Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26882/2014

THE IMMIGRATION ACTS

Heard at Birmingham
Sent to parties on:
On 14 November 2016
On 25 November 2016

Before

UPPER TRIBUNAL JUDGE HEMINGWAY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

MRS ABISOLA [O]
(Anonymity DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr D Mills ([Senior Home Office Presenting Officer)
For the Respondent: Ms J Elliott-Kelly (Counsel)

DECISION AND REASONS

1. The appellant in these proceedings is the Secretary of State for the Home Department (hereinafter the "Secretary of State"). The respondent in these proceedings is Mrs. Abisola [O] (hereinafter "the claimant "). She is a national of Nigeria and was born on 12 November 1979. No anonymity direction has been sought or made.
2. On 9 January 2014 the Secretary of State made a decision refusing to vary leave to enter or remain and deciding to remove the claimant from the United Kingdom. In a determination dated 31 August 2013 the First-tier Tribunal (Judge S D Lloyd hereinafter "the Judge") allowed the claimant's appeal against that decision. However, after a hearing of 2 September 2016 I set aside the Judge's decision on the basis that she had applied an incorrect legal test but I did preserve all of the factual findings contained in the determination.
3. By way of background, the claimant had entered the UK on 8 May 2010 as the dependent of her husband (now very sadly deceased) who had been granted a visa on the basis of his employment in the UK. He passed away in tragic circumstances on 9 February 2011, his having committed suicide, and he is buried in the UK. Shortly after his passing, in fact on 21 July 2011, the claimant gave birth to a daughter. On 5 July 2012 she applied on behalf of herself and her daughter for leave to remain on the basis of private and family life. It is that application which has given rise to this appeal. There have, however, been some further factual developments since I set aside the decision of the First-tier Tribunal. Most unfortunately, that has been in the form of further tragedy for the claimant and her family members. She has a sister in the UK, a British Citizen, who is now part of her household. Very unfortunately, her sister's son, who was a student, has passed away unexpectedly. It is said that the two sisters have afforded emotional support to each other with respect to the above events.
4. As I say, when I set aside the decision of the Judge I did preserve all of the factual findings she had made. It is right, therefore, that I should set those out, in full, in this determination. The Judge said this;
"Private and family life under the Immigration Rules
17. It is not averred by the Appellant that she meets the requirements of Appendix FM. Her daughter is four years old and is not a British citizen. She does not have a partner in the UK.
18. With regard to private life and paragraph 276ADE, Bossadi (paragraph 276ADE; suitability; ties [2015] UKUT 42 (IAC) sums up the issue. "The requirement set out in paragraph 276ADE(vi) (in force from 9 July to 27 July 2014) to show that a person 'is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK', requires a rounded assessment as to whether a person's familial ties could result in support to him in the event of his return, an assessment taking into account both subjective and objective considerations and also consideration of what lies within the choice of a claimant to achieve."
19. In this case, the Appellant's parents have both died. She denies any other family of source of support in Nigeria, which I accept given that her evidence was credible and there is nothing to contradict her assertions. She has also provided documentary evidence of her father's death, which is not disputed.
20. In addition, her evidence is that she has a strong emotional tie to her husband's grave and it has formed an important part of teaching her daughter about her father. In the refusal letter, it was suggested that the body could be exhumed and moved to Nigeria. In evidence the Appellant clearly regarded this idea as abhorrent and that it would create further problems in connection to her husband's suicide, which I have outlined below. At the hearing Mr Evans retreated from the Respondent's position, at least to some extent, and confirmed that the point was not being strongly pursued.
21. Although these are relevant factors, by themselves there are not enough, given that she lived in Nigeria into adulthood, studying and working there. However, she has also given evidence in respect of the particular position in respect of suicide in Nigeria. In her statement she firstly describes the reaction of her husband's family, saying they "showed no understanding to me, they have threatened and blamed me for the incident as they believe that I should have had some indication or done more since I was home on the date or probably I was not vigilant enough?as stated earlier they have limited education and superstitions and fetish practices are common and they have continued to threaten me" Whilst no doubt this is traumatic, again it may not be enough by itself. However, one of the threats, as I understand it, is that they have threatened to remove her daughter from her. Her family life with her daughter is therefore at some risk.
