Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: ia/21779/2015
ia/21786/2015
ia/21783/2015
ia/21789/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th November 2016
On 2 December 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

Victoria [O] (first appellant)
Stanley [O] (second appellant)
[L O] (third appellant)
[S O] (fourth appellant)
(aNONYMITY DIRECTION NOT MADE)

Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr S Unigwe, Counsel
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellants appeal with permission against the decision of First-tier Tribunal Judge Froom who dismissed their appeals on Article 8 grounds. The appellants are citizens of Nigeria and the first and second appellants are the parents of the third and fourth appellants. The first two appellants were born on 23rd February 1979 and 2nd February 1972 respectively and their children are 9 years old and 6 years old being born on 6th October 2007 and 21st March 2010. A third child [D] was born on 5th February 2013 and was not party to the proceedings. A key issue in the proceedings was that the third appellant had lived continuously in the UK for seven years.
2. The first and second appellants had both come to the United Kingdom as visitors, in 2006 (the Secretary of State records 2007), overstayed their leave and had not had leave since their six month visas expired. The appellants made their applications on 27th March 2015 and the refusal was made on 26th May 2015. Consideration was given to the appellants' applications both under Appendix FM and under paragraph 276ADE. The first and second appellants were considered to be ex-partners but the second appellant had daily contact with the children. (Their relationship was said to have since resumed). It was not accepted that it would be unreasonable for the children to relocate to Nigeria and it was also not accepted that there would be very significant obstacles to integration into Nigeria. Separate consideration was given to the third and fourth appellants. It was noted that the appellant had lived in the UK for seven years but it was not considered unreasonable to expect him to leave the UK because he would be returning to Nigeria with his parents and siblings as a family unit.
3. The challenge to the First-tier Tribunal Judge Froom's decision, and for which permission was granted, was made on the basis that the judge had failed to consider adequately, or at all, the impact of removal on the appellants' moral and physical integrity and that the removal would prejudice their private and family life in contravention of Article 8 of the ECHR. It was asserted the best interests of the children had to be considered and given paramount weight as part of the assessment of proportionality. This was not done by the judge.
4. At the hearing before me Mr Unigwe referred to paragraphs 33 to 37 of Judge Froom's decision in which he noted that the eldest child (third appellant) was making progress at school and that he was a promising footballer, a fact recognised by his admission to the Reading Academy. The judge had asserted that there were no unusual features to this case but his assessment at paragraph 34 was plainly wrong and the judge had failed to consider the best interests of the child. The judge had not engaged outside the Rules which was an error of law and the representative could not understand how the judge could have concluded that the Rules themselves provided adequate protection for the appellants' human rights. Under Section 55 the judge clearly was obliged to promote the welfare of the children. The judge merely dismissed Section 117B(6) but it was an applicable section in this case.
5. Mr Duffy resisted the grounds of appeal asserting they were merely a disagreement and there was nothing wrong with the decision. The best interests of the children had been considered in a correct and lawful manner.
6. The grant of permission specified that it was arguable that the judge had set out an insufficient analysis of the criteria pursuant to Section 117 of the Nationality Immigration and Asylum Act 2002 in carrying out the proportionality exercise and that it was arguable that the judge had attached insufficient weight to the provision that the public interest did not require removal where it would not be reasonable to expect a qualifying child to leave the United Kingdom. Further the judge had elided the application of its conclusions in relation to Section 55 with the provisions set out in Section 117 in relation to a qualifying child. It was arguable that the judge should have conducted a full proportionality exercise and that there were very compelling circumstances which enabled this to be done.
7. I find no arguable or material error of law in this decision. The judge carefully considered the application of the Immigration Rules to both the parents and the children and was fully aware that the third appellant had lived in the UK for a continuous period of seven years immediately preceding the date of application. The crucial point is whether it would be reasonable to expect the child to leave the United Kingdom. This was relevant to consideration under paragraph EX.1.(a) of Appendix FM and of paragraph 276ADE(4) and also of Section 117B of the 2002 Act. As the judge recorded at paragraph 16 the nub of the matter was whether either within or without the Rules it was reasonable for the children to move to Nigeria and live with their parents there. It was quite clear, as the judge found, that the children were not British citizens and that all of the appellants were Nigerian nationals and could return to Nigeria together (20). The judge accepted that the relationship between the first two appellants was indeed ongoing and they confirmed that they would all live together as a family on return to Nigeria.
