Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28230/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 22 May 2013
On 19 June 2013
Prepared 22 May 2013

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

Michael Ayoade

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Adekoya of Messrs IEI Solicitors
For the Respondent: Mr Parkinson, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Secretary of State appeals, with permission, against a decision of Judge of the First-tier Tribunal Fisher who in a determination promulgated on 30 January 2013 allowed the appeal of Michael Ayoade against a decision of the Secretary of State to refuse him leave to remain on Article 8 grounds.

2. Although the Secretary of State is the appellant in the appeal before me I will, for ease of reference, refer to the Secretary of State as the respondent in this appeal as she was the respondent in the First-tier Tribunal similarly I will refer to Mr Michael Ayoade as the appellant as he was the appellant before the First-tier Tribunal.

3. The appellant is a citizen of Nigeria born on 29 October 1971 who claimed to have arrived in Britain using false documentation in 1993. He was encountered by immigration officials on 24 April 2008 and served with documentation as an illegal entrant. He was charged with a number of offences of fraud and in July 2008 was sentenced to ten months in custody. On 12 September that year he lodged an application for leave to remain under the ECHR based on his relationship with a British citizen. Although that application was refused and indeed certified as clearly unfounded the appellant was then given a certificate of approval for marriage in April 2009 and he married Leighanne McKenzie on 25 September 2009. Their son Jozef was born on 3 February 2010.

4. On 27 May 2010 the appellant lodged an application for leave to remain on the basis of his marriage. The marriage however broke down in January 2011 and the application was refused without a right of appeal. After a judicial review application was lodged the appellant’s application was reconsidered and he was given the opportunity to submit further evidence. However on 19 November 2012 a decision was made to refuse him leave to remain and directions were made for his removal.

5. It was in these circumstances that the appellant appealed. His appeal was heard by Judge Fisher.

6. The judge heard evidence from the appellant and from Leighanne McKenzie and in paragraphs 11 onwards set out his findings of fact and conclusions. He referred to relevant case law including MF (Article 8 – new Rules) Nigeria [2012] UKUT 00393 (IAC) and to the judgment of the House of Lords in Razgar [2004] UKHL 27. He referred to the relevant structured approach in that judgment and then wrote as follows:-

“13. The relationship between parent and minor child is one which engages family life without more. It was clear to me, from the evidence of Ms McKenzie, that, at the date of the hearing, there was no family life between her and the Appellant, although she was hopeful of a reconciliation if he is able to overcome his problems with depression. It is greatly to her credit that she has ensured that contact between the Appellant and their child has continued in spite of his parents’ separation. I am satisfied that she would not have done so if the Appellant was not a good father to his son. Although Ms McKenzie’s letter of 21st September 2012 at page B6 of the Respondent’s bundle was somewhat confusing as she thought that the Appellant had been detained around November of that year, her letter at pages B7-8 refers to him being detailed on 31st August 2012, which puts the September letter in to context. I conclude that she was mistaken when she told me that she thought he had been detained later in the year. Her letter at B7-8 and her oral evidence made it very clear that the Appellant has a close bond with his son. In her letter at page C5, dated 10th November 2012, she stated that the Appellant had returned to live with her. Sadly, his mental health issues resulted in him leaving the house, although I cannot accept Ms Robinson’s submission that this amounted to the Appellant removing himself from family life, as it can still continue despite the fact that he was not living with his wife and their child. I am satisfied that the Appellant enjoys a close family life with his son. There was no evidence of any significant private life. I did not find the Appellant to be a reliable witness, given his assertion that he was cohabiting with Ms McKenzie and their child, when that was plainly not the case. I could not, therefore, find as a fact that he has been in the UK since 1993. The Appellant did not produce any evidence from the church which has, apparently, offered him a great deal of support recently. There was a dearth of medical evidence in the appeal, certainly as regards the Appellant’s mental health. I had sight of a letter dated 24th August 2012 from the Bradford Teaching Hospitals, confirming that the Appellant has an HIV infection, and that he had attended the clinic intermittently since 2007. Having been prescribed antiretroviral therapy in 2010, he stopped taking it after six months because he felt that he had been cured by God. His health issues do not reach the threshold of D v UK.