22. She also goes on, "I am terrified of the thought of returning to Nigeria due to the social and cultural perception of a suicidal act and the attending implication on me as his spouse and on my child?more so it is taboo for an individual to commit suicide?"
23. The Appellant has also provided some news articles, which although of modest evidential value, do generally support her claim in respect of Nigerian attitudes to suicide and the problems this can cause. The Respondent has not offered any objective country information to counter this.
24. In contrast, the Appellant's sister is in the UK as a British citizen, she has a strong social and religious network of support, and her daughter, whose best interests and welfare are a primary consideration, whilst still relatively young, has started school and is entering into an important stage of her social and cultural development. I find this is likely to be damaged if she is returned to Nigeria with her mother and they find themselves as isolated as they expect to be. Other than her mother, the Appellant's daughter has no tie to Nigeria at all.
25. Taking all of this together, I accept that her cultural and social ties to Nigeria have been damaged by the nature of her husband's death. Having already accepted that she has no remaining family ties in Nigeria, I find that 276ADE(vi) is met and allow the appeal under the rules."
5. I decided the Judge had erred in law because I was persuaded that she had been obliged to consider the appeal under the version of the immigration rules in existence at the date of hearing rather than those in existence at the date of decision. Put simply, an earlier version of paragraph 276ADE required the claimant to demonstrate that she had "no ties" to Nigeria. However, from 28 July 2014 the test required her to demonstrate that there would be "very significant obstacles to integration" if she were to have to return to her home country. It seemed to me that the tests were somewhat different in nature such that it could not safely be said that the Judge would not inevitably have reached the same view had she applied what I considered to be the correct test following what had been said by the Court of Appeal in YM (2014) EWCA Civ 1292.
6. The hearing concerned with the remaking of the decision took place before me on 14 November 2016. Representation was as stated above. Both the claimant and her sister Olubummi Afolake Odeseye were in attendance and were prepared to give oral evidence. I had been provided with further documentation on the claimant's behalf which included an updated witness statement from each of them. However, Mr Mills indicated that what was said in the updated statements would not be the subject of any dispute before me and so it was decided that there was not, in fact, any requirement for further oral evidence.
7. Accordingly, I simply heard submissions as to how I should remake the decision. Ms Elliott-Kelly, for the claimant, urged me to conclude that there would be very significant obstacles to integration or re-integration such that the requirements of the immigration rules were met. She said that whilst she was aware that under the new appeals system appeals can only be brought on human rights grounds, any such positive finding as to the rules would translate into success on the basis of article 8. Insofar as that might be thought to be a difficulty for the claimant Mr Mills did not argue that the claimant would not succeed if she were to meet paragraph 276ADE applying the post-28 July 2014 version of that paragraph.
8. Ms Elliott-Kelly also contended that even if I were to find the requirements of the rules were not met, the appeal should succeed outside of the rules. She stressed, amongst other things, the lack of any criminality, the findings regarding the claimant's late husband's family and their hostility towards her, the threats they had made to remove her daughter from her, the lack of any family to help the claimant upon return to Nigeria, the taboo in Nigeria surrounding suicide, the claimant's illness (she has a form of cancer but happily that is currently in abeyance), her wish to continue to visit her husband's grave and considerations regarding the best interests of her child. She also argued that family life within the meaning of article 8 had been established between the claimant and her sister given the support they had provided for each other. Turning to section 117B of the Nationality, Immigration and Asylum Act 2002, she pointed out that the claimant is able to speak English and has supported herself without recourse to public funds.
9. Mr Mills, in what was a very fair submission, acknowledged the force of the arguments both with respect to the immigration rules and with respect to article 8 outside the rules. Nevertheless, he pointed out that paragraph 276ADE sets a high threshold in view of the term "very significant obstacles". As to article 8 outside the rules, he acknowledged that certain features of the case could properly be described as compelling. He pointed out that the claimant clearly had had free health care provided by the National Health Service notwithstanding that otherwise she had been financially supporting herself but did conclude by suggesting I might be able to properly conclude that the appeal should succeed.
