IA/22715/2015

• Status of case: Unreported
• Hearing date: 6 Dec 2016
• Promulgation date: 8 Dec 2016
• Publication date: 3 Feb 2021
• Last updated on: 3 Feb 2021

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22715/2015



THE IMMIGRATION ACTS



Heard at : Field House
Decision Promulgated
On : 6 December 2016
On: 8 December 2016





Before

UPPER TRIBUNAL JUDGE KEBEDE


Between

PRECIOUS NKEMJIKA ONYEKWERE

Appellant
and


SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: In person
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer


DECISION AND REASONS

1. Following a grant of permission to appeal against the decision of the First-tier Tribunal dismissing the appellant's appeal against the respondent's decision of 28 May 2015 refusing his application for indefinite leave to remain on human rights grounds, it was found, at an error of law hearing on 8 November 2016, that the First-tier Tribunal had made errors of law in its decision. The decision was accordingly set aside on a limited basis.

Background to the Appeal

2. The appellant, a citizen of Nigeria born on 5 September 1968, claims to have entered the United Kingdom in 2003. He entered and remained without leave and worked using forged identities. He had two children with his former partner Ms Iheanacho, a daughter Blessing born on 13 December 2006 and a son Emmanuel born on 15 March 2008. On 24 January 2014 he made a human rights claim on the basis of family life with his children. On 17 February 2014 he was sentenced to 8 months in prison for possessing a false identity card and for obtaining pecuniary advantage by deception.

3. The appellant's human rights claim was refused on 28 May 2015. The respondent considered that he failed to meet the suitability requirements of paragraph R-LTRPT.1.1.(d)(i) with reference to paragraph S-LTR.1.5 and S-LTR.1.6 of Appendix FM of the immigration rules due to having produced and used false documents relating to multiple identities for the purpose of committing immigration offences. For that reason, and since he did not have sole responsibility for his children and they did not live with him, he could not meet the eligibility requirements in Appendix FM. With regard to paragraph 276ADE, the appellant also failed to meet the criteria due to the suitability provisions, and the respondent considered in any event that there were no very significant obstacles to his integration into Nigeria and that it was reasonable to expect his children to leave the UK with him. The respondent considered that the appellant's children's mother, with whom he was no longer in a relationship, could return with the children, as she only had leave to remain until 23 July 2015 on her EEA visa.

Appeal before the First-tier Tribunal

4. The appellant's appeal against that decision was heard in the First-tier Tribunal on 3 March 2016 by First-tier Tribunal Judge Farmer, who heard oral evidence from the appellant and the mother of his two children, Ms Iheanacho. The judge, having found that the appellant could not benefit from Appendix EX.1. since he could not satisfy the suitability requirements in Appendix FM, went on to consider whether it was reasonable to expect the children to leave the UK in the context of assessing whether there were any significant obstacles to the children relocating to Nigeria under paragraph 276ADE, and found that it was. The judge noted that the children's mother had a son, Daniel, from a previous relationship who was an EEA national and who resided with them. The judge found that the appellant could not meet the criteria in Appendix FM and paragraph 276ADE and that the appellant's removal would not breach Article 8 outside the immigration rules. She dismissed the appeal.

5. The appellant sought, and was granted, permission to appeal that decision to the Upper Tribunal.

Appeal in the Upper Tribunal

6. At a hearing on 8 November 2016 I found errors of law in the judge's decision and set it aside, as follows:

"DECISION AND REASONS

1. The appellant is a citizen of Nigeria, born on 5 September 1968. He has been given permission to appeal against the decision of First-tier Tribunal Judge Farmer, dismissing his appeal against the respondent's decision to refuse his application for leave to remain in the UK on human rights grounds.

2. The appellant claims to have entered the United Kingdom in 2003. He entered and remained without leave and worked using forged identities. He had two children with his former partner Ms Iheanacho, a daughter Blessing born on 13 December 2006 and a son Emmanuel born on 15 March 2008.On 24 January 2014 he made a human rights claim on the basis of family life with his children. On 17 February 2014 he was sentenced to 8 months in prison for possessing a false identity card and for obtaining pecuniary advantage by deception.

