Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26612/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 February 2016
On 7 April 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE PEART

Between

MRS patricia nkire
(anonymity direction NOT MADE)

Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Singh of Counsel
For the Respondent: Mr Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Nigeria. She was born on 20 May 1950. She appealed against the respondent's decision to refuse her application for leave to remain dated 11 June 2014.
2. In a decision promulgated on 2 September 2015, Judge H Clark (the judge) allowed the appeal. The judge found the appellant satisfied the Immigration Rules because it would be unduly harsh to expect her to return to Nigeria with or without her husband and without any family or social support. Further, whilst there was a strong public interest in the maintenance of effective immigration controls, the judge was satisfied that requiring the appellant to return to Nigeria would be a disproportionate interference with her family life with Mr Nkire, in circumstances where there were insurmountable obstacles to them pursuing a family life together in Nigeria. See [12] below.
3. The grounds claim the judge failed to give adequate reasons for her findings on material matters and made a misdirection of law on a material matter. In particular the judge failed to give adequate reasons for finding that it would cause very serious hardship to the appellant to continue her family life in Nigeria.
4. The judge found that the appellant had a lack of any security and support but failed to give a reason why the appellant's son who worked as a doctor in Canada and the appellant's daughter who had received an international posting from her employer to Switzerland (see [19] of the decision) would not provide financial report bearing in mind that she found at [24] of her decision that the two children could help her out financially if she had to re-establish herself in Nigeria. The judge reported that the appellant's spouse would shortly be retiring in the United Kingdom. There was no reason why the ability to draw down on his pension or use rental income from their property in London could not be accessed to support their living expenses in Nigeria. See [33] of the decision.
5. In finding very serious hardship, the judge failed to give adequate reasons in the light of the fact that the appellant's spouse was able-bodied and sufficiently well to maintain employment supporting vulnerable people here and would have access to his healthcare needs in Nigeria. See [29] and [30] of the decision.
6. The respondent relied upon Agyarko [2015] EWCA Civ 440. In particular at [45] and [50].
7. The grounds claimed that the judge erred by conflating the tests for insurmountable obstacles under EX.1.(b) to Appendix FM by importing "reasonableness" from the jurisprudence at [32] of her decision and so made a misdirection of law on a material matter. See Agyarko at [21].
8. Judge P J G White granted permission to appeal against the judge's decision on 7 January 2016. He found the judge arguably erred for the following reasons:
(a) The central issue in the appeal was whether the appellant met EX.1.(b). See [10] of the decision.
(b) The judge was arguably wrong in law by equating the test of "reasonable to expect" to "insurmountable obstacles". See [32] of the decision. Agyarko was authority for stating that the phrase "insurmountable obstacles" was significantly more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the United Kingdom.
(c) It was arguable that having acknowledged that "no individual factor would amount to an obstacle which could not be overcome", the judge failed to give adequate reasons for her finding that "a forced return would cause them both very serious hardship". See [34] of the decision.
Submissions on Error of Law
9. Mr Whitwell relied upon the grounds. The judge erred because she had equated reasonableness with insurmountable obstacles. The test of insurmountable obstacles was more stringent than reasonableness. Mr Whitwell relied upon Agyarko.
10. Mr Singh relied upon his skeleton argument. The decision had to be read as a whole. The judge made it clear at [10] of her decision that she knew the test was insurmountable obstacles. She had set out the relevant Immigration Rules. The judge accepted the appellant's evidence that she had no close family members in Nigeria. See [24] of the decision. The judge had said at [34] of her decision that although no individual factor would amount to an obstacle which could not be overcome, in light of both the appellant's and her husband's ages and stages in life and the lack of any security or support in Nigeria, a forced return there would cause them very serious hardship. The judge went on to say that she considered it unduly harsh to expect the appellant to return to Nigeria without her husband and without any family or social support.
11. The judge made findings that supported her decision:
(a) At [24] the judge found the appellant would have nowhere to live in Nigeria and no means to purchase accommodation there.
(b) At [24] of the decision the judge found that whilst the appellant had cultural ties to Nigeria, she would have no practical or emotional support there.
(c) At [29] of the decision the judge found the appellant's husband had a number of health issues, including diabetes and hypertension. He had suffered a partial stroke.
(d) At [30] of the decision the judge took into account the couple's age. The appellant's husband was about to retire.
(e) At [30] of the decision the judge said that whilst the appellant's husband had been currently working, supporting people with housing and other needs, he had worked as a computer analyst in Nigeria. He changed his occupation due to health reasons. She found he was of an age where, close to retiring, he had been working in an occupation in which he had never worked in Nigeria and such employment was unlikely to be immediately replicable in Nigeria.
