Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/20967/2015
IA/20971/2015
IA/20976/2015
IA/20980/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 April 2017
On 25 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

AA
DB
EB
GB
(ANONYMITY DIRECTION MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mrs M Teclehaimanot, Cardinal Hume Centre
For the Respondent: Mr T Wilding, Home Office Presenting Officer

DECISION AND REASONS
Background
1. The appellants in this case are all members of the same family and citizens of Nigeria. The first appellant was born on 2 April 1979 and her three minor children were born on 11 January 2007, 9 August 2010 and 20 May 2013. The first appellant entered the United Kingdom as a visitor on 9 August 2004 and overstayed after her leave expired on 23 December 2004. The appellants made an application to the respondent for leave to remain on human rights grounds. That application was refused in a decision dated 20 May 2015. In a decision promulgated on 12 September 2016, following a hearing on 22 August 2016, Judge of the First-tier Tribunal Maxwell dismissed the appellants’ appeals.
2. The appellants sought permission to appeal to the Upper Tribunal on the grounds that the first appellant’s credibility was challenged without giving any “credible reasons” and that the judge was incorrect and did not give reasons why he did not accept the first appellant’s evidence in relation to contact in Nigeria and in relation to financial support which the judge found would be available to them after they left the UK.
3. A judge of the First-tier Tribunal granted permission on 31 January 2017.
Error of Law Hearing
4. Mrs Teclehaimanot helpfully submitted a supplementary bundle with a skeleton argument. She asked the Upper Tribunal to find an error of law and relied on the Court of Appeal’s decision in MA (Pakistan) [2016] EWCA Civ 705, paragraph 36: the concept of reasonableness is focused on the qualifying children and:
“the longer the child has resided in the UK, the more the balance will begin to swing in terms of it being unreasonable to expect the child to leave the UK, and strong reasons will be required in order to refuse a case with continuous UK residence of more than seven years” (IDIs paragraph 11.2.4).
It was her submission that First-tier Tribunal Judge Maxwell erred in failing to consider properly the best interests of the appellant’s children in this case and in particular that the respondent had failed to properly consider the respondent’s duty to the children under Section 55 of the Borders, Citizenship and Immigration Act 2009; the Tribunal had failed to attach sufficient weight to the best interests of the children.
5. For the respondent Mr Wilding submitted that all five paragraphs of the grounds for permission to appeal sought to reargue the case before the First-tier Tribunal and amounted to a response to the judge’s findings, rather than identifying anything arguably wrong or inadequate in those findings. In paragraph 1 of the grounds it had been argued that the judge at [16] found it difficult to accept that the first appellant was credible; it was argued that the judge was incorrect in finding that the response of the first appellant and her witness, her pastor Mr DA, in giving the same response “Out of sight. Out of mind.” was highly suggestive of collusion. The judge did not find either the first appellant or the witness credible and gave reasons why he did not accept the evidence of the second witness, Mr DA, including that he gave a vague and significantly less convincing answer when challenged on his evidence that the appellant would not continue to receive the funding that she does in the UK once back in Nigeria. Although the witness first indicated that there were difficulties in sending money to Nigeria by money transfer, when it was pointed out that this was not true, that money transfers via Western Union were perfectly feasible, the judge, at [17], did not accept his vague answer that they would rather support somebody in the United Kingdom. The judge also noted that Mr DA then went on to suggest that this was a question of policy for the church.
6. The judge gave cogent reasons for not finding the evidence of either the first appellant or Mr DA to be credible and those findings were open to her.
7. The second paragraph of the grounds for permission again took issue in relation to the judge’s credibility findings (at [18] that the funds in Nigeria would not cease). Whilst the grounds for permission stated that the judge failed to give reasons why he rejected the first appellant’s claim that the money would cease, as already noted, the judge did not accept the evidence of DA and was not satisfied that there was any evidential basis for the appellant’s claim that the cost of living was more expensive in Nigeria. It was for the appellant to establish her case and it was open to the judge to find that she had failed to do so. It was not suggested that this was an irrational conclusion and I am satisfied that there are adequate reasons given for the conclusions reached.
8. Mr Wilding submitted with regard to the remaining grounds that again this was a disagreement with the credibility findings rather than a challenge to either the rationality or the adequacy of reasons of those findings at [19] and [20] of the Decision and Reasons.
9. At [19] the judge addressed the evidence in relation to the first appellant’s claims to be estranged from her partner and not to have contact with him, which the judge found to be inconsistent with the evidence from the second witness, Mr DA. It was entirely open to the judge to not accept that evidence for the reasons he gave including that it was not credible that she had no contact with him or did not know where he was, particularly as the second witness Mr DA had some form of contact with him.
10. Similarly in relation to [20] of the Decision and Reasons, where the judge did not accept the claims of the first appellant that the contact with her children (the second to fourth appellants) had with their paternal grandfather via Skype and similar methods had ceased when her partner left her, the judge found that there was no logical reason why the grandchildren would not want to speak to their grandfather. The judge was entitled to not accept the claims of the first appellant that their grandfather was “grumpy” and did not want her children to have anything to do with them.
11. I am satisfied that the conclusions reached by the First-tier Tribunal were open to the judge in what was a carefully reasoned decision; the grounds advanced amount to no more than a disagreement with those findings and do not come close to identifying any arguable error of law identified.
12. Whilst Judge of the First-tier Tribunal Hollingworth sought to expand those grounds by suggesting that the judge had failed to attach sufficient weight in his analysis of Section 117B(6) and that it was arguable that the judge had attached insufficient weight in the analysis of Section 55, in relation to the degree of integration of the second appellant as a qualifying child, I am not satisfied that any such grounds were properly before me. Ms Teclehaimanot did not suggest, and I am not satisfied, that such were Robinson obvious grounds. Nor was it established that there were exceptional circumstances (albeit that there must be an element of elasticity within such a concept) which would merit an enlargement of the grounds on which permission were sought at this stage (HS (Afghanistan) [2009] EWCA Civ 771 and DK (Serbia) [2001] WLR 1246 applied).