8. The judge considered the circumstances of the parents and noted that both the first and second appellants had family in Nigeria and the second appellant had worked as a barber there. In essence the judge established the position of the parents because this is what would affect the children. The judge proceeded at paragraph 25 to make findings with respect to the children not least the third and fourth appellants who attended primary school, where they were progressing well, and he noted that the third appellant has ambitions to be a professional footballer. The judge made a very detailed consideration of the best interests of the children between paragraphs 33 to 37. It is the substance of the analysis which is critical in relation to the best interests of the children and the judge was perfectly aware that the children would be uprooted from school which would be stressful for the children and, particularly for the third appellant, but he found that was far from unusual and that it was important that he would not be separated from his parents or the family as a whole. The judge found that he had grandparents and aunts and uncles in Nigeria who could assist the parents and no doubt the children to resettle. The father was found to be able-bodied and had a transferable skill which would mean he would be able to find employment to support the family.
9. The judge also made a finding at 35 that there was an education system in Nigeria and there would be interruption to the progress but the third appellant was obviously a bright and capable boy and the foundation he had gained in school in the UK would stand him in good stead in Nigeria. The judge noted in particular that there may not be the same facilities in the Edo State to match the footballing facilities at Reading Academy but that was not a significant point when assessing the reasonableness of expecting the child to leave. He noted that the third child was in good health.
10. Essentially at paragraph 39 the judge found the family were familiar with Nigerian life even if they had become accustomed to life in the UK and there was absolutely "no reason they could not integrate quite readily." As for the children there would be more of a challenge but not one which there is any reason to believe they would not be able to manage with the help of their parents and wider family. In essence the judge assessed the key point of the reasonableness of the child's return under Appendix FM and paragraph 276ADE(1)(iv). There was no need for the judge to pursue a further analysis under sub-Section 117B(6) as he stated this covered the same ground as paragraph 276ADE. That must be right. The judge conducted a best interests assessment and it cannot be argued that he elided that Section 55 assessment with the assessment under Section 117.
11. The judge having found the appellants could not succeed under the Rules, nonetheless turned his attention to Article 8 outside the Rules making a finding that Article 8 in relation to family life was not engaged and this was a finding which was open to him indeed, as he stated, the whole family were Nigerian nationals and their family life was with each other.
12. In relation to private life, as he stated only if compelling circumstances were shown that it was necessary to look beyond them and as the judge stated at paragraph 44 the question is whether the appellants' particular circumstances demanded separate assessment or whether the application of proportionality balancing exercise would inevitably lead to the same result as the application of the Rules; he found that it did so and that the Rules themselves provided adequate protection for the Human Rights.
13. It is clear as the judge stated that it was not possible to find a significant gap between the protection offered by the Rules and that which was offered by Article 8.
14. As I have identified the judge wove the best interests of the children into his determination as a whole and yet for the avoidance of doubt specifically identified at paragraph 46 that the children's best interests were a primary consideration and indeed although as Mr Unigwe stated they were of paramount consideration as the judge states they are not a trump card. The judge specifically identified the fact that seven years is a significant period recognised under the Rules in which to live in the UK but also adopted the correct legal approach in taking into account the fact that a child is not British, when assessing proportionality and the weight to be given to the best interests.
15. The judge's assessment also referred to EV Philippines [2014] EWCA Civ 874 and referred to both strands of thought from that decision, which culminated in a finding that
"where the parents had no independent right to remain in the UK it was 'entirely reasonable' to expect the children to go with them."
16. The desirability of the children being educated at the UK public expense could not outweigh their best interest which was to remain with the parents. As identified at paragraph 50 Judge Froom noted, in effect, that the best interests of the children are not necessarily a trump card and that the reasonableness of the return should not be determined by reference to the child alone without reference to the immigration status or history of the parents and this point is underlined and reinforced by MA Pakistan v SSSHD [2016] EWCA Civ 705 .
17. There is no doubt that the judge made a full assessment of the reasonableness of the third appellant's removal to Nigeria, the best interests of the children and all the relevant factors in relation to Article 8, whether considered within or without the Rules.
18. I find no error of law in this decision and the decision shall stand.
No anonymity direction is made.

Signed Date 1st December 2016

Helen Rimington

Upper Tribunal Judge Rimington