(f) At [31] of the decision, the judge found the appellant's husband had lived in the United Kingdom for the last seventeen years and was head of the extended family here.
(g) At [33] of the decision the judge found that neither the appellant nor her husband had family in Nigeria or property there.
12. Read as a whole, the decision revealed no error of law. If there was any error, it was not material. It was clear that the judge had correctly interpreted insurmountable obstacles as very significant difficulties which could not be overcome or very serious hardship.
Conclusion on Error of Law
Templates
13. Whilst not a material error, the judge:
(a) incorrectly recited at [2] of her decision that the respondent had directed the appellant's removal under Section 47 of the 2002 Act. It is always worth checking the decision itself rather than relying upon a template as this was a Section 10 removal under the 1999 Act; the appellant was an overstayer.
(b) referred to Article 8, Razgar and s.117 at [11] - [13] none of which were applicable to this appeal as the judge correctly said at [36] of her decision.
Error
14. I find the judge carried out an inadequate assessment and did equate reasonableness with insurmountable obstacles. It would have assisted her to consider the appellant's circumstances in terms of Agyarko.
15. At [45] of Agyarko, Sales LJ said:
"The Upper Tribunal held that it could not be said that there were insurmountable obstacles to family life continuing with Mr Ijiekhuambhen in Nigeria, within the meaning of EX.1(b) of Appendix FM. Judge Craig referred to the letter of support from Mr Ijiekhuambhen and observed, 'these factors could not possibly persuade any decision-maker that there were insurmountable obstacles to family life continuing in Nigeria." ([8]). He went on at [9] as follows:
"The fact that the applicant's partner would have to change jobs is not an insurmountable obstacle and nor is the suggestion, as advanced, that there are fake drugs circulating in Nigeria which the partner does not wish the applicant to take. Were there an Article 3 claim open to the applicant, no doubt it would be made. As I understand the argument now advanced, it is that the applicant is undergoing fertility treatment in this country which she wants to continue. That is not an insurmountable obstacle to the couple going to Nigeria if they choose to do so. It is a matter for them; nobody is making a British citizen leave this country but if this couple want to enjoy family life together in this country they are only entitled to do so if they satisfy the requirements within the Rules, which in this case they do not."
16. Sales LJ went on to say at [50]:
"First, as regards the appeal in respect of refusal of leave to remain under the Rules, in view of the stringency of the test in EX.1(b) (see above), I agree with Judge Craig's assessment that the factors relied upon by Mrs Ikuga could not possibly persuade any decision-maker that there were insurmountable obstacles to family life continuing in Nigeria, within the meaning of that provision."
17. See also [21] of Agyarko:
"The phrase 'insurmountable obstacles' as used in this paragraph of the Rules clearly imposes a high hurdle to be overcome by an applicant for leave to remain under the Rules. The test is significantly more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the United Kingdom."
18. The judge made various factual findings in her decision which are of significance in terms of the claimed error of law:
(a) "The appellant clearly has cultural ties to Nigeria" [24].
(b) The appellant has spent "......her formative years and the majority of her adult life there" [25].
(c) "The appellant and her husband have been married for 40 years, albeit they lived in different countries for nearly ten years between 1998 and 2007" [26].
(d) "Both the appellant and Mr Nkire must have been aware, given their immigration histories, that either or both of them were liable to be removed to Nigeria in the years between 2007 and 2011 when they re-established their family life" [27].
(e) "Her husband and two children could help her out financially to some extent if she had to re-establish herself in Nigeria" [24].
(f) "None of his health conditions are such that they could not be managed and treated in Nigeria as confirmed by the respondent's Country of Origin Information Report dated 14 June 2013" [29].
(g) Mr Nkire "although he does not have an exemplary immigration history, has indefinite leave to remain in the United Kingdom since 2011" [31].
19. The judge went on to say at [34] of her decision that in drawing the strands together, she would allow the appeal "......in light of both the appellant's and Mr Nkire's ages and stages in life and lack of any security or support in Nigeria, as outlined above, a forced return there would cause them both very serious hardship" before ostensibly allowing the appeal under EX.1.(b) of Appendix FM.
20. Agyarko sets a high threshold. I do find the judge equated reasonableness with insurmountable obstacles and erred in law as a result. There were various significant issues which the judge touched upon without adequate analysis, in particular, the fact that she said at [24] that the appellant's husband and two children could help her out financially, but inconsistently said that the appellant would have nowhere to live in Nigeria and no means to purchase accommodation there. The evidence before the judge was that the appellant and her husband had property in the United Kingdom, jointly owned by their daughter who lived in Switzerland. That was significant in terms of funding the return of the appellant and/or Mr Nkire to Nigeria whether in terms of a sale to purchase property or rental income to fund accommodation there.
Decision
21. The judge made a material error of law in allowing the appeal. I set aside her decision which will be re-made in the First-tier following a de novo hearing.
Anonymity direction not made.

Signed Date 10 March 2016

Deputy Upper Tribunal Judge Peart