Tribunal decisions

The decision

IAC-AH-dp-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/29416/2015
IA/29419/2015, IA/29421/2015
IA/29425/2015, IA/29426/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16th February 2017
On 28th February 2017

Before

DEPUTY upper tribunal judge ROBERTS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

A.K.A. (FIRST APPELLANT)
T.I.A. (SECOND APPELLANT)
MASTER M.O.I.A.O. (THIRD APPELLANT)
miss m.a.a.o.o. (fourth appellant)
miss m.o.a.a. (fifth appellant)
(ANONYMITY DIRECTION made)
Respondents

Representation:
For the Appellant: Ms J Isherwood, Senior Presenting Officer
For the Respondent: Miss G Peterson of Counsel

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction is made by this Tribunal because the appeal involves three minors.

DECISION AND REASONS
1. The Secretary of State for the Home Department appeals with permission against the decision of a First-tier Tribunal (Judge Malcolm) allowing the appeals of the Respondents against the Secretary of State’s decision to refuse them leave to remain in the UK on account of their Article 8 ECHR claims to family/private life.
2. For the sake of clarity I shall refer, throughout this decision, to the Secretary of State as “the Respondent” and to the Respondents as “the Appellants” reflecting their respective positions before the First-tier Tribunal.
Background
3. The Appellants are citizens of Nigeria. They are a family of five. The first and the second Appellants are the parents of the third, fourth and fifth Appellants (their minor children).
4. The first Appellant claims that she entered the United Kingdom in 1996. This claim is not accepted. The second Appellant entered in 2005. Their eldest child was born in the UK on 21st January 2008 and is now aged 9 years. He has lived here all his life and now attends a local school where he is doing well. The fourth and fifth Appellants were also born in the UK and are respectively aged 5 years and 20 months. The fourth appellant has now also started education at a local school. It is correct to say that both the first and second Appellants remain in the UK without extant leave.
5. On 20th August 2015 the Respondent issued a decision to all Appellants refusing their applications for leave to remain in the UK on account of their Article 8 rights. They appealed that decision and the appeals came before the First-tier Tribunal.
First-tier Tribunal Hearing
6. Before the FtT, it was accepted by the Appellants that their appeals could not succeed under the Immigration Rules. In each individual case, the only issue before the FtT was a human rights claim under Article 8 ECHR.
7. Having directed himself on that point, the judge made the following findings:
“The first appellant has family in Nigeria however I accept that she has lost contact with them. The second appellant whilst he has lived in the UK for eleven years does still have family in Nigeria with whom he is in contact. Whilst noting the appellant’s evidence as to the difficulty which he had in obtaining work in Nigeria he has obtained qualifications and whilst I accept that both the first and second appellants wish to remain in the UK I did not consider that any of the evidence presented indicated that there would be very significant obstacles to the integration of the first and second appellants into Nigeria if required to leave the UK. The second appellant has lived the majority of his life in Nigeria and is clearly conversant with the life and customs of the country. The first appellant also spent a large proportion of her life in Nigeria and it is considered reasonable to assume that both she and the second appellant would be able to establish themselves and their family in Nigeria if necessary. [107]
I accept that the appellants do not wish to return to Nigeria but did not consider that the evidence presented suggested that there would be very significant obstacles to their integration into Nigeria if required to return.” [108]
8. The judge then turned his attention to the children of the family in particular the situation of the third Appellant M.O.I.A.O. who, at the time of the hearing, had lived in the UK for eight years. He said the following:
“The issue is whether it would be reasonable to expect [M.O.I.A.O.] to relocate from the United Kingdom. As detailed [M.O.I.A.O.] has spent his whole life in the United Kingdom and as is evidenced from the documentation provided by the appellants he has settled at school and has established a network of friends. [118]
In considering the current case law, I accept that the fact of the child’s seven year residence must be given “significant weight” and that there would require to be strong reasons for leave not to be granted in such circumstances. Indeed, it is accepted in the respondent’s own guidance that there requires to be strong reasons for refusing leave in such circumstances. I accept that [M.O.I.A.O.] has developed social, cultural and educational links in the UK and accept that it would be disruptive to his life if he was required to leave the UK. [119]
As detailed I consider that the family unit could relocate to Nigeria and would anticipate that the appellants should be able to obtain employment. Whilst I accept that there could be difficulties but do not consider that the difficulties would be insurmountable. [120]
The crux of this case however is the position of [M.O.I.A.O.] and as detailed I find that [M.O.I.A.O.] has lived in the UK for more than seven years and I do not find that there has been any evidence put forward which would allow me to find that it would be reasonable to expect [M.O.I.A.O.] to relocate.” [121]
He then allowed each of the Appellants’ appeals under Article 8 ECHR.
9. The Respondent sought and was granted permission to appeal the FtT’s decision. The grounds seeking permission are contained under two headings:
The FtT failed to apply the correct burden of proof regarding the test of whether it would be reasonable to expect a child to leave the UK
The FtT failed to give adequate reasons for finding that it would be unreasonable to expect the eldest child to leave the UK and in failing to apply the reasonableness test, misapplied the guidance, case law and relevant jurisprudence
10. Permission being granted on those grounds, the matter came before me to determine whether the decision of the FtT contains such error of law that it must be set aside and remade.
Error of Law Hearing
11. Before me, Ms Isherwood for the Respondent amplified the grounds seeking permission. She said firstly the failure of the judge to apply the correct standard of proof in [121] had led to an unsustainable approach to the evidence regarding the “reasonable test”. It has always been the case that it is the Appellants who have to demonstrate that it would not be reasonable to expect M.O.I.A.O., the eldest child, to return with the rest of his family to Nigeria.
