Tribunal decisions

The decision

IAC-BFD-MD-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/22697/2015
IA/22707/2015
IA/22702/2015
IA/22709/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 2 December 2016
On 13 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE APPLEYARD

Between

Bolanle [A] - first
[D O A]- second
[D A A] - third
[D J A] - fourth
(anonymity direction NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr M Izevbizua, Legal Representative.
For the Respondent: Mr M Diwnycz, Home Office Presenting Officer.

DECISION AND REASONS
1. The first Appellant is the mother of the second, third and fourth Appellants. They are all Nigerian citizens who applied to the Respondent for leave to remain on the grounds of private and family life. Their appeals were heard at Bradford before Judge of the First-tier Tribunal Pickup who in a decision promulgated on 27 April 2016, dismissed them.
2. The Appellants sought permission to appeal. Their applications were granted by Judge of the First-tier Tribunal Hodgkinson. His reasons for so doing were:-
"1. Permission is sought to appeal the decision of First-tier Tribunal Judge Pickup, dated 27 April 2016, dismissing the appellants' appeals against the respondent's decisions to refuse to grant them leave to remain on private and family life grounds. The appellants comprise mother and three children.
2. The applications for permission to appeal are significantly out of time. There is an explanation for this; namely, that the appellants were disadvantaged by the fact that their former solicitors, who were sent a copy of the Judge's decision, were intervened against by the Solicitors' Regulation Authority, which intervention is clearly documented. I am satisfied that the delay in lodging the notices of application is serious and significant but I am also satisfied that there is a potentially good reason for this, as indicated. I conclude that, in the interests of justice, time should be extended in this instance.
3. The grounds argue that the Judge failed properly to consider all material facts and circumstances, failed to take into account the fact that there was a (separate) pending application for leave to remain made by the husband of the family, and failed adequately to consider the best interests of the children, bearing in mind length of residence in the United Kingdom.
4. It is arguable that the Judge has inadequately considered the best interests of the eldest child of the family, bearing in mind that, at the hearing before the Judge, that child had resided in the United Kingdom throughout his life and for nearly 9 years. Permission is granted on this ground only."
3. Thus the appeal came before me today.
4. Mr Izevbizua handed up a list of authorities which he intended to rely upon and which were referred to in his skeleton argument. I have taken that bundle into account. Amongst other things it includes the Home Office Immigration Directorate Instructions and the authorities of Treebhawon and others (section 117B(6)) [2015] UKUT 674 (IAC) and MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber & Anor [2016] EWCA Civ 705.
5. He urged me to accept that the Judge had failed to, consider all the material facts of the case with particular reference to the Article 8 rights of the first child of the family, failed to take judicial notice of relevant statutory instruments and failed to properly assess "section 55 best interest of the first child who is a qualifying child under the Rules". He then went on to argue that as the first child of the family has lived in the United Kingdom continuously for at least seven years the public interest does not require the child with his family to be removed as no criminality is involved. Further that under the Respondent's own policy "it will take a strong contravening factor to refuse a qualifying child with his family leave to remain in the United Kingdom or to be removed from the United Kingdom". On this basis I was urged to set aside the First-tier Tribunal Judge's decision and to allow the appeal.
6. Mr Diwnycz submitted that there was no material error of law within the Judge's decision. The Judge was required to determine the appeal on the basis of the facts at the time of the hearing and was entitled to come to the conclusion that it was reasonable to expect the eldest child of the family to return to Nigeria for the reasons outlined in paragraph 16 to 19 of the decision.
7. Those paragraphs state,
"16. I have taken account of the best interests of each of the three children as a primary consideration pursuant to section 55. There is no question of the family being split up; either they will remain together as a family unit or leave as a family unit. I bear in mind the young age of the children, of whom only the oldest has been in the UK over 7 years, now almost 9 years. I take into account everything in the evidence and other materials placed before me and in the oral evidence and submissions, but I find that their best interests are undoubtedly to remain with their parents and that if, as I find, their parents are to be removed, their best interests are to leave with their parents.
