Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21902/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 April 2017
On 21 April 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

Babajide Olayinka Adeniji
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms V Sharkey, MediVisas UK LLP
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Mr Babajide Olayinka Adeniji, was born on 22 May 1978 and is a male citizen of Nigeria. He applied for leave to remain in the United Kingdom on human rights grounds. His application was refused by a decision of the Secretary of State dated 26 May 2015. The Secretary of State was satisfied that the appellant’s presence in the United Kingdom was undesirable. The appellant’s wife (a businesswoman with limited leave to remain in the United Kingdom) did not have a status which enabled the appellant, as her partner, to succeed under the Immigration Rules. The couple have two children (born in 2008 and 2012 respectively) who were both born in the United Kingdom. The appellant appealed against the refusal to the First-tier Tribunal (Judge A J M Baldwin) which, in a decision promulgated on 26 September 2016 dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The appellant had been convicted of a number of criminal offences. In May 2011, for the offence of attempted fraud he had received a sentence of 200 hours’ unpaid work. Subsequently in February 2013 he had received sixteen weeks’ imprisonment (suspended for two years) for fraud by false representation.
3. Judge Baldwin [19] considered “the best interests of the children are the first and primary consideration”. He considered that their best interests would be “best served by the family remaining together.” He noted that one of the children (T) has social, emotional and behavioural problems for which he was receiving assistance in the United Kingdom. The judge noted that the appellant’s wife intends to apply for indefinite leave to remain and indeed naturalisation as a British citizen in due course. Ms Sharkey, who appeared for the appellant at the Upper Tribunal hearing, told me that she was likely to do so within two years. The judge noted that it was possible his wife would seek to remain in the United Kingdom whether or not the appellant returned to Nigeria. At [20] the judge concluded that there was “no very significant obstacle to [the appellant] returning [to Nigeria]. If the parents believe that the best interests of the children lie in them remaining in the UK with their mother, there is no reason why she cannot sponsor an Entrepreneur Dependant Application made by the appellant in Nigeria.” There was no reason why the mother could not take on full responsibility for the children’s day-to-day needs whilst the application was made from Nigeria by the appellant. The judge went on to state that, “the appellant can make an application to return [to the United Kingdom] and the circumstances are neither compelling nor exceptional.” Ultimately it was “a matter for the parents whether they consider it best for the four of them to live together in Nigeria or three of them to remain in the UK for the time being”.
4. The parties agree that the grant of permission (by Deputy Upper Tribunal Judge Chalkley) contains an obvious error. Judge Chalkley seems to have believed that the appellant was subject to a deportation order and that he would be excluded for at least ten years from the United Kingdom. In fact, the appellant is not subject to deportation but will be excluded (under the provisions of paragraph 320 of HC 395 and on account of his criminal offending and overstaying) for a period of twelve months following his departure. The grounds submit that the judge did not have proper regard to the fact that the appellant would be excluded for a period of twelve months. It is also the appellant’s case that the judge had failed to have proper regard to the Secretary of State’s own guidance which indicates that a child who has been living in the United Kingdom for seven years should only be expected to leave the United Kingdom if there were “strong reasons” for doing so.
5. I find that the appeal should be dismissed. I have reached that conclusion for the following reasons. First, whilst I acknowledge that the judge has not made specific reference to the fact that the appellant would be excluded for a period of twelve months, there is no reason to suppose that he was oblivious to that fact at [20]. I see no reason why the judge’s findings should not be read on the basis that the judge was well aware that any application out of country which the appellant may make will be delayed by twelve months. Secondly, it makes little sense that the appellant should expect to be granted leave to remain in the United Kingdom because of the possible negative impact on his family life caused by a twelve month delay resulting solely from his own criminal conduct and overstaying. Thirdly, the judge makes the correct observation that it is essentially a matter of choice for this family whether or not they are separated in the short or longer term. There is nothing whatever to prevent the family returning to live in Nigeria, the country of their nationality. By doing so, they will be able to continue their family life together. Even taking into account the problems currently experienced by T, there are no reasons why it would be unreasonable to expect the family to return together to live in Nigeria. Fourthly, as regards the “strong reasons” required under the Secretary of State’s guidance, I agree with Mr Wilding’s submission that the appellant’s serious criminal conduct and his abuse of the immigration system offer ample “strong reasons” for requiring the family to relocate. Ultimately, Judge Baldwin reached a conclusion which was plainly available to him on the facts of the case. There is, therefore, no question of his having acted irrationally or perversely. Given that that is so, any error of law capable of disturbing the decision must lie in the process which led to the dismissal of the appeal. I find that that process, involving an accurate assessment of the evidence and application of relevant law, was free from legal error. The judge has not erred in law either for the reasons asserted in the grounds of appeal or at all. The appeal is dismissed.

Notice of Decision
This appeal is dismissed.
No anonymity direction is made.

Signed Date 20 April 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date 20 April 2017

Upper Tribunal Judge Clive Lane