Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31154/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26th October 2015
On 17th December 2015

Before

DEPUTY UPPER TRIBUNAL JUDGE RIMINGTON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

TA
(aNONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: Mr M Al-Rashid of Carlton Law Chambers

DECISION AND REASONS
The Appellant
1. The appellant is a citizen of Nigeria born on [ ] 1961 and he appeals against a decision of the respondent dated 25th July 2014 to refuse his application under Appendix FM and paragraph 276ADE of the Immigration Rules.
2. On 31 August 2011 the appellant entered the UK as an EEA family member (spouse) with a residence permit valid until 21st March 2002. He was granted a residence permit on 24 January 2002 which conferred leave until 24 January 2007. On 2 July 2003 his residence card was revoked as his marriage was no longer subsisting. Subsequent applications by the appellant were refused by the Secretary of State including applications by Ms A (his partner) and C1, born in Nigeria in July 2003, for entry clearance as visitors. They entered the UK illegally on 3 June 2004. Subsequent applications were also refused and in September 2006 C2 was born.
3. On 2 January 2008 TA made an out of country entry clearance application which was refused in January 2008 and in September 2009 C3 was born. On 1 April 2010 the appellant submitted an application for leave to remain in the United Kingdom under the Human rights Act (Article 8) which was refused on 21 June 2010. He became appeal rights exhausted. On 9th October 2012 he submitted an application for leave to remain which was refused. On 4 November 2013 the appellant requested a reconsideration of that application for leave to remain on human rights grounds and following judicial review proceedings, the Secretary of State again refused the appellant's application under Appendix FM and paragraph 276ADE of the Immigration on 25th July 2014.
4. The appellant appealed and the matter came before Judge Nicholls who identified that there had been a determination on 16th December 2011 which was the starting point for the purposes of the appeal. He allowed the appeal on human rights grounds. The judge specifically noted that there were no valid appeals for the partner and children.
5. An application for permission to appeal was made by the Secretary of State and in a decision dated 6th October 2015, I found an error of law in the decision of Judge Nicholls and the decision was set aside. The matter was resumed before me.
The Hearing
6. At the hearing a medical note from [hospital] dated 23rd October 2015 was submitted showing that the appellant's wife was treated for epilepsy. Mr Melvin indicated that he did not wish to cross-examine the child C1, who was available to give evidence if required. One of the key issues was whether it was reasonable for the children to relocate to Nigeria.
7. It was agreed that although the appeal related to the father the interests of the children needed to be considered under S55 of the Borders Citizenship and Immigration Act 2009 and the Beoku-Betts v SSHD [2008] UKHL 39 principle (that the impact of the interference of the appellant's human rights on other family members should be taken into account).
8. In examination-in-chief the appellant confirmed that he had left Nigeria 24 years ago and spent the last fourteen years in the UK. He was married under the customary marriage in Nigeria to his current partner and had three children two of whom were born in the UK. Evidence was produced to the Upper Tribunal from their local primary school. The appellant stated that since his last hearing his mother had passed away on 29th September 2015 from a stroke. There was no documentary evidence of this.
9. Under cross-examination Mr Melvin asked the appellant if he had left Nigeria at the age of 30 years and the appellant agreed that he had. He stated, however, that his education finished in 1985 at the age of 25 years. Whilst he was working in Nigeria he was working in the palm oil business and he then went to Greece and spent twelve years in Greece where he also worked. He came to the UK in 2001 and worked as a carer. He stated that there was no employment in Nigeria and no healthcare system and most people were cared for by their family. He was asked why he could not take another employment to support his family and he stated that there was nothing he could do. He had lost contact with the palm produce business.
10. He stated that the issue was about his children. He could cope but the issue was his children, who had no links to Nigeria. There was no infrastructure there. He had been repeatedly applying to the Home Office and did not wish to work illegally as he was doing at present. He had been advised by his solicitors to make repeated appeals. He stated that his sisters were in Lagos but they had no financial capacity to support the family as they were farmers.