17. In reaching this conclusion, I have taken into account the brief letters about the schooling of the two older children and fully accept that they have settled and are doing well at school. I bear in mind that they will have developed some friendships around school and the community, including at church. However, the primary focus of such young children is inevitably on the family unit, which has a cohesive cultural background of Nigeria, even though none of the children have ever lived in Nigeria. There will be no language difficulty and state schooling will be available to them, even though their parents say they have nothing to return to, no employment and thus will not be able to afford private school fees. Even though the eldest child has lived in the UK over 7 years and all three were born here, the case authorities indicate that 7 years from the age of 4 is likely to be more significant in development of private life than 7 years from birth. I also have to bear in mind that the first appellant came to the UK as a student with the intent to return to Nigeria on completion of her studies. In having further children born in the UK she must have understood that they took would be accompanying them back to Nigeria and thus as the children have grown they should have been aware that they would be returning eventually to Nigeria.
18. I have also taken into account the witness statements and oral evidence of the first appellant and her husband. I bear in mind that they claim to be settled in the community and at church, where her husband is a pastor. Obviously, they want the best for their children and are worried that they do not have accommodation or employment to return to, but both worked in Nigeria before coming to the UK and must have expected to return. The first appellant remains in contact with her mother and sister in Nigeria, whilst she has two sisters and an aunt in the UK. Her husband has a brother in Nigeria and no family in the UK. It follows that they have significant family and cultural ties to Nigeria. Whilst there may be difficulties in returning to Nigeria I am satisfied on the evidence taken as a whole that there are no insurmountable obstacles, or very significant obstacles, or very significant difficulties which could not be overcome.
19. In all the circumstances, putting all of this evidence together in the round, I find that it is reasonable to expect the eldest child to return with the rest of his family to Nigeria. I thus find that he does not meet the requirements of paragraph 276ADE, even though he has been in the UK for more than 7 years."
8. The background facts of this appeal are not in dispute. The first Appellant entered the United Kingdom as a student in July 2007 and her husband accompanied her. At that time she was pregnant and gave birth to her first child in the United Kingdom on 3 August 2007. Since then she has had two other children. Her leave was extended and last expired on 31 July 2013. A further application to remain as a Tier 4 (General) Student was refused on 10 October 2013 and she became appeal rights exhausted. This also applied to her husband and another child who were dependent upon her student leave. The two younger children have never been included in previous applications and have never had leave in the United Kingdom. In January 2015 the first Appellant and the three children made the applications for leave to remain which are the subject of the appeal heard by Tribunal Judge Pickup. Her husband did not make an application and as found by Judge Pickup was not "referenced at all in the applications" which relied on the Seven Plus Years' Residence of the eldest child so that the Secretary of State was unaware that he was still part of the family. He made a separate application in October 2015 for leave to remain which at the date of decision was undecided and which Mr Izevbizua confirmed today still awaited a decision.
9. The Appellants' applications were refused as they did not meet either Appendix FM or paragraph 276ADE and no compelling circumstances were found to justify granting leave to remain outside the Immigration Rules.
10. It is not in dispute that on the facts found the Judge correctly dismissed the appeal under the Immigration Rules albeit that it is suggested within Mr Izevbizua's skeleton argument that the Judge failed to apply paragraph 276ADE(iv) (amongst other things) in coming to his conclusion. The nub though of this challenge to the Judge's decision is a failure to deal with the best interests of the eldest child who by the time of the hearing was almost 9 years of age.
11. Quite simply that ground is not made out. I have deliberately set out above the Judge's findings. Amongst other things he acknowledges that he has to give consideration to Section 55 issues and that the best interests of each of the three children amount to a primary consideration pursuant thereto.
12. On the evidence that was before him the Judge was entitled to come to the conclusions that he did. For a child to be in the United Kingdom for a period in excess of seven years does not provide an automatic right to his or her appeal succeeding. That "clear line" approach amounted to the nub of Mr Izevbizua's submission. It is not one that I accept. The Judge must look at the totality of the family life of all the Appellants (in this appeal) and their family members. That is exactly what has been done. The Judge has subsumed within the Article 8 proportionality exercise the Section 55 issues and has taken account of the best interest of each of the three child Appellants. The Judge has adequately reasoned why he came to the conclusions that he did on findings that were open to be made on the totality of the evidence before him.
13. In dismissing the appeal under the Immigration Rules and on Article 8 grounds the Judge has not materially erred.
14. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
15. I do not set aside the decision.

No anonymity direction is made.

Signed Date: 12 December 2016

Deputy Upper Tribunal Judge Appleyard