Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: iA/21540/2015
ia/21542/2015
ia/21545/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 March 2017
On 21 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

EMEH SOLOMON OGWE
IHUOMA OGWE
CHIANYIDI VICTOR OGWE
(NO ANONYMITY ORDER MADE)

Appellants
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellants: Miss Childs of Counsel
For the Respondent: Mr Jarvis a Home Office Presenting Officer

DECISION AND REASONS

Background

1. The Respondent refused the Appellants’ applications for leave to remain on 27 May 2015. Their appeal against this was dismissed by First-tier Tribunal Judge Lawrence (“the Judge”) following a hearing on 2 August 2016.

The grant of permission

2. Upper Tribunal Judge Warr granted permission to appeal (7 February 2017) saying it is arguable that the Judge has erred in law regarding whether the first Appellant was in Nigeria or the United Kingdom in November 2004.

Appellant’s position

3. The Judge ignored evidence from the first Appellant’s employer that he was working within their store in Leicester on 11 November 2004. This evidence was within the original bundle and contained in a letter dated 29 May 2009. In doing so the Judge erred in finding that he had not been living in the United Kingdom by the time of the hearing for 19 years. This was material as it could have altered the balance contained within the proportionality balancing exercise the Judge was required to embark on and in particular the credibility of the adults. The Judge did not find precisely how long he had been here, but it was certainly since 2009 when he was served with notice that he was an illegal entrant.

4. The Judge did not adequately consider the best interest of the third Appellant, who at the time of the hearing, had resided here for some 6 years, and did not adequately assess his private life.

Respondent’s position

5. Mr Jarvis relied on the Rule 24 notice (21 February 2017) which asserted that the Judge adequately dealt with the 2004 point, and was entitled to find that neither adult Appellant was a witness of truth. He was entitled to find that they had completely disregarded the laws of the United Kingdom. The Judge made clear findings in relation to the best interest of the child and was entitled to do so on the evidence.

6. It was submitted orally that immigration history can play a part within the balancing exercise. The Judge considered all the relevant evidence regarding the length of time the first Appellant had been here. In any event this counted against the Appellant as he had been living and working illegally for longer. The Judge was entitled to find that there were no very significant obstacles to the family returning to Nigeria and properly considered the best interests of the child. This case could not have succeeded.

Discussion

Ground 1

7. The Judge considered the evidence relating to the length of time the first Appellant had been here and noted the evidence from the previous hearing in 2009 and that he had entered here under a false name. The Judge considered correspondence from his claimed employer, payslips, bank statements, tenancy agreements, and oral evidence [11-14]. It is not necessary for me to recite the precise detail but I note that he identifies page numbers from within the Appellants bundle and specifically excludes documents at pages 179/180. These relate to a letter from his solicitor and a reply from the employer in Leicester from May 2009 which states “I can confirm that on the 11th November 2004 Solomon was in our employment and working within our store”.

8. I am satisfied that this omission indicates a lack of attention to detail which (when I asked for her submissions as this was not raised orally or in the written application) Miss Child’s pointed out is also indicated in the number of typographical errors contained for example in [27 (i)] relating to the number of minors involved, and the exclusion of the word “no” from the final sentence of [27 (ii)].

9. I am not satisfied that the omission of confirmation of consideration of the documents at pages 179/180 of the Appellants’ bundle, or the typographical errors, are material for the following reasons.

10. When considering whether there will be very significant obstacles to them returning to Nigeria, or whether it was proportionate to require the family to leave (even assuming there were compelling circumstances entitling the Judge to consider this), the precise length of time he had been outside of Nigeria was of little relevance. He had worked here (illegally) and can work legally in Nigeria having done so in the past. The second Appellant can work in Nigeria having done so in the past as a banker [20]. They have no health problems whether physical or mental other than her having fibroids [21]. They both speak the language used in Nigeria and are familiar with the culture (these points never being in issue). Being able bodied adults they do not require family support, although I note that there is no challenge to the finding that they have relatives to whom they can turn while they seek employment [22]. The Judge therefore made findings open to him on the evidence and struck a balance he was entitled to. The exclusion of confirmation he had considered the employer’s letter does not adversely impact on the credibility of the first Appellant in any other respect, or the second Appellant at all as it did not relate to her.

11. In themselves the typographical errors are not significant as it is clear from a fair reading of the decision that Judge was aware of there being only 1 child, and it was never asserted that he had physical, mental, or psychological impediments to adapting to life in Nigeria.

12. The Judge was therefore entitled to find that there were no very significant obstacles to their returning to Nigeria irrespective of how long he had been here, and that in relation to the adults, it was proportionate to require them to leave when also considering their abysmal immigration history, he having used a false name to come here, and the significant drain on the economy they have been given, among other things, their access to health care and schooling for the third Appellant.

Ground 2

13. The Judge considered the best interests of the child [23-29]. The Judge notes the family will not be separated as he would be returning with his parents. He noted that the starting point would be that it is in his best interests to remain with his parents if they were removed and that there was no evidence they were unfit carers [27 (i)]. He noted the different weather, social environments, and school system. He found that these were not fundamental, and the child, given his tender age, could adapt [27 (ii)]. The Judge noted that the child had not been here for 7 years [27 (iii)] and had not put down such routes as to prevent him adapting to life in Nigeria [27 (iv)].

14. I am satisfied that the Judge’s findings in relation to the child are sustainable. The fact he did not detail the child’s school reports was immaterial given the brevity of time he had been at school and his tender age. He did not hold against the child within that context his parents’ dreadful immigration history. In summary, he properly conducted the best interest assessment and was entitled to conclude that the child’s case should be dismissed.

Decision:

The making of the decision of the First-tier Tribunal did not involve the making of a material error on a point of law.

I do not set aside the decision.

Signed:
Deputy Upper Tribunal Judge Saffer
20 March 2017