10. I am grateful to both representatives who have provided me with much assistance.
11. It is effectively agreed between the parties that if I am to conclude that there would be very significant obstacles to integration if the claimant were to have to return to Nigeria then she would succeed. Accordingly, that is the place for me to start.
12. I have preserved a number of findings as indicated and they have been set out above. I accept that the test to be applied is stringent. Mr Mills is right about that. However, I have concluded that, on the individual facts of this case, that test is satisfied. That is a consequence of an accumulation of various factors. In particular, though, both the claimant's parents have passed away and she does not have any other family in Nigeria who can provide her with any form of support. She has been blamed for her husband's suicide by her husband's family who continue to reside in Nigeria. She has received a threat to the effect that they will seek to remove her daughter from her. Accordingly, "her family life with her daughter is therefore at some risk". Those are all preserved findings. She will face, in all probability, some disapproval in Nigeria due to attitudes there towards suicide. Again that is to be characterised as a preserved finding given the content of paragraphs 21, 22 and 23 of the Judge's determination. I accept Mr Mills' submission that the evidence does point to the claimant having previously worked in Nigeria and having some qualifications which might aid her to find work in the future should that be necessary. However, as he acknowledges, there may be problems with respect to ensuring someone is able to look after her young child if she does work. It is not merely a question of the claimant having difficulty with respect to finding work, finding somewhere for herself and her child to live and finding suitable child care arrangements, all probably difficult tasks of themselves given a lack of any family or financial support, but there is reason to think she may face positive hostility in setting herself up in Nigeria given the accepted antipathy of her late husband's family towards her. There is also the risk that she may have to deal with an attempt of some sort to take her daughter away from her. Putting all of that together I am satisfied that the necessary threshold is reached. The appellant does meet the requirements of paragraph 276ADE, in particular 276 ADE(vi) which was the part specifically in issue, and she does, therefore, succeed.
13. I have also decided, in the alternative, that she would succeed outside of the immigration rules if I had decided that paragraph 276ADE was not met. That is because, in addition to the matters which have caused me to conclude that it is met, there are a number of factors which tie her to the UK and which would render her removal to Nigeria disproportionate. In that context, her late husband is buried here. It was accepted by the Judge that she has "a strong emotional tie to her husband's grave and it has formed an important part of teaching her daughter about her father". There is the new circumstance surrounding her sister and I accept the evidence of increased closeness between them as a result of that. In looking at matters from the other perspective, I do acknowledge the importance of the public interest in immigration control. I do take Mr Mills' point that although the claimant has to her credit been able to support herself without recourse to public funds, she has had free National Health Service treatment and, of course, there is a cost to that and therefore to the public purse. Nevertheless, there are here, factors not recognised within the immigration rules and which I find to be compelling. In particular, that relates to the suicide of her husband and her understandable emotional links to his grave and her desire to be close to the grave as well as her, I accept particularly close, relationship with her sister given that the two have both had to deal with tragedy and have, I accept, supported each other as to that such that their relationship has grown closer. Indeed, in those circumstances, I would accept Ms Elliott-Kelly's submission that their relationship, unusually for one between adult siblings, does amount to a family life within the meaning of article 8. I find there are compelling circumstances which lead me to conclude the appeal should succeed outside the rules.
Decision
14. The decision of the First-tier Tribunal did involve the making of an error of law and has been set aside. However, in remaking the decision I allow the claimant's appeal against the Secretary of State's decision of 9 June 2014.
Anonymity
I make no anonymity order. None was made by the First-tier Tribunal and I have not been invited to make one.
Signed
M R Hemingway Judge of the Upper Tribunal
Dated

To the Respondent
Fee award
I make no fee award.

Signed
M R Hemingway Judge of the Upper Tribunal
Dated