Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21307/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 March 2017
On 23 March 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

K U OKEKE
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr M Rashid, counsel instructed by Carlton Law Chambers, Solicitors
For the Respondent: Mr K Norton, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The respondent refused the appellant’s human rights application for reasons explained in her letter dated 27/5/15.
2. FtT Judge Suffield-Thompson dismissed the appellant’s appeal for reasons explained in her decision promulgated on 5/8/16.
3. The appellant is a citizen of Nigeria. He has a son born in the UK on 22/1/07 and a daughter born in the UK on 18/9/09. He is separated from their mother. She is a national of Sierra Leone with no leave to remain in the UK. The latest information at the date of the hearing in the FtT was that she had failed in her appeal to that tribunal.
4. The respondent’s decision was reached on the basis that the appellant played no part in the lives of his children, but the judge accepted that he was heavily involved.
5. The grounds of appeal to the UT found on the judge having become confused over dates, which is so. The error which might be pertinent and on which permission was granted is that at paragraph 32 the judge said that the children “have not been in the UK for the 7 years immediately preceding the applications”. The older one had been.
6. The grounds suggest that it ought to have been considered whether the child would qualify on grounds of private life for leave to remain, the question being in terms of paragraph 276ADE(iv) of the rules whether “it would be reasonable to expect the applicant to leave the UK”.
7. I have some doubt whether paragraph 276ADE(iv) bears on this case, as the appellant did not apply along with his children, and they were not co-appellants. However, that is of no great significance, because the older child was a “qualifying child” in terms of section 117D(1)(b) of the 2002 Act, and the facts of the case fell within s.117B(6): the appellant, on the judge’s findings, had “a genuine and subsisting parental relationship with a qualifying child” and so the question should have been posed: whether it would be “reasonable to expect the child to leave the UK”.
8. Mr Rashid submitted that the case should have reached the same question in terms of paragraph EX1 of Appendix FM.
9. The issues around “best interests” and around “reasonability of being expected to leave the UK” are closely interwoven, but not the same. 7 years’ residence is not an automatic answer to a case, but it is a significant feature which should not have been overlooked, even although the judge did not have the assistance she should have had from the submissions of both sides.
10. It was conceded for the respondent that there was error of law, such as to require the FtT’s decision to be set aside. Parties advised me of the up to date circumstances, and agreed on further procedure, as follows.
11. The older child appears to have become entitled to UK citizenship. His mother has made an application on his behalf, which is pending.
12. The cases of the children and their mother were remitted to the FtT for fresh decision, the error of law having been failure to take account of evidence from the present appellant. A hearing has been fixed at Taylor House, London, on 17 or 19 April 2016. The case references are IA/06575, 06573 and 06581/2015. It is desirable that these proceedings should be linked for further decision.
13. There is no scope for revisiting the FtT’s findings of primary fact.
14. It is found of consent that in terms of section 12(1) of the 2002 Act the making of the decision of the FtT involved the making of an error on a point of law; that in terms of section 12(2)(a) that decision is set aside; and that under section 12(2)(b)(i) the case is remitted to the FtT for reconsideration in accordance with the above.
15. No anonymity direction has been requested or made.

UT Judge Macleman
23 March 2017