Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22293/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 January 2017
On 13 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

B A P
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr Karim, counsel
For the Respondent: Mr Tony Melvin, Home Office Presenting Officer

DECISION AND REASONS

1. This matter comes before me for consideration as to whether or not there is a material error of law in the determination of First-tier Tribunal Judge Swinnerton ("the FTTJ") promulgated on 7 March 2016, in which he "refused" the appellant's appeal against the refusal of his application for leave to remain on Article 8 grounds.
2. No anonymity direction was made in the First-tier Tribunal but, given the references in this decision to the appellant's partner's health, an anonymity order is required.

Background
3. The appellant is a Nigerian citizen who claims to have entered the UK illegally in 2000 using a false passport. He has remained in the UK since that date. The appellant has lived since 2003 with his partner who has dual British/Zimbabwean nationality. His partner has various medical conditions. The appellant's partner's 25 year old son lives with the couple; he was, at the date of hearing before the FTTJ, in the final year of a degree course, intending to study for a Master's degree and had been offered permanent part-time work. The appellant's partner works part-time as a nurse. The appellant claimed to have a parental relationship with his partner's son with whom he had lived since the latter was 12. The appellant's parents and sister live in Nigeria but the appellant claimed to have lost contact with them.
4. Whilst the respondent noted the appellant's partner's ill health, the appellant's application was refused on the ground that, pursuant to EX.2 of Appendix FM, there were no insurmountable obstacles to the appellant's family life with his partner continuing outside the UK. Further, with regard to the appellant's private life, there were not very significant obstacles to his integration in Nigeria, given he had lived there for over 24 years before coming to the UK.
5. The FTTJ dismissed the appeal on the grounds that there was an inconsistency in the evidence regarding contact with the appellant's family in Nigeria and it was not credible the appellant had maintained no contact with family there. The FTTJ noted the appellant's partner's son was an adult, had a degree of financial independence and that any ongoing financial dependence on his mother would be "limited". The FTTJ noted there was no evidence that the appellant's partner's medical condition prevented her from travelling to Nigeria or receiving medical treatment there. The FTTJ concluded at [73] that there were "would [not] be insurmountable barriers to the appellant and his partner returning to Nigeria". The FTTJ found the appellant "would be able to re-establish ties with his existing family in Nigeria". The FTTJ found the appellant's partner's son "who is aged 25 and has indefinite leave to remain in the UK, can choose to pursue a career in the UK or to accompany his mother". He concluded that the application of the appellant did not fall within EX.1.
Submissions
6. Mr Karim, for the appellant, relied on the grounds for permission to appeal and I summarise the areas of challenge as follows:
a. The appellant had pursued the appeal within the Rules. The FTTJ had failed to address the grounds of appeal to the FTT; the appellant would face serious obstacles to integration pursuant to 276ADE(1)(vi). The FTTJ had failed to engage with this provision. There was only a brief reference at [73] to "insurmountable barriers" but perhaps this referred to EX.1.
b. The FTTJ's credibility findings were flawed; he had referred to inconsistency in the evidence as between the appellant and his partner who had referred to a lack of contact with family in Nigeria for "a few years" as against "6 or 7 years". These periods were similar. This was not an inconsistency sufficient to found an adverse credibility finding.
c. Thirdly, there existed family life between the appellant and his partner's son whom he had treated as his own child. There were implications for the appellant relocating to Nigeria with or without his partner. The FTTJ should have considered the impact on the stepson who had attended to give oral evidence. The appellant relied on the guidance in Ghising (family life - adults - Gurkha policy) [2012] UKUT 160 (IAC), [52] onwards. The appellant's stepson could not be considered within the Rules and should therefore have been considered outside them. His mere adulthood did not mean he was independent; the evidence before the tribunal was that he lived within the family and was financially dependent on his mother. This was not a relationship which was to be penalised under s117B of the 2002 Act. It was a material error of law for the FTTJ not to make findings as to whether family life existed between the appellant and his stepson and the implications for the stepson as a result of the appellant's removal with or without his partner.
7. Mr Melvin, for the respondent, submitted the only reason given for the inability of the appellant to return to Nigeria was his partner's medical condition. The FTTJ had dealt with that at [69-72]. "Insurmountable barriers" and "very compelling circumstances" were much the same and the FTTJ's use of the former was not material to the outcome of the appeal. As regards the credibility findings of the FTTJ, the challenge was immaterial. The only point raised was the partner's medical condition; whether or not the appellant had family in Nigeria was not a material consideration. In any event, this was a "small forensic point" rather than a matter going to the core of the appeal. As regards the claimed family life between the appellant and his partner's son, the reliance on Ghising was misplaced; that was a case based on Gurkha policy and should not be extrapolated in a "normal case". There was nothing in the evidence pointing to any dependency over and above a normal adult relationship between the appellant's partner and her son who, according to the evidence, was working towards a master's degree whilst employed. He was effectively an adult living independently albeit in the family home. He should not be considered a child. The FTTJ had addressed all relevant issues.