14. The Appellant’s removal from the UK would undoubtedly interfere with his relationship with his son. Equally, however, that interference would be in accordance with the law and in pursuit of the legitimate aim of maintaining the economic well-being of the State through a robust system of immigration control. The core issue in this appeal is, therefore, whether removal is proportionate to that aim. Following the decision in ZH (Tanzania) [2011] UKSC 4, the best interests of the child have to be a primary consideration in the proportionality assessment, meaning that they have to be considered first. In her refusal letter, the Respondent accepted that it was a generally agreed principle that children should grow up within their family unit. In LD (Article 8 – best interests of child) Zimbabwe [2010] UKUT 278 (IAC), the Tribunal held that weighty reasons would be required to justify separating a parent from a lawfully settled minor child or child from a community in which he or she had grown up and lived for most of his or her life. In E-A (Article 8 – best interests of child) Nigeria [2011] UKUT 00315 (IAC) it was held that, during a child’s very early years, he or she will be primarily focused on self and the caring parents or guardian. At the date of the hearing, Ms McKenzie was solely performing the role of the caring parent, having been forced to relinquish her employment in order to do so, and Jozef was not quite three years old at the date of the hearing. However, as I have stated, the evidence shows that he and his father have a close bond.

15. The Appellant has a lengthy immigration history. He had no leave to be in the UK when he was encountered in 2008 and served with an enforcement notice. Various applications to remain have been made and refused. However, Jozef cannot be held responsible for his father’s previous poor history. The Appellant currently has no means of supporting himself or his family, and relies on the generosity of the church, on his account. There is a strong public interest in his removal. However, to do so would separate him from his son. As a British citizen, he cannot be required to leave the UK, and it is now well established that it is not reasonable to expect family life between a parent and a minor child to be conducted electronically. Jozef’s British nationality is very important in the assessment of proportionality.

16. I find it likely that the Appellant and Ms McKenzie will reconcile. That was her evidence, provided the Appellant gets treatment for his depression and takes the medication prescribed to him. That would result in the reunion of the family. The Appellant has shown, in the past, that he is capable of working. I consider that the balancing exercise in this case is close. Thus, although there is a strong public interest in the removal of the Appellant as an illegal entrant who is presently unable to maintain himself, his removal would not be in the best interests of his British son. By the narrowest of margins, I conclude that the Respondent has failed to advance sufficiently weighty reasons to displace the best interests of the child in favour of the public interest. Accordingly, I allow this appeal under Article 8 of the ECHR.”

7. The Secretary of State appealed referring to the relevant Immigration Rules dealing with the rights of an applicant under Article 8 of the ECHR before going on to argue that the judge had failed to give adequate reasons for his findings and conclusions. In particular they refer to the fact that the judge had found that the appellant would reconcile with his wife if he got treatment for his depression and took prescribed medication and stated that it was submitted the appellant had failed to provide sufficient reasons for that finding especially given that he had failed to seek treatment in the past and had failed to take any medication prescribed to him and that that had led to his separation from his wife. It was claimed that the appellant’s failure to seek treatment in the past had impacted upon his relationship with his son which led to him living apart from his son but despite that he had maintained contact with his son and there was no reason why he could not do that by modern methods of communication from Nigeria.

8. At the hearing of the appeal before me Mr Parkinson argued that the judge had failed to give adequate reasons for his conclusion that the appellant and Miss McKenzie would reconcile and that his conclusions were based on speculation. He pointed out that the judge had stated that his decision was reached on the “narrowest of margins” and that there was no indication that the appellant was going to obtain medical help which was the basis on which the judge was speculating that the appellant and Miss McKenzie would reconcile. He pointed to the fact that they had been living apart for some time prior to the hearing and that they had previously separated because of the appellant’s depression. He argued it was not open to the judge to make the findings which he had and on which he based his decision that, on balance, the removal of the appellant was disproportionate.

