Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27800/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 April 2017
On 19 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

Mojisola Olanike Bamimuye
(anonymity direction not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr S. Tampuri, a Legal Representative, Tamsons Legal Services
For the Respondent: Mr L. Tarlow, a Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal from a decision of First-tier Tribunal Judge Ian Howard that promulgated on 2 September 2016. The appellant was born on 30 March of 1972 and is a Nigerian national. She is represented on this appeal by Mr Tampuri who also represented her before the First-tier Tribunal. The decision in question, made on 28 July 2015, was a refusal to grant leave to the appellant to remain in the United Kingdom.

2. The judge heard from the appellant who adopted her statement as evidence-in-chief and explained her reasons why she considered she could not return to Nigeria. She was cross-examined on her evidence.

3. The judge’s findings appear at paragraphs 10 and following of the determination and I need not rehearse them here.

4. The grounds of appeal concede that the judge was correct to focus his approach on whether there were insurmountable obstacles to family life continuing in Nigeria.

5. Mr Tampuri directs my attention to paragraph [24] of the determination in which he submits a material error of law is to be found. He does not criticise the judge’s summary of the case law in the opening section of paragraph 4, which effectively introduces the well-known concept of the five Razgar questions: R v The Secretary of State for the Home Department ex parte Razgar [2004] UKHL 27.

6. Similarly Mr Tampuri does not criticise what is said by the judge in relation to the first of the Razgar questions. This reads as follows:

“The appellant has been in the UK since 2011. Her children have been here since 2012 or 2013. They live in a nuclear family with their mother and stepfather. They attend school. What the appellant enjoys with her husband and her children in the UK is properly described as family life. Further, her children being in education in the UK they have additionally established a private life outside the family home. Mr Smith as a British citizen has both his family life with the appellant and her children and his private life established during a lifetime in the United Kingdom and the fact he is in gainful employment. Removal of the appellant would necessitate an interference with her family life with her husband and children. If they were to leave with her this would necessitate the additional interference in their family and private life. If the sponsor were to travel too this would necessitate an interference in his private life.”

7. The substantive criticism made by Mr Tampuri relates to the judge’s treatment of the second Razgar question, namely whether such interference as may already have been identified would have such consequences as to engage the operation of Article 8 of the European Convention on Human Rights. The judge dealt with this matter as follows, also within paragraph [24]:

“Each of the above is predicated upon the notion that the whole family relocates to Nigeria following the appellant’s removal. However, at the hearing the prospect of the appellant making an application for entry clearance from Nigeria with her children was also explored. The sponsor told me he earns £25,000 per annum before tax. The requirement under paragraph FM is for £24,800 where there are two children. The evidence did not establish that there was an inability on the part of the appellant to meet the requirements for an entry clearance application. They did not however express concern based upon the fear of the appellant’s ex-husband’s attitude to their daughter. Two matters are relevant to this consideration. Firstly, when the issue was first raised the appellant was able to prevent it from taking place despite it being ‘an issue between us’ and secondly it is not something he has pursued since that time. On the evidence before me I cannot be satisfied it is more likely than not that this remains an issue of concern.

“Given there is no reason to suppose the appellant cannot make a successful application for entry clearance for herself and her two children from Nigeria, on the facts as I find them, while that remains a real prospect the interference that will be occasioned by the respondent’s refusal to grant the appellant leave is not of sufficient gravity to engage Article 8.”

8. Both in his written grounds and his oral submissions this morning, Mr Tampuri made reference to the decision of Chikwamba v Secretary of State for the Home Department [2008] UKHL 40. Although he did not have a copy of the authority with him for the Tribunal’s benefit and was unable to point to any specific passages, he drew attention to the general principle whereby the relevance or otherwise of an individual leaving the country thereafter making a successful entry clearance application from overseas ought not to be given determinative status.

9. In my assessment of the First-tier Tribunal determination, I can detect no material error of law in this regard. The judge considered Article 8 in the round, in the context of the facts as he found them to be. The prospect of a future application for entry clearance was merely one part of the factual matrix. However Mr Tampuri seeks to re-craft this ground of appeal, it amounts to no more than disagreement with the factual findings of the judge and the exercise of discretion based upon such findings.

10. The second matter pursued by Mr Tampuri relates to section 55 of the Borders, Citizenship and Immigration Act 2009. This provision articulates the duty of the Secretary of State to safeguard and promote the welfare of children.

11. In the concluding section of paragraph [24], the judge makes express reference to Section 55, albeit mistakenly citing it as the Borders Act of 2007. I do not consider there to be any substance in criticism made of the judge in this regard. It is part of the judicial function to state conclusions which are succinct and comprehensible, and this is precisely what the judge has done. Some may have been more expansive in their analysis and conclusions, but what the judge did here was sufficient and adequate.

12. The judge set out the relevant factors on both sides but come to the conclusion that the best interests of the children are served by them being with their mother and living in Nigeria where the majority of their lives had hitherto been spent until such time, if at all, as a successful entry clearance application might be made. This was a legitimate exercise of discretion on the part of the judge.

13. I am not satisfied that there is any error of law on the face of the determination and it must therefore follow that this appeal will be dismissed.

Notice of Decision

Appeal dismissed and decision of First-tier Tribunal affirmed.

Signed Mark Hill Date 13 April 2017

Deputy Upper Tribunal Judge Hill QC