8. In reply Mr Karim submitted that the issue of whether or not there were very significant obstacles should not be premised solely on the partner's circumstances. The appellant had identified in his witness statement provided in the FTT those factors to be taken into account. In any event, the FTTJ's use of the phrase "insurmountable barriers" was not specifically related to either EX.1 or 276ADE(1)(vi) and it was not clear to which aspect of the Rules the FTTJ was referring. This was a misdirection as to the law and therefore material to the outcome.
Discussion
9. I am unable to accept the submission that the FTTJ failed to address all the issues raised in the grounds of appeal. Following the changes resulting from the Immigration Act 2014, the appellant's right of appeal was limited to an appeal to the First-tier Tribunal against the refusal of his human rights claim. The grounds of appeal were also limited to those in s84 of the Nationality, Immigration and Asylum Act 2002, as substituted by s15 of the Immigration Act 2014. The FTTJ was not required to consider those matters outwith s84 and he did not do so.
10. The FTTJ's reference to "insurmountable barriers" at [73] is unfortunate and unhelpful. It suggests the FTTJ may not have addressed his mind to the relevant issues. It is stated in the decision that the FTTJ "has assessed the particular circumstances of this case and [does] not find that there would be insurmountable barriers to the appellant and his partner returning to Nigeria". It is not clear whether the reference to "insurmountable barriers" is meant to reflect any particular paragraph of the Immigration Rules (eg EX.1 which refers to "insurmountable obstacles" or paragraph 276ADE(1)(vi) which refers to "very significant obstacles"). However, irrespective of this, it is clear from the FTTJ's findings, which are unchallenged in the main save for criticism of the finding of inconsistency as regards contact with family, are that the appellant is able to settle in Nigeria with his partner. The FTTJ makes specific findings (unchallenged) that there is no evidence the appellant's partner would not be able to travel to Nigeria or obtain the requisite medical treatment there. Furthermore, irrespective of the challenged inconsistency in the evidence, the FTTJ finds the appellant could regain contact with his family on return; he had lived in Nigeria for most of his life and spoke the language. On this basis and the remaining unchallenged evidence, even if the FTTJ had misdirected himself as to the law, for example by setting too high a threshold for either EX.1 or paragraph 276ADE(1)(vi), the evidence was not such as to enable the FTTJ to find that the appellant had demonstrated that there were either insurmountable obstacles to the couple continuing their family life in Nigeria or very significant obstacles to the appellant integrating into Nigerian life. In making this finding, I take into account the appellant's witness statement in the FTT which includes a list of relevant factors, together with the evidence generally as to the nature of the appellant's and his partner's relationship with her son (and see also below as regards the appellant's and his partner's claimed relationship with her son).
11. It is submitted for the appellant that the FTTJ did not make specific findings on family life between the appellant and his stepson and that the failure to do so amounted to a material error of law.
12. At [68] the FTTJ makes specific findings of fact about the appellant's partner's son's circumstances which are not challenged before me. They are to the effect that the appellant's partner's son is aged 25, a few months from completing his studies and with "a degree of financial independence given his work with Virgin Atlantic in what now can be a permanent part-time position. This work is connected directly to his studies and the career path which he wishes to follow in the airline industry". The FTTJ finds that "as the appellant's step-son is now an adult and has a measure of financial independence, any ongoing financial dependence on his mother is likely to be limited". In his statement for the hearing in the FTT the appellant's partner's son referred to being dependent on his mother both emotionally and financially. However a degree of emotional and financial dependence is to be expected for an adult student living at home. The issue is whether that is over and above the norm. The FTTJ's findings on the issue are sustainable on the evidence. None of the witnesses make reference to the appellant's partner's son being dependent on the appellant. It cannot be said therefore that there exists family life, such as to engage Article 8, between the appellant and/or his partner and her son. Given the lack of evidence to suggest an emotional or financial bond over and above the norm between any of the parties, there was no need for the FTTJ to make further findings on the issue.
13. The evidence before the FTTJ does not support a finding that there are insurmountable obstacles to the appellant and his partner continuing their family life in Nigeria; nor does it support a finding that there are very significant obstacles to the appellant's integration on return. The outcome of the appeal could have been no different given the evidence before the FTTJ.
14. I do not accept Mr Karim's submission that the relationship between the appellant and his partner's son and/or the latter's relationship with his mother required the matter to be considered outside the Rules. The partner's son's age and personal circumstances did not meet the criteria in the Rules and those rules were drafted with the UK's obligations under Article 8 in mind. There was no requirement on the FTTJ to consider the matter further outside the Rules given the nature of the relationship between the appellant, his partner and her son (SS (Congo) and Ors [2015] EWCA Civ 387 and Sunassee [2015] EWHC 1604). The evidence was adequately considered by the FTTJ under the Immigration Rules. The appellant's circumstances are not such as to justify an assessment outside the Rules, insofar as his own relationship and his partner's relationship with her son is concerned.

Decision
15. The making of the decision of the First-tier Tribunal did not involve a material error of law and the decision is preserved.
16. This appeal is dismissed.

A M Black

Signed Date 13 January 2017
Deputy Upper Tribunal Judge A M Black

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

A M Black

Signed Date 13 January 2017
Deputy Upper Tribunal Judge A M Black