). He also referred expressly to Section 117B, although he may not have referred explicitly to subsection 6. I am satisfied that the Immigration Judge took account of all the facts of this case and balanced them against the need for effective immigration control. I am satisfied that the Immigration Judge attached proper weight to the factors that were relevant in the case and reached a decision which was open to him on the facts as presented to him. The appellant did herself few favours by advancing a number of irrelevant matters before the Immigration Judge, which she herself has not pursued, such as the allegation of people trafficking. However, the Immigration Judge properly focused on the issues before him and reached a conclusion that it would not be proper or right for the UT to interfere with.

Notice of Decision

The appellant's appeal against the decision of the FTT to dismiss the appeal on all grounds is dismissed.

The decision of the respondent to refuse the application for further leave to remain stands.

The Immigration Judge made an anonymity direction, which is continued by the UT.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD

No fee award was made in this case and there is appeal against that decision.

Signed Date

Deputy Upper Tribunal Judge Hanbury