Tribunal decisions

The decision

IAC-FH-CK-V3

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/24366/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 November 2016
On 05 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

mr E B O
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr A Chakmakjian of Counsel, instructed by Irving & Co Solicitors
For the Respondent: Mr S Walker, a Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, a national of Nigeria, appealed two decisions of the Respondent, the first, dated 10 June 2014, to revoke an EEA residence card and refuse admission. Secondly a decision of 22 May 2015 to deport the Appellant under Section 32(1) of the UK Borders Act and Section 32(4) and Section 3(5)(a) of the Immigration Act 1971. In the hearing before me it further became clear that there was another decision by the Respondent (the third Decision) made on 24 July 2014 involving the cancellation of leave. But the matter did not form part of the considerations of the judge's decision that has subsequently been heard.

2. The appeal against the first and second decisions came before First-tier Tribunal Judge I Howard (the judge), who on 24 June 2016 with significant brevity allowed the appeal in connection with the decision of 10 June 2016 albeit that its purpose and consequences were limited because the matter was no longer a basis on which the Appellant was seeking to remain. Nevertheless the judge went on to consider the deportation decision which was made as a consequence of the Appellant having been convicted and sentenced to fifteen months' imprisonment on 27 August 2014 for the offence of possession of counterfeit currency (US dollars).

3. The judge's consideration of that matter is contained within [D 22 to 35] of the decision [D].

4. It is said that the judge had effectively failed to consider the significance and circumstances of the conviction which bore on the question of the assessment of the public interest and the proportionality of removal. Further it was argued that there had not been an assessment of the best interests on the Appellant's children and I think to a degree his wife's interest, all of whom are British citizens by one means or another.

5. It was further said that an OASys analysis of the limited risk that the Appellant posed was not taken into account by the judge.

6. The fact of the matter is that the decision is not full in its analysis and in particular the issue of the best interests of the children might seem to have been somewhat subsumed in a general view that so long as the family remain together they could remove together if the Appellant's wife and children wish to: They could maintain that family unit abroad and that it would not be on the evidence unduly harsh for that to happen because the family would be one, they had roots in Nigeria, the children may not have been there but nevertheless there were familial attachments and they could make a life there, taking account of course of the fact that the benefits of being British nationals would at least not be available to them in Nigeria albeit the family would be together.

7. One can on the first reading of the decision feel some sympathy with some of those points but it seems to me that the judge was entitled to take the view that public interest properly justified removal. In the analysis of the children's interests referred to in the decision in a number of places, particularly D 25 and 32, it seemed to me that there was enough to show that there had been consideration of the involvement of the parents in bringing up the children, the role they both played, the fact that they were good parents and that there was a close bond between the children and the parents. All those matters were for the judge to assess and it is not for me to find an error of law based upon the view I might have formed of the evidence which the judge heard.

8. I do not have the benefit of having heard the witnesses who gave evidence and to that extent the view that the judge formed of the matter was entirely for him. Accepting as he did the extent of connections that the family as a whole had in Nigeria. It cannot be contradicted that for the elder child, who had been in school for what seems to me likely for about two or three years, that the effects of removal would be noticeable and to a degree upsetting, leaving behind friends, school and acquaintances in the UK.

9. However, it does not seem to me on the evidence that was before the judge that there was any assessment made by an educational psychologist or a specialist social worker to show that there were any other significant adverse effects likely to arise for either child by the family's removal back to Nigeria. Instead the judge must have done the best he could on the material that was available to him. For those reasons I find that whilst the judge's analysis might not be the way I might have drafted the decision it does not seem to me on the material that he had and as reported in the decision, bearing in mind there is no particular criticism that he did not take into account relevant evidence. The criticism is to the weight he gave to it it seems to me that the judge made no error of law and that were another Tribunal to look at it the same would likely to be arrived at the same conclusion: Even if the reasons given were fuller and more to the point.

10. I further considered the Article 8 ECHR claim for the judge, having considered the matter [D 36 and 38], concluded that Article 8, I think, was not engaged. The presentation on it is slightly confusing but on the face of it, other than the children's age, the nationality of the Appellant's wife and children and their circumstances in growing up as they have done thus far in the United Kingdom are not of the kind of exceptional or compelling circumstances that would justify a consideration of Article 8 outside of the Rules.

11. The matter is slightly confused because [D 39] the judge says: "So it is that on the particular facts of this case as I have found them I am not satisfied that the decision of the Respondent would engage the Article 8 rights of the Appellant, his wife or children".

12. It seems to me that that could be no more than a general recognition that Article 8 ECHR may be engaged but in effect the judge was finding that the Respondent's decision is Article 8 compliant come what may. In the circumstances I find no error of law by the judge.

13. I was reminded, on behalf of the Appellant, that there was inevitably a tension between the case law which seeks to give the best interests of the children the weight that it is a matter of primary importance, but not paramount importance, and the public interest in the removal of the Appellant. It is said by the Appellant in effect that if the best interests of the children are that they should remain as a family unit, the children should be brought up by their mother and father and the mother and the children are British nationals the only reasonable conclusion can be that the Appellant ought to be staying with them in the UK where they can reap the benefits of being UK nationals.

14. I agree there is a tension between those circumstances and it was of the kind discussed and considered in EV (Philippines) [2014] in that on one hand plainly the children's best interests must be considered and given significant weight but on the other hand the consideration of that should not simply be driven over by the effects of a parent's criminality. It is also the case that the children's interests as British nationals are not, as is sometimes referred to, a "trump card" but plainly a matter to which considerable weight should be given.

15. It seemed to me that [D 32 and 35] the judge perhaps felt without the need that there should not necessarily be a major discussion of that tension. Ultimately on a fair reading of the decision, particularly [D 34], the position is that the judge was looking at the impact on the children and was making an assessment as to whether it would be unduly harsh. Unduly harsh can only be understood in the sense of its impact on the children's best interests of which the judge was plainly aware. Accordingly it seemed to me that in this respect the judge has done enough to deal with the issue and in particular the impact on their best interests were they and their mother to remove with their father to Nigeria. The fact is that if they did not wish to move that is undoubtedly an unfortunate consequence of the events that have been brought upon them by the criminality of the Appellant but that of itself does not determine that he should not be removed. For these reasons therefore I conclude that the judge did sufficiently consider the matter and justified his view that the impact on the family through removal was not of a kind that rendered the decision disproportionate.

16. I for my part might not have formed that view it is not for me to simply rewrite a decision because I think the decision should have gone a different way.

NOTICE OF DECISION
The appeal is dismissed.

ANONYMITY
An anonymity order was made and should be continued.

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 his 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.

Signed Date 22 December 2016

Deputy Upper Tribunal Judge Davey

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 22 December 2016

Deputy Upper Tribunal Judge Davey