Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/29853/2015
IA/29862/2015
IA/29865/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 March 2017
On 25 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ESHUN

Between

THE Secretary of State FOR THE Home Department
Appellant
and

BISOLA TEMIDAYO AKINDEKO (FIRST RESPONDENT)
FEYISARA SHARON ADEETOLA BOLUWATIFE (SECOND RESPONDENT)
IDIOPEMIPO OLUWASEYIFUNMI VICTORIA ADEDEWA (THIRD RESPONDENT)
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:
For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondents: Mr A Ogunbiyi, Counsel instructed by CLC Solicitors

DECISION ON ERROR OF LAW
1. The Secretary of State has been granted permission to appeal the decision of First-tier Tribunal Judge Housego in which he allowed the appeals of the respondents on Article 8 grounds.
2. The first respondent is the mother of the second and third respondents. The first respondent was born on 26 February 1980. The second respondent, her daughter, was born in the UK on 26 December 2007 and the third respondent, her daughter, was born in the UK on 23 March 2011. All the respondents are citizens of Nigeria.
3. The first respondent claimed to have arrived in the UK in September 2006. On 26 November 2009, she applied for an EEA residence card. This was refused on 14 June 2010. Her appeal against the Secretary of State’s decision was dismissed on 1 October 2010. On 13 October 2010, the respondent became appeal rights exhausted. Her immigration history is set out at paragraph 4 of the judge’s decision.
4. The judge set out the first respondent’s evidence at paragraphs 33 to 36.
5. The judge found that the first respondent was a credible witness. He found that she had studied and obtained qualifications so that with immigration status can enrol on a degree course and, if successful, wants to become a mental health nurse. The third respondent is a young child who has just started school and whose best interests are served by being with her mother, in whichever country she lives. He said that there are significant obstacles to the return of the respondent to Nigeria (as a single parent with two children) but it was putting it too highly to say that there are very significant obstacles to her return.
6. The judge then held as follows at paragraph 45:
“45. The second appellant determines this case. She was born on 26 December 2007, and so is now 8, going on 9 years old. She has never been to Nigeria. She lived much of her early life in a London borough with Nigerians around. She now lives in Gillingham in Kent. This is not an area with many Nigerians. She knows no family in Nigeria. While the pre-school years are of less importance to a child than later years they are not unimportant. 7 years is not a ‘bright line’, but the further past the 7 years one goes, the harder it is to justify the removal of a child to a place she has never been, after an entire life in the UK. There is no reason to think that the second appellant views herself at Nigerian, or anything else but British. With every month that passes the appeal of the second appellant becomes the stronger, and it is today’s circumstances that I consider. It is not her fault that the immigration history of the first appellant is as it is. I do not consider it reasonable to expect the second appellant to be removed to Nigeria. In coming to this conclusion I have taken account of the fact that the language of education is likely to be English and that there is an educational system in Nigeria. Reading the series of parameters in the cases cited, such as EV Philippines, leaves little room for doubt but that the best interests of the second appellant lie in remaining in the UK, and that it would not be reasonable for her to be removed to Nigeria. In EV Philippines it was relevant that the child had British citizenship, and the second appellant does not. There is no evidence that the second appellant regards herself as Nigerian: she has never been there, and has no personal connection with that country. She is black as are many British citizens: that is an irrelevance. I do not regard her Nigerian citizenship as something that makes it any less disadvantageous for her to return to Nigeria.
47. Since it is unreasonable to expect the second appellant to leave the UK the appeal of the second appellant succeeds under paragraph ADE276(iv). There is no question of separating the second appellant from her mother, the first appellant, or from the third appellant. That being so, the appeals of the first and third appellants also succeed.
48. The Home Office assert that the appellant’s presence in the UK is not conducive to the public good by reason of her conviction for use of false ID. It is relevant that the reason she did this was to earn money (at a legitimate job) in order to support herself and her children. It is also relevant to the public good that while unable to work the appellant has studied so as to be in a position after this decision to commence a degree course in order to become a mental health nurse. That is an ambition that is very much in the public interest”.
7. I find that the judge erred in law. He erred in not following EV (Philippines). His reason, which is not very clear, was that “insofar as EV (Philippines) at paragraph 37 may be thought to indicate that the immigration history of the first appellant is relevant to the issue of the second appellant, I do not follow it”. I find that this is in flagrant breach of paragraph 37 of EV (Philippines) which says:
“In the balance on the other side there falls to be taken into account the strong weight to be given to the need to maintain immigration control in pursuit of the economic wellbeing of the country and the fact that, ex hypothesi, the applicants have no entitlement to remain. The immigration history of the parents may also be relevant e.g. if they are overstayers or have acted deceitfully”.
8. The judge failed to take into account that the first respondent was an overstayer who had been found guilty of a criminal activity which involved deceit. I find that at paragraph 48, the judge rather sought to justify the reason for the criminality.
9. The judge failed to consider paragraph 58 of EV (Philippines) which laid down what needed to be considered when assessing the best interests of the children.
10. I also find that the judge erred in law in failing to consider MA (Pakistan) and Others [2016] EWCA Civ 705 which decided that when considering whether it was reasonable to remove a child from the UK under the Immigration Rules and the Nationality and Asylum Act 2002 Section 117B(6), a court or Tribunal should not simply focus on the child but should have regard to the wider public interest considerations including the conduct and immigration history of the parents.
11. It is apparent from [45] that the judge treated the second respondent as the primary consideration. This goes against the decision in ZH (Tanzania).
12. In the light of the above, I find that the judge’s decision cannot stand. It is set aside in order to be remade.
13. The appeal is remitted to Taylor House to be reheard by a First-tier Tribunal Judge other than FTTJ Housego.

Signed Date: 24 April 2017

Deputy Upper Tribunal Judge Eshun