3. The appellant's human rights claim was refused on 28 May 2015. The respondent considered that he failed to meet the suitability requirements of paragraph R-LTRPT.1.1.(d)(i) with reference to paragraph S-LTR.1.5 and S-LTR.1.6 of Appendix FM of the immigration rules due to having produced and used false documents relating to multiple identities for the purpose of committing immigration offences. For that reason, and since he did not have sole responsibility for his children and they did not live with him, he could not meet the eligibility requirements in Appendix FM. With regard to paragraph 276ADE, the respondent considered that there were no very significant obstacles to the appellant's integration into Nigeria and that it was reasonable to expect his children to leave the UK with him. The respondent considered that the appellant's children's mother, with whom he was no longer in a relationship, could return with the children, as she only had leave to remain until 23 July 2015 on her EEA visa.

4. The appellant's appeal against that decision was heard in the First-tier Tribunal on 3 March 2016 by First-tier Tribunal Judge Farmer, who heard oral evidence from the appellant and the mother of his two children, Ms Iheanacho. The judge, having found that the appellant could not benefit from Appendix EX.1. since he could not satisfy the suitability requirements in Appendix FM, went on to consider whether it was reasonable to expect the children to leave the UK in the context of assessing whether there were any significant obstacles to the children relocating to Nigeria under paragraph 276ADE, and found that it was. The judge noted that the children's mother had a son, Daniel, from a previous relationship who was an EEA national and who resided with them. The judge found that the appellant could not meet the criteria in Appendix FM and paragraph 276ADE and that the appellant's removal would not breach Article 8 outside the immigration rules. She dismissed the appeal.

5. The appellant sought permission to appeal that decision to the Upper Tribunal on various grounds, including the failure by the judge to consider whether the EEA national child, Daniel, could be removed from the UK, and the implications of that on the removability or reasonableness of relocation of the appellant's two children and their mother. The grounds asserted further that the judge erred in her assessment of the best interests of the children and failed to consider section 117B(6) of the nationality, Immigration and Asylum 2002 Act.

6. Permission to appeal was initially refused, but was granted on 16 September 2016, on all grounds, but specifically on the ground that it was arguable that the judge had not considered reasonable in the context of section 117B(6).

7. The appeal came before me on 8 November 2016 and I heard submissions on the error of law. The appellant was not represented but appeared in person with Ms Iheanacho, his ex-partner and the mother of his two children. Evidence was produced that Ms Iheanacho had since been granted permanent residence in the UK and it was also claimed that the couple had reconciled, although that was, of course, not directly relevant to the error of law issue.

8. Mr Clarke submitted that it was clear from MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705 that the considerations in EX.1 and section 117B(6) were the same and that reasonableness had been properly considered by the judge, as had the best interests of the children.

9. Whilst the appellant's submission was that no proper consideration had been given to his close bonds with the children, Ms Iheanacho submitted that the judge had failed to consider that she was the primary carer of a German national child and how that affected her ability to return to Nigeria with her other two children.

10. In my view the judge's decision contains a material error of law. Ms Iheanacho raised a significant point which formed part of the initial grounds before the First-tier Tribunal, namely the implications of her being the primary carer of an EEA national child. That was a matter which the record of proceedings shows was raised by the appellant's legal representative in his submissions before the First-tier Tribunal but which the judge appears not to have addressed. Although the judge took Daniel into account when considering reasonableness of relocating to Nigeria, at [14], she did not give any proper consideration to the implications of him being an EEA national. The judge considered Ms Iheanacho's ability to return to Nigeria with her two children on the basis that she had no leave to remain in the UK, but yet also made a clear finding at [14] that she was the primary carer of an EEA national, which she failed to factor into the question of reasonableness of return. Had the judge given consideration to such relevant matters, it may well be that she would have concluded that it was not reasonable to expect the two children to leave the UK when their mother arguably had an entitlement to remain in the UK (which has since been confirmed in the subsequent grant of permanent leave) with her other EEA national child. Such a conclusion may then have had an impact on her decision on proportionality under Article 8 outside the rules, in particular with respect to the public interest consideration in section 117B(6) of the 2002 Act. It is relevant to note at this point that the judge considered reasonableness in the context of paragraph 276ADE, omitting to consider that the exclusion as a result of the suitability provisions was also relevant to paragraph 276ADE.

