Tribunal decisions

The decision

IAC-BH-PMP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26606/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 5th December 2016
On 18th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

EOI
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
1. As the subject matter of this appeal involves children I make the anonymity direction which appears at the end of this decision.
Background
2. In a renewed application, Upper Tribunal Judge Perkins gave permission to the appellant to appeal against the decision of Judge of the First-tier Tribunal Row who dismissed the appeal on human rights grounds against the decision of the respondent taken on 9th July 2015 to refuse leave to remain on the basis of private and family life under Article 8 of the 1950 Human Rights Convention and the Immigration Rules. The appellant is a citizen of Nigeria born on 24th September 1986. She came to the United Kingdom on 2nd November 2009 as a visitor with a visa valid until 24th February 2010. She then overstayed.
3. Although Upper Tribunal Judge Perkins gave permission on all grounds, he noted that the decision of the First-tier Tribunal appeared to be based on the premise that it was reasonable to expect a child who is a British citizen to leave the United Kingdom. He thought it arguable that it was not reasonable for such a child to leave her country of nationality.
4. The grounds contend that the decision of the First-tier Tribunal was made in "full awareness" of family proceedings concerning the daughter of the appellant's partner born on 15th July 2012. The appellant's partner's child is claimed to have attained British nationality through her mother, a Lithuanian national who is a naturalised British citizen. The grounds also state that there is a final child arrangements order of "15th November", although the year of that order is not given nor has a copy been provided.
5. The grounds argue that the judge did not make findings as to the respondent's discharge of her duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 or give adequate consideration to the best interests of the two children involved in the appellant's partnership by following the guidance of the Supreme Court in ZH (Tanzania) [2011] UKSC 4. The judge also failed to consider the consequences of the British citizen mother of the partner's child losing contact with her child.
The Hearing
6. At the hearing there was no appearance by or on behalf of the appellant. Notice of the hearing had been sent to her at her last recorded address and to representatives, 1st Call Immigration Services. The notice was sent on 9th November 2016 and had not been returned in the post from either destination. I was satisfied that it was in the interests of justice to proceed with the hearing applying the provisions of paragraph 38 of the 2008 Upper Tribunal Procedure Rules.
7. Mr Bates helpfully handed to me a copy of his typed notes for submission. In these he points out that it was conceded at the First-tier hearing that the Immigration Rules could not avail the appellant in the circumstances of the appeal. The judge had therefore considered Article 8 issues outside the Rules applying, amongst other things, Section 117B of the Nationality, Immigration and Asylum Act 2002 (as amended). The judge had correctly identified the issue as that arising under Section 117B(6)(b) as to whether it would be reasonable to expect the partner's child to leave the United Kingdom. The child's father, a Nigerian national, was not settled in the United Kingdom. The judge commented on the evidence concerning the existence of a Family Court order in relation to the partner's child (paragraph 23) but no evidence was adduced to show that any court order existed and no adjournment was requested by representatives in order to adduce such evidence. At paragraph 24 the judge identified three potential outcomes to the appeal before reaching conclusions and noting (paragraphs 37 and 39) the inadequacy in evidence and the absence of anything to suggest that the partner's child's mother was still in the United Kingdom. The findings were therefore open to the judge on the evidence and for the cogent reasons given. Further, no reliance was placed by the appellant at the hearing on the "cultural/racial identity" of the child as the grounds suggest would have been appropriate.
Conclusions
8. The appellant was represented by Counsel at the First-tier hearing. As the First-tier judge comments, there was an absence of supporting evidence in relation to any Family Court arrangements for the partner's child, there being no more than assertions about the existence of unsupervised contact arrangements. Representatives could have produced such evidence but chose not to. The judge cannot, therefore, be criticised for basing a decision on the evidence adduced at the hearing and Counsel's unsupported submissions.
9. Despite the absence of such evidence the judge, nevertheless, gave comprehensive consideration to the best interests of both children involved in the relationship, acknowledging that the appellant and her partner had been living as a family with the two children since August 2013. Of some significance was the information which the judge takes into consideration from paragraph 12 onwards of the decision, relating to the history of the partner's relationship with the mother of his child and her serious physical abuse of that child which is documented in a Core Assessment Report by Nottingham City Council. That report only suggested that there could be supervised contact between mother and child. The judge carefully evaluates the options for all family members in paragraph 24 noting that neither the partner nor his child could be required to leave the United Kingdom. The best interests of both children are considered against the background of all available evidence, the judge reaching the conclusion, open to him, that the best interests of the children would be served by remaining in the current family unit whether the family was in the United Kingdom or in Nigeria from where both appellant and partner originate. The judge emphasises that -
"Few would seriously suggest that [the partner's child] should be removed from her present family and placed with [her mother]. She had to be separated from her to avoid significant harm."
The judge then devotes five paragraphs to consideration of whether or not it would be reasonable to expect the partner's child to leave the United Kingdom applying the provisions of Section 117B(6)(b) of the 2002 Act before reaching the conclusion, based on all available evidence, that it would be reasonable.
10. Whilst there is no specific reference, in the decision, to the respondent's obligations under Section 55, examination of all relevant issues relating to the welfare of both children is implicit in the careful analysis of the best interests of the children.

Notice of Decision
The decision of the First-tier Tribunal does not show an error on a point of law and shall stand.

Anonymity

The First-tier Tribunal made an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008):

Signed Date

Deputy Upper Tribunal Judge Garratt