Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22884/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31 October 2016
On 07 December 2016

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

Morian [B]
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr L Tarlow, Home Office Presenting Officer
For the Respondent: Mr E Fripp, Counsel, instructed by Solomon Solicitors

DECISION AND REASONS

1. The appellant, (hereafter the Secretary of States or SSHD) has permission to challenge a decision of First-tier Tribunal (FtT) Judge Nixon on allowing the appeal of the respondent (hereafter the claimant) on Article 8 grounds against a decision made by the SSHD in June 2015 refusing her leave to remain.

2. The SSHD advances four grounds of challenge. Although the FtT judge who granted permission did not consider all ground arguable, it is a matter for me whether I agree with his limitation and, for reasons that will become clear, I do not.

3. In the letter of refusal the Secretary of State identified a number of concerns regarding the credibility of the claim made by the claimant regarding her lack of ties and support network in Nigeria. e.g. on page 4 the SSHD stated that it was "not accepted that there would be very significant obstacles to your integration in Nigeria ... because you are over 30 years old and have spent the majority of your life in Nigeria, and have built up social and cultural ties there". Yet in his decision he appears to proceed on the basis that the appellant's and her husband's evidence was to be accepted without question, stating at para 18 that:

"However, leaving that issue on one side, I turn to the position of the older child, who is now 7 years old and has lived in the UK since her birth. I find that this length of residence is a significant factor to consider not least because she has never been to Nigeria and is entrenched in the education system in this country I note that, other than being born of Nigeria parents, she has no links to the country and will have fully integrated into the UK culture and way of life. I note that the appellant has no ties remaining in Nigeria, her mother having passed away and her sister living in America. Whilst I note that she does have a stepfather in this country I accept first that he is no blood relative but also that their relationship has been non existent since the appellant's imprisonment. Accordingly she will have no support network in the country and no assistance to settle back in to her country of origin as a single mother of two children."

4. Given that the claimant was a convicted criminal (although I entirely disregard the additional reference in the grounds to benefit fraud, as Mr Tarlow could provide no substantiation), I concur with the SSHD 's first ground that the judge was not entitled to accept the evidence of the claimant and her husband uncritically.

5. Given that I consider ground 1 is made out, it is not strictly necessary for me to address the other three grounds but for completeness I will do so briefly.

6. Ground 2 alleges that the judge failed to make findings on whether Mr Ibrahim would continue to provide the claimant with support back in Nigeria. Although I agree that the judge did not sufficiently factor in the significance of continuing support from Mr Ibrahim when assessing whether the return of the claimant with her children would give rise to very significant obstacles (the judge described in para 19 only identified "difficulties circumstances"), I cannot say the judge's finding was not within the range of reasonable responses. Hence I do not find this ground made out.

7. The third ground contends that the judge failed to make a proper rounded assessment of the best interests of the children. I consider this ground is made out as well. The established case law on the best interests of the child makes clear that the judge must not treat the issue of a child's best interests as a simply matter of providing as yes or no answer but must consider all factors for and against their interests being to remain in the UK rather than return to the country in question: see EV (Philippines) [2014] EWCA Civ 864 and Zoumbas v Secretary of State for the Home Department [2013] UKSC 74. Perusing the judge's treatment of this issue, it is not possible to say he made an adequate assessment. At the end of para 16 there is simply a statement that because they have a relationship with their father in the UK, "it would be detrimental to their best interests to remove them from having such frequent contact with their father'".

8. Nowhere in what follows is there any reference to the fact (which was one of the factors that had to be weighed in the balance when assessing best interests) that the children were familiar with Nigerian culture and traditions. It must also be said that when it came to the overall proportionality assessment, the judge appears to have left to one side the fact, mentioned in para 17 but then left hanging, that the claimant's immigration status was precarious. Given that the immigration status of both parents was precarious and so it was reasonable to expect both parents to live in Nigeria, it was perverse of the judge to assess the appeal on the basis of a need to permit the children to retain "frequent contact from their father" (para 16).

9. For the above reasons, I conclude that the judge materially erred in law and her decision is set aside.

10. In light of my finding that the judge erred in failing to base his assessment on properly made findings of fact, I cannot agree with Mr Fripp's suggestion that if I decided to set aside the decision (as I have) I should preserve the judge's findings of fact. In light of this error I consider the proper course is to remit the case to be heard by the FtT Tribunal, not before Judges Nixon or Dineen. Mr Fripp said that the claimant wished the case, if remitted, to be heard in the London region, not Birmingham. I shall instruct that this be arranged if at all practicable.

No anonymity direction is made.

Signed Date

Dr H H Storey
Judge of the Upper Tribunal 07 December 2016