11. Accordingly, the judge's decision simply cannot stand and must be re-made. I therefore set aside the decision in respect to the conclusions on reasonableness of return and proportionality under Article 8.

12. Whilst Mr Clarke had no objection to the suggestion that the decision could be re-made on the evidence already available, it seems to me on reflection that the matter would benefit from further submissions being made, in particular in relation to section 117B(6) and the implications of the decision in MA (Pakistan). Furthermore, I note that the position of the two children is unclear, particularly given that their mother has now been granted permanent residence in the UK. Whilst they have been named in the refusal decision, the appeal is in the appellant's name only, and it is not clear if the respondent intends to pursue removal action against the children.

13. Accordingly the appeal will be listed for a resumed hearing for the decision to be re-made on the question of whether it is reasonable to expect the children to return to Nigeria and whether the appellant's removal is proportionate. I make the following directions:

Directions

No later than 14 days before the date of the next hearing:

(1) the respondent is to clarify the position of the two children in light of the grant of permanent residence to their mother

(2) any additional documentary evidence relied upon by either party is to be filed with this Tribunal and served on the opposing party

(3) The respondent and, if legally represented, the appellant are to file with the Tribunal and serve upon the other party a skeleton argument setting out their position in regard to section 117B(6) of the 2002 Act, with particular reference to the decision in MA (Pakistan)."

Resumed Hearing

7. The appeal then came before me again on 6 December 2016. The appellant remained unrepresented.

8. In response to my enquiry, Ms Iheanacho informed me that her son Daniel was in contact with his father and saw him on average twice a week. His father was a German national living in the UK. In response to Mr Melvin's questions, she said that her relationship with the appellant had resumed and he had moved in with her and the children in September 2016. They had discussed marriage but had not yet made any arrangements. It would be very difficult for her if the appellant were to leave the UK.

9. In his submissions, Mr Melvin submitted that the appellant could return to Nigeria and make an application for entry clearance from there. There was scant evidence about Daniel's nationality and about Ms Iheanacho being his primary carer. The appellant could not succeed under the immigration rules. It was not accepted that he had a genuine and subsisting relationship with Ms Iheanacho. There were no compelling circumstances outside the immigration rules. With regard to the reasonableness test and section 117B(6), Mr Melvin submitted that the children were entitled to permanent residence on the basis of their mother's residence and that it was difficult to assert that it would be reasonable for the family to go to Nigeria. However the appellant's interests did not outweigh the public interest, considering his lack of lawful basis of stay and his criminality, and on the basis that there was little to show that he played a full and active role in the children's lives. Mr Melvin disagreed with my interpretation of MA (Pakistan), as discussed below, but in any event submitted that it was not demonstrated that there was a genuine and subsisting relationship between the appellant and his children.

10. In response Ms Iheanacho submitted that there was a genuine and subsisting relationship between the appellant and herself and between the appellant and their children.

Consideration and findings

11. Mr Melvin sought to re-open the issue of Ms Iheanacho's role as the primary carer of an EEA national and the nationality of her son Daniel, submitting that there was evidence of neither before the Tribunal. However the First-tier Tribunal made a clear finding in that regard at [14], which the respondent did not seek to challenge in a cross-appeal and did not raise in the rule 24 response. At the error of law hearing on 8 November 2016, the Home Office Presenting Officer, Mr Clarke, did not seek to challenge those findings and indeed, on the contrary, specifically accepted that there was no dispute about Daniel's nationality. Accordingly it was not open to Mr Melvin to seek to re-open those matters.