13. Even if the grounds were before me, I am not satisfied that it was properly arguable that the judge failed to attach sufficient weight to either the best interests of the children or to the public interest considerations. It cannot be said that the decision reached by Judge Maxwell was irrational, as seems to be suggested by the permission grant. It is not the case that no other judge would have reached the same decision.
14. Judge Maxwell set out his findings and conclusions from paragraphs 12 through to 44 of the Decision and Reasons and properly identified that the relevant issue was the effect of the decision on the children. The judge properly directed himself in relation to the guidance in PD and Others (Article 8 – conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC), in relation to the approach to take. The judge then went on to find that save for the second appellant, Master DB, none of the appellants’ cases fell to be considered under either Appendix FM or paragraph 276ADE as none of the appellants could meet the requirements of Appendix FM, by reason of their lack of immigration status, the third and fourth appellants could not meet paragraph 276ADE as they had not lived for a minimum of seven years in the UK at the date of application. The first appellant had lived most of her life in Nigeria but there was no reason why there would be significant difficulties in her integrating into Nigerian society. The Tribunal then went on to reach findings of fact including in relation to the claims made by the first appellant. On the basis of those findings of fact the Tribunal then considered the best interests of the children under Section 55 of the Borders, Citizenship and Immigration Act 2009; the judge reminding himself that those best interests were a primary consideration but not a paramount one.
15. The judge accepted that the second appellant had lived for at least seven years in the UK and therefore fell to be considered under paragraph 276ADE(1)(iv). The judge then went on to consider whether it would be reasonable to expect the second appellant to leave the United Kingdom.
16. In a closely reasoned consideration the judge considered the documentary and oral evidence including of the second appellant’s education and social life in the UK and that there was no suggestion of any medical problems. The judge also accepted that both the second appellant and his siblings spoke only English. The judge had doubts in relation to the claims that the second appellant had no relationship with his father. In any event, notwithstanding those concerns, the judge noted that the second appellant’s father did not have any immigration status in the UK and would therefore be expected to return to Nigeria in any event, if he had not done so already. Therefore the judge was entitled to reach the finding that he did that the removal would have no material effect upon the relationship between the second, third and fourth appellants and their father.
17. The judge went on to find that it was at the very least arguable that it was in the best interests of the second appellant to continue his education in the UK and the judge considered the application of MA (Pakistan). The judge properly reminded himself that the mere fact of those best interests being in favour of a child remaining in the UK is not the end of the matter and the decision maker must go on to look at the evidence in the round and determine whether it is reasonable to expect the child to leave the UK.
18. The judge properly considered all the aspects including the guidance of the Court of Appeal in MA (Pakistan). that it is vital for the court to have made a full and careful assessment of the best interests of the child before undertaking any balancing exercise and that the court must not treat the other considerations as so powerful as to assume that they must inevitably outweigh the child’s best interests.
19. The judge considered that although remaining in the UK to continue his education may well have be in the second appellant’s best interests, the judge was satisfied that the second appellant could continue his education in Nigeria as could his siblings, where English was an official language widely spoken and in which he could reasonably expect to be educated. Whilst the judge accepted that they may not presently speak any other language than English he was satisfied that they were of an age where they could readily acquire a new language. The judge acknowledged that there might be some interruption in the second appellant’s education, between them leaving the UK and establishing life in Nigeria, but that there was no evidence to suggest that this would be for any significant period. The judge also factored in that at least some of the financial support presently given to the appellants would continue and his findings that there were family connections in Nigeria to whom the family could turn for moral if not practical support.
20. It was entirely open to the judge therefore, having had proper regard to the best interests of the second appellant to find that nevertheless it was reasonable in all the circumstances for him to return with his family.
21. In addition, the judge went on to consider Article 8 outside of the Immigration Rules and directed himself that the second appellant was a qualifying child and that Section 117B(6) was satisfied. The judge properly reminded himself the Court of Appeal in MA (Pakistan) concluded that Section 117B(6) is no more than a factor of some weight in favour of leave to remain being granted and that the same reasonableness test as conducted under paragraph 276ADE(1)(iv) applied.
22. In reaching his conclusions the judge also took into account the circumstances of the two youngest appellants and that the family would remain as a family unit and would continue to enjoy financial assistance and would receive education in Nigeria. The judge also properly applied the public interest considerations under Section 117B of the Nationality, Immigration and Asylum Act 2002 and further reminded himself that the listed public interest factors were not the sole basis of consideration but a general balancing exercise must be undertaken. Taking all this into account, it was properly open to the judge to find that removal was reasonable.
23. It is not the case, as suggested by the appellants’ representative, that the judge was incorrectly blaming the children for mistakes of their parents; the judge very carefully undertook a separate consideration of the best interests of the children and went on to reach findings open to him that nonetheless it was reasonable for the qualifying child and the rest of the family to return.
Conclusion
24. The decision of the First-tier Tribunal does not contain a material error of law such that it must be set aside. The decision of the First-tier Tribunal shall stand.

Notice of Decision

The appeal is dismissed.

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

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

Signed Date: 21 April 2017

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

As I have dismissed the appeal there can be no fee award.

Signed Date: 21 April 2017

Deputy Upper Tribunal Judge Hutchinson