Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29979/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 10 January 2017
On 11 January 2017

Before

Deputy Upper Tribunal Judge MANUELL

Between

MS ADELOLA OLAWUNMI ADESANYA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr S Karim, Counsel
(instructed by M A Consultants, London)
For the Respondent: Mr C Avery, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction

1. The Appellant appealed with permission granted by Designated First-tier Tribunal Judge Macdonald on 7 December 2016 against the determination of First-tier Tribunal Judge Lucas who had dismissed the appeal of the Appellant and her two dependant children seeking settlement outside the Immigration Rules on Article 8 ECHR grounds. The decision and reasons was promulgated on 18 August 2016.

2. The Appellant and her dependant children are nationals of Nigeria. The Appellant had overstayed in the United Kingdom since 2006. Both children had since been born in the United Kingdom. The eldest child was accepted by the Secretary of State to have been in the United Kingdom continuously for more than 7 years but it was considered reasonable for both children to leave the United Kingdom with their mother who had sole responsibility for them. The children were both young. Their mother would help them to adapt, there were no obstacles to reintegration, their education could continue and there were no exceptional circumstances. (There was no issue as to parental competence.) The judge agreed and dismissed the appeal on that basis.

3. Permission to appeal was granted because it was considered that although it was wrongly claimed in the grounds that the eldest child was British, he was a "qualifying child" and the judge had failed to consider the terms of section 117B of the Nationality, Immigration and Asylum Act 2002.

4. Standard directions were made by the tribunal. A rule 24 notice opposing the appeal was filed by the Respondent.

Submissions

5. Mr Karim for the Appellant relied on the grounds of onwards appeal and grant. In summary he sought to argue that the judge omitted to consider and apply relevant authority, in particular MA (Pakistan) [2016] EWCA Civ 705. By [46] of that Court of Appeal decision, the judge had been obliged to give "significant weight" to the fact that the eldest child was accepted to have been 7 years old at the date of the application (in terms of the Immigration Rules) and also in relation to section 117B. The judge had not set out "powerful reasons" why the eldest child had to go to Nigeria nor had he dealt with the issue of reasonableness of that return. The determination should be set aside and remade.

6. Mr Avery for the Respondent relied on the rule 24 notice and submitted that there had been little evidence in the appeal and that had required no discussion as reflected in the brevity of the determination. The judge had discussed the case in the round and had been right to conclude that there were no exceptional circumstances and that it was reasonable for the eldest child to go to Nigeria with his mother and younger sibling. There was no material error of law.

7. In reply, Mr Karim submitted that because the judge had made no clear findings of fact, it was not apparent whether or not he had considered that the Appellant had only limited ties with Nigeria, for example, that both her parents were dead. It was not reasonable for the eldest child to go to Nigeria and the appeal should be allowed.

No material error of law finding

8. In the tribunal's view the grant of permission to appeal was far too generous, and was not based on a fair reading of a succinct yet accurate decision. It was not necessary for the judge to have cited any of the standard authorities, although it is sometimes sensible to do so in the hope of reducing over optimistic applications to appeal such as the present one, which clog the tribunal's lists and waste public money. The permission to appeal as lodged was misleading by asserting that the elder child was British (see [6ii) of the grounds) and relied on a sterile, technical reading of a straightforward decision and reasons.

9. Contrary to Mr Karim's submissions, the judge had taken the Appellant's claims at [5] of her two page witness statement into account. The Appellant had stated that her parents had died but that she had a sister in Nigeria with whom she did "not communicate": see [11] of the determination. There was no suggestion of any enmity or hostility, so that was a tie, above and beyond the obvious ones of nationality and a life spent mainly in Nigeria. The judge recorded at [13] that the appeal was in effect "submissions only" on the basis of the Appellant's evidence.
10. Some of that evidence consisted of statements of her personal opinion, with which the judge disagreed as he clearly indicated. He noted the submissions of both representatives as to the reasonableness of return of the elder child, which was plainly the focus of the tribunal's decision. The judge conducted an examination of the children's best interests at [20] onwards of the determination, and found that they were to return to the country of origin of their mother. The judge did not refer at that point expressly to section 117B of the Nationality, Immigration and Asylum Act 2002, but he had referred to the section at [14] when recording Mr Karim's submissions. Reasonableness was thus in his mind. Possibly it would have been advantageous to have cited section 117B, as that would have reduced the chance of the empty, technical challenge which was brought against the determination, but the substance was nevertheless addressed.

11. As indicated above, "reasonableness", derived from section 117B(6), part of the statutory public interest consideration applicable to the tribunal's consideration of Article 8 ECHR. The subsection is in the following terms:

"In the case of a person who is not liable to deportation, the public interest does not require the person's removal where -

(a) the person has a genuine and subsisting relationship with a qualifying child (defined in section 117D as a person under the age of 18 and who is (a) a British Citizen or (b) has lived in the United Kingdom for a continuous period of seven years or more), and

(b) it would not be reasonable to expect the child to leave the United Kingdom.

12. Again contrary to Mr Karim's submissions, on a fair reading of the decision and reasons, the judge examined reasonableness as required by section 117B in the context of the children's best interests, including their current and future education and the need to keep the family unit intact under their mother. That examination reflected and applied relevant authority such as Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 00197 (IAC). The judge plainly gave significant weight to the fact of the elder child's seven year presence but the powerful reasons to the contrary were his mother's immigration history and the public interest in removing her: see [74] of MA (above). There was no suggestion that the judge was wrong to find that there were no exceptional circumstances applicable to the children. He found that their removal would not be a punishment as they could adapt.

13. This appeal had no real merit and the Appellant was a long term overstayer as she was well aware. She had chosen to ignore past refusal decisions in 2013 and in 2015. Nothing of substance had changed. The failure of the Home Office to remove her and her children earlier created no rights for her or for them and her failure to respect the law is her responsibility.

14. The tribunal finds that this appeal has no substance and that there was no material error of law in the decision challenged.

DECISION

The making of the previous decision did not involve the making of a material error on a point of law. The decision stands unchanged.

Signed Dated

Deputy Upper Tribunal Judge Manuell