12. It was, furthermore, clear that the judge's finding that the appellant could not meet the requirements of the immigration rules was preserved, although I made clear in my decision at [10] that that was on the basis that the appellant was excluded from Appendix FM and paragraph 276ADE(1) under the suitability provisions in S-LTR.1.5 and S-LTR.1.6.

13. The error of law identified in the judge's decision was in regard to the consideration outside the immigration rules, in relation to proportionality and section 117B(6). Accordingly, as specifically expressed in my decision of 10 November 2016 at [11], the basis upon which the decision in the appellant's appeal was to be re-made was in relation to proportionality, and in particular the question of whether it was reasonable to expect the children to leave the UK.

14. In MA, the Court of Appeal decided that the question of reasonableness did not simply focus on the child but incorporated a wider public interest consideration including the conduct of the applicant. At [45] of MA, Lord Justice Elias said "In my judgment, if the court should have regard to the conduct of the applicant and any other matters relevant to the public interest when applying the "unduly harsh" concept under section 117C(5), so should it when considering the question of reasonableness under section 117B(6)."

15. However, it seems to me, given the particular circumstances of this appellant's case and the family ties involved, that even taking account of the appellant's adverse immigration history and his criminality and any other adverse public interest factors, and despite any concerns as to the genuineness of the claim that the appellant and Ms Iheanacho have resumed their relationship, it still cannot be concluded that it would be reasonable to expect the children to leave the UK and go to Nigeria. The circumstances in this case differ from those in MA, which involved "standard", uncomplicated family units and where the children's ties to the UK were expressed in terms of length of residence, education and general integration. In this case, the children's mother has been granted permanent residence in the UK and is the primary carer of an EEA national child who in turn has regular contact with his EEA national father who is permanently resident in the UK. Accordingly there are strong family ties to the UK. It would plainly not be reasonable to separate the children from their mother, their primary carer. Neither would it be reasonable to expect their mother to accompany them to Nigeria to avoid separation, when she has permanent residence in the UK and is the primary carer of another child who cannot be expected to leave the UK, as an EEA national, or to leave his father.

16. It was for that reason that I indicated in my error of decision of 10 November 2016 at [10] that if the First-tier Tribunal Judge had factored into the question of reasonableness of return the finding that Ms Iheanacho was the primary carer of an EEA national child, "it may well be that she would have concluded that it was not reasonable to expect the two children to leave the UK when their mother arguably had an entitlement to remain in the UK (which has since been confirmed in the subsequent grant of permanent leave) with her other EEA national child." Indeed, Mr Melvin stated in his written submissions at [33] that "it may be unreasonable to expect the children to return to Nigeria with the appellant?" and at the hearing he accepted that since the children were entitled to permanent residence on the basis of their mother's status it would be difficult to assert that it would be reasonable for the family to go to Nigeria. Accordingly, it seems to me that the only conclusion can be that it would be unreasonable to expect the children to leave the UK.

