Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28025/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 November 2016
On 13 December 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

ayaba muibat adeyemi
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Tampuri, Tamsons Legal Services
For the Respondent: Mr Whitwell, a Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Ayaba Muibat Adeyemi, was born on 22 October 1975 and is a female citizen of Nigeria. She appealed against a decision dated 24 January 2015 refusing her leave to remain in the United Kingdom under Article 8 ECHR. The First-tier Tribunal (Judge Miller) in a decision promulgated on 6 July 2016 dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The appellant had been encountered in September 2014 during an enforcement visit and had been served with IS151A notices. Some months later, she had made her application which is the subject of this appeal. The appellant has three children B (born 2008) E (born 2009) and H (born 2014). The two elder children B and E are Nigerian citizens. The appellant claims that the child H is a British citizen whose father is one John Smith. The Secretary of State did not accept that H is a British citizen; the appellant had produced a birth certificate on which no father had been named. The respondent considered that the appellant could not satisfy the requirements of paragraph 276ADE of HC 395 or that there were exceptional circumstances justifying a grant of leave to remain outside the Rules under Article 8 ECHR.
3. The judge in the First-tier Tribunal heard evidence from the appellant. No oral evidence was given by Mr John Smith. The judge found at [32] that there was "no credible evidence that H is likely to be a British citizen".
4. The grounds of appeal challenge the judge's findings as regards the nationality of H. It was not legitimate for the judge to criticise the appellant for failing to provide DNA evidence as that matter had never been raised by the respondent [5]. The judge should have found that there were exceptional circumstances in this instance.
5. In granting permission, Judge Saffer found that it was arguable that the judge had erred in law by requiring the appellant to produce a DNA certificate in circumstances where she had already produced a birth certificate identifying the child's father and what appeared to be the British passport of that father.
6. I find that the judge did not err in law for the reasons asserted in the grounds of appeal or at all. I have reached that conclusion for the following reasons. The judge has given detailed reasons at [31] for finding that the child H is not a British citizen. He refers to the fact that in January 2015 the appellant's solicitors had written to the respondent indicating that all three of the appellant's children were "not British citizens". That letter had been written only a month after H's birth. Birth certificates submitted to the Home Office in 2015 did not name the father but a second certificate, naming Mr Smith, had been obtained a year after H's birth. The statement from Mr Smith was short and provided few details. There was nothing to show that Mr Smith had applied for a British passport for H. The judge drew an adverse inference from the fact that Mr Smith did not attend the hearing to give oral evidence. It was against this background that the judge found that DNA evidence would have put the parentage of H beyond reasonable doubt. He does not state that providing DNA evidence was in any way a requirement for proving paternity; only that, set against the background of the concerns which he had expressed in the decision and for which he had given cogent and clear reasons, it was surprising that DNA evidence had not been adduced. It was also significant that the judge did not find the appellant to be a credible witness. It was legitimate for the judge to find that the appellant's immigration history cast doubt upon her credibility as a witness generally. That credibility was further undermined by the inconsistent evidence the appellant had given either directly or through her solicitors as to her relationships with other men.
7. I find, therefore, that there was no obligation on the judge, who carried out a holistic examination of all the evidence, to be bound to accept that H was a British citizen because a birth certificate had been adduced in evidence showing Henry Smith as the child's father. The judge did not err by referring to DNA testing. Contrary to what is said in the grounds of appeal, the reasons for refusal letter dated 21 July 2015 did indeed challenge the nationality of H at [15]. It was open to the judge to draw an adverse inference from the failure of the appellant to obtain DNA testing in circumstances where the parentage of the child H had been challenged. Ultimately, the findings of the judge drew it to his conclusion that the appellant had failed to discharge the burden of proof upon her by failing to prove that H is a British citizen.
8. Given that the judge's finding that H has not been proved to be a British citizen, the remainder of his findings as regards the application of HC 395 and Article 8 ECHR remain sound. The family, all Nigerian citizens, will be removed to Nigeria together and there was no evidence to suggest that the private lives of the appellant and the children would be so affected as to render their removal unreasonable or disproportionate. As far as the grounds of appeal challenge the judge's analysis, those grounds amount to nothing more than a disagreement with findings available to the judge on the evidence as he found it.
Notice of Decision

This appeal is dismissed

No anonymity direction is made.

Signed Date 11 December 2016

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD

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

Signed Date 11 December 2016

Upper Tribunal Judge Clive Lane