9. With regard to the issue of the best interests of the appellant’s son he stated that all factors should be considered rather than separating out different factors in the proportionality assessment. Of relevance was the fact that the appellant had been convicted of fraud. Moreover the judge had not considered that the appellant might be able to return to Britain after removal.

10. He accepted that it was likely that the appellant had worked in Britain in the past as he had met his wife at work.

11. Mr Adekoya argued the decision of the judge was adequately reasoned and referred to the factors relating to the best interests of the appellant’s son.

12. In reply Mr Parkinson referred again to the fact that the appellant had had a breakdown and had not taken his HIV medication and there was nothing to indicate that he would comply with any regime to take his medicine and it was only on that basis that reconciliation was envisaged.

13. When considering this appeal I note the terms of the judgment of Carnwath LJ in Mukarkar v SSHD [2006] EWCA Civ 1045 in which, at paragraph 40 he had stated:-

“Factual judgments of this kind are often not easy, but they are not made easier or better by excessive legal or linguistic analysis. It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case … The mere fact that one Tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law, so as to justify an appeal under the old system or an order for reconsideration under the new. Nor does it create any precedent, so as to limit the Secretary of State’s right to argue for a more restrictive approach on a similar case in the future.”

14. I have considered the conclusions of the Immigration Judge. In paragraph 16 he referred to two matters. The first was his finding that the appellant and Miss McKenzie would reconcile and the second was the issue of the best interests of the appellant’s British son. Indeed it appears that he placed most weight on that point in that he stated that he had concluded that the respondent had failed to advance sufficiently weighty reasons to displace the best interests of the child in favour of the public interest.

15. The reality is that the judge did set out and clearly applied the appropriate structured approach to the rights of the appellant under Article 8 of the ECHR. He took into account all factors including the appellant’s relationship with his British wife and that with his British son. He heard evidence from Miss McKenzie. He set out what evidence of the appellant he accepted and what he did not.

16. In paragraph 13 he noted that the appellant’s mental health issues had resulted in him leaving the house but he did go on to say that he could not accept the Presenting Officer’s submissions that that amounted to the appellant removing himself from family life. He concluded that the appellant enjoyed a close family life with his son.

17. He concentrated particularly in the determination on the issue of the best interests of the appellant’s son referring to the judgment in ZH (Tanzania) [2011] UKSC 4 as well as that in LD (Article 8 – best interests of child) Zimbabwe [2010] UKUT 278 (IAC) and EA (Article 8 – best interests of child) Nigeria [2011] UKUT 00315 (IAC). He found that the appellant and his son had a close bond. He placed weight on the appellant’s role in his son’s upbringing and of course emphasised that his son was a British citizen.

18. It is not the case that the judge ignored the appellant’s immigration history and indeed he found that there was a strong public interest in the removal of the appellant.

19. Having stated that, however, he concluded that the removal of the appellant would not be in the best interests of his son. He took into account the evidence of Miss McKenzie and reached his conclusions that, by the narrowest of margins, the Secretary of State had failed to advance sufficiently weighty reasons to displace the best interests of the child in favour of the public interest.

20. As I stated above I am guided in my consideration of this appeal by the judgment of Carnwath LJ in Mukarkar. I conclude that the decision of the Immigration Judge was in no way perverse, that it was fully open to him and was reached after applying the appropriate structured approach. The judge’s findings of facts were reached after reviewing in some detail the evidence before him and indeed after hearing the evidence of Miss McKenzie.

21. In these circumstances I find that there was no material error of law in the determination of the Immigration Judge and find that the decision of the judge to allow this appeal shall stand. It is, of course, for the respondent to decide the length of leave to remain which should be granted to the appellant.

Decision

22. This appeal is allowed on human rights grounds.

Signed Date 18 June 2013

Upper Tribunal Judge McGeachy