17. Mr Melvin submitted that, despite such a conclusion, the appellant could nevertheless not succeed in his application and appeal, when taking account of the public interest factors which outweighed the reasonableness question, namely his criminality and adverse immigration history, the limited role he played in the children's lives and the fact that it was open to him to make an application for entry clearance from outside the UK. However, my understanding of the judgment in MA (Pakistan) was that those were matters which the Court found to be relevant to the question of reasonableness and not thereafter, once a finding on reasonableness had been made. That is clear from [21], [45] and [101]. It seems to me that once it has been established that it would be unreasonable to expect the children to leave the UK, section 117B(6) makes it clear that the public interest does not require removal. I do not agree with Mr Melvin's submission that section 117B(6) is not a self-contained provision, once unreasonableness has been established. That is made clear in MA at [17] to [19] as follows:
17. "Subsection (6) falls into a different category again. It does not simply identify factors which bear upon the public interest question. It resolves that question in the context of article 8 applications which satisfy the conditions in paragraphs (a) and (b). It does so by stipulating that once those conditions are satisfied, the public interest will not require the applicant's removal. Since the interference with the right to private or family life under article 8(1) can only be justified where there is a sufficiently strong countervailing public interest falling within article 8(2), if the public interest does not require removal, there is no other basis on which removal could be justified. It follows, in my judgment, that there can be no doubt that section 117B(6) must be read as a self-contained provision in the sense that Parliament has stipulated that where the conditions specified in the sub-section are satisfied, the public interest will not justify removal. It is not legitimate to have regard to public interest considerations unless that is permitted, either explicitly or implicitly, by the subsection itself.
18. Ms Giovannetti QC, counsel for the Secretary of State, argued otherwise. She contended that there may be circumstances where even though the provisions of paragraphs (a) and (b) are satisfied and the applicant is not liable for deportation, the Secretary of State may nonetheless refuse leave to remain on wider public interest grounds. But as she had to accept, that analysis requires adding words to subsection (6) to the effect that where the conditions are satisfied, the public interest will not normally require removal, because on her approach, sometimes it will. I see no warrant for distorting the unambiguous language of the section in that way.
19. In my judgment, therefore, the only questions which courts and tribunals need to ask when applying section 117B(6) are the following:
(1) Is the applicant liable to deportation? If so, section 117B is inapplicable and instead the relevant code will usually be found in section 117C.
(2) Does the applicant have a genuine and subsisting parental relationship with the child?
(3) Is the child a qualifying child as defined in section 117D?
(4) Is it unreasonable to expect the child to leave the United Kingdom?
20. If the answer to the first question is no, and to the other three questions is yes, the conclusion must be that article 8 is infringed."
18. Mr Melvin, in response, submitted that it was not accepted that the appellant had a genuine and subsisting parental relationship with his two children and that, in accordance with the findings of the First-tier Tribunal Judge at [17], the contact which he had with the children after coming out of prison in May 2014, had been made with the purpose of bolstering his claim rather than being genuine. However, as with his previous arguments, I do not consider that that is an argument open to him to make at this stage. The refusal decision of 28 May 2015 had not raised any issue on the genuineness of the relationship between the appellant and his children and, on the contrary, at [21], [33] and [34], proceeded on the basis that there was a relationship. Likewise, whilst Judge Farmer at [17] rejected the appellant's claim to have had a full and active role in the children's lives prior to coming out of prison, she did not at any point make a finding that there was no current genuine and subsisting relationship. Neither was such an issue raised by the Presenting Officer at the error of law hearing, who was content, at that time, for the decision to be re-made on the evidence already available to the Tribunal, which did not include any challenge to the appellant's claimed relationship with his children. In any event I found the evidence given by Ms Iheanacho as to the relationship between the appellant and his children to be a credible one.

19. Accordingly, applying section 117B(6) as set out at [19] and [20] of MA, and on the basis that the answers to the four questions posed are that the appellant is not liable to deportation, he has a genuine and subsisting parental relationship with children, the children are qualifying children and it is unreasonable to expect the children to leave the UK, the conclusion must be that Article 8 is infringed. Whilst I understand and appreciate the points made by Mr Melvin in regard to the appellant's ability to return to Nigeria to apply for entry clearance, his criminality and his adverse immigration history, I have to have regard to the statutory provisions approved by Parliament in section 117B(6), according to which there is only the one conclusion and which must, therefore, constitute the compelling circumstances required to justify a grant of leave outside the immigration rules in accordance with the guidance in The Secretary of State for the Home Department v SS (Congo) & Ors [2015] EWCA Civ 387.

20. Accordingly, the appellant's appeal must be allowed on the basis that the appellant's removal to Nigeria would be disproportionate and in breach of Article 8 of the ECHR.


DECISION

21. The original Tribunal was found to have made an error of law. I re-make the decision by allowing the appeal on Article 8 human rights grounds.


Signed Date
Upper Tribunal Judge Kebede