12. Secondly although the judge had noted EV (Philippines) v SSHD [2014] EWCA Civ 874 he had made no reference to the reasoning and guidance set out therein, nor to the jurisprudence set out in MA (Pakistan) and Others [2016] EWCA Civ 705. His failure to do so had led to a failure to properly balance all factors in his findings on the “reasonableness” or otherwise of M.O.I.A.O. returning to Nigeria. This was especially so in the light of the FtT’s unchallenged findings that there were no insurmountable difficulties to the family relocating as a whole to Nigeria [120]. The decision of the FtT was therefore materially flawed and it should be set aside for the decision to be remade.
13. Miss Peterson on behalf of the Appellants submitted that the Respondent’s position amounted to no more that a disagreement with the fact-finding of the First-tier Judge. She argued that the judge had properly set out that the best interests of the eldest child of the family (M.O.I.A.O.) were of primary consideration and had looked at the best interests of that child first of all [21].
14. She pointed out that all three children of the family had lived their entire lives in the UK and that the FtT had not solely relied upon the situation and education of the eldest child as a trump card, but had looked holistically at the child’s social and cultural links as well.
15. She accepted that the judge had not referred to MA and Others but said he had referred to and mirrored the decision of the UT in PD and Others. The decision was therefore sustainable and I should so find.
16. At the close of submissions I formally reserved my decision which I now give with reasons.
Consideration
17. I find I am satisfied that the decision of the FtT contains an error of law requiring it to be set aside and remade. The central issue in these appeals is really about the eldest child of the family M.O.I.A.O. There is no dispute that this child is a “qualifying child” within Section 117B(6) having been born and lived in the UK now for eight years; nor that on the judge’s findings, his parents have other than a genuine and parental relationship with him.
18. It follows that the only real issue before the judge was whether it would be reasonable to expect the child to leave the UK. That question requires a proper consideration of assessing the child’s best interests.
19. After setting out that there would be no insurmountable difficulties for the family relocating to Nigeria the judge said this:
“The crux of this case however is the position of [M.O.I.A.O.] and as detailed I find that [M.O.I.A.O.] has lived in the UK for more than seven years and I do not find that there has been any evidence put forward which would allow me to find that it would be reasonable to expect [M.O.I.A.O.] to relocate.” [121]
20. I find that this is the wrong approach. It is clear on a full reading of the decision that the judge has concluded that the fact that M.O.I.A.O. has lived in the UK for over seven years does operate as a trump card automatically dictating the outcome of these appeals. The error in that approach is therefore material and I set aside the FtT’s decision.
Remaking the Decision
21. I find I am in a position to remake the decision, since both parties indicated there was no further evidence to put before me. In addition Ms Isherwood accepted there was no serious challenge to the evidential findings made by the FtT. The challenge to the decision was on the basis that the FtT’s findings did not support the conclusions reached.
22. I start my consideration from the premise that the first matter to be looked at is what are the best interests of M.O.I.A.O., he being the only qualifying child? M.O.I.A.O. has lived all his life in the UK and is currently at school here. He has attended school for four years now. From the documents before me, he is doing well at school. He has no doubt made friends at school and I understand that he has cousins and aunts and uncles in the UK with whom he has links.
23. He is however only 8 years of age, and whilst the above factors must be given significant weight, I have to balance into the equation that undoubtedly his best interests are served by him being brought up by his two parents.
24. M.O.I.A.O. is a national of Nigeria as are his parents. Currently he lives with his parents and two younger siblings as a family unit. Fortunately he suffers from no serious medical problems and as far as the evidence goes, neither do any of the other family members, although his father has reported blood pressure and diabetes problems.
25. The situation of M.O.I.A.O.’s parents is precarious in the sense that they do not work in the UK, as they are both here unlawfully and therefore rely upon friends, family members and charity for support for themselves and their children. That is a somewhat hand to mouth existence.
26. Whilst it is correct that M.O.I.A.O. and his younger sibling have entered education in the UK, there is no evidence that M.O.I.A.O. is at a critical stage in his education nor that he would not be able to receive an education if he and his family returned to Nigeria. The same applies to his younger sibling who has only spent 2 years in school at the most.
27. It is unchallenged that M.O.I.A.O.’s father, the second Appellant, comes from Lagos where he still has family members. There is an operating educational system in Lagos where English is the spoken language. The FtT made a clear finding that M.O.I.A.O.’s father should be in a position to find employment in Nigeria, having gained qualifications there, according to his own testimony.
28. Balancing all these factors, it is quite clear that the best interests of M.O.I.A.O. must be to be with both his parents and other siblings. This is despite the significant weight given to his residence in the UK. None of the family have status in the UK as all are citizens of Nigeria and in these circumstances outlined above, I find that the best interests of M.O.I.A.O. in remaining in the UK, does not outweigh the public interest in removing him together with his family members. This is because it would not be unreasonable to expect M.O.I.A.O. to leave the UK with his family.

Notice of Decision
The appeals of the Secretary of State are allowed.
The decision of the First-tier Tribunal is set aside for material error.
The appeals of the Appellants against the decision of the Secretary of State to refuse them leave to remain on account of their Article 8 ECHR Human Rights are dismissed.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed C E Roberts Date 26 February 2017

Deputy Upper Tribunal Judge Roberts

TO THE RESPONDENT
FEE AWARD
No fee award was made by the First-tier Tribunal. I was not asked to make a fee award by the Respondent and therefore none is made.

Signed C E Roberts Date 26 February 2017

Deputy Upper Tribunal Judge Roberts