11. He stated that state education was not free in Nigeria and that it was not taught in English. In his local area they spoke Igbo.
12. He also stated that the Catholic Church, of which his family were members, was not common in Nigeria.
13. He had no evidence of any research of trying to find employment in Nigeria or opportunities as a carer.
14. His eldest child was now 12 years old and was in year 2 and was preparing for GCSEs. His son was undertaking examinations at the moment and was also involved in rugby and football.
15. Under re-examination he confirmed that he had not been dependent on welfare.
16. In submissions Mr Melvin referred to EV (Philippines) [2014] EWCA Civ 874 in paragraphs 49 and 58 and stated that the appellant was attempting to piggyback on the claims of his children. The appellant has deliberately made repeated applications to prevent his removal. The family including the children had benefited from primary and secondary education and the NHS in this country. There was no lack of education in Nigeria and there was primary and secondary education and the family could relocate in the capital and although it might be in the children's best interests to enjoy a full education here the family were all Nigerian nationals with no leave to remain. It was reasonable to expect the children to remove when the parents had no right to remain. It was accepted that the children may need to make new friends but the appellant was not credible when he stated that the 12 year old was taking GCSEs. He was not.
17. There was no indication that the wife's condition could not be treated in Nigeria and the death of the mother had not been substantiated.
18. Mr Al-Rashid submitted that the children were three young children and the appellant was merely trying to look after his children's best interests. He referred to ZH (Tanzania) v SSHD [2011] UKSC 4 and noted that the children were not appellants but their interests should be taken into account. The two eldest children had been present in the UK in excess of seven years.
19. In EV (Philippines) the children in that case had only been present in the UK for three years and nine months. The significance of Azimi-Moayed and others (decision affecting children; onwards appeals) [2013] UKUT 197 IAC was irrelevant and the reasonableness test under EX.1 and paragraph 276ADE was referred to.
20. I pointed out that Section 117 was relevant as the appellant was the only appellant and he could not succeed under either paragraph 276ADE or the Immigration Rules, Appendix FM.
21. Mr Al-Rashid cited Azimi-Moayed and stressed the importance of the presence of the children from four years onwards was likely to be more significant and that such was indeed the case with C1 and his younger siblings.
22. There were only limited countervailing factors which were present and there was a significant degree of integration.
23. The evidence showed that C1 was a talented child and the letters from the school indicated his great potential. The level of integration was very significant and I was invited to find that it was not reasonable for the children to be relocated. The father was working illegally but the mother was not working.
24. Nigeria was not an exempted country in relation to the English language requirements under the Immigration Rules. It was not right that English was the main language. I was referred to R (Agyarko and Others) v SSHD [2015] EWCA Civ and I should consider the best interests of the children. This identifies that 'The "insurmountable obstacles" criterion in section EX.1 was a precondition, that needed to be satisfied before an A could be granted leave under the Rules. But in the context of a wider Article 8 assessment outside the Rules, it was a factor to be taken into account not an absolute requirement'.
Conclusion
25. Further to the requirements under Appendix FM the appellant cannot succeed under the partner requirements because his partner is not a British citizen in the UK or present and settled or in the UK with refugee leave or a person with humanitarian protection contrary to paragraph E-LTRP.1.2. His wife is a Nigerian national who entered the country illegally.
26. Nor can the appellant make use of family life as a parent of a child in the UK. The Immigration Rules read in this regard as follows:
"E-ECPT.2.3. Either -
(a) the applicant must have sole parental responsibility for the child; or
(b) the parent or carer with whom the child normally lives must be -
(i) a British Citizen in the UK or settled in the UK;
(ii) not the partner of the applicant; and
(iii) the applicant must not be eligible to apply for entry clearance as a partner under this Appendix.
E -ECPT.2.4.
(a) The applicant must provide evidence that they have either -
(i) sole parental responsibility for the child; or
(ii) direct access (in person) to the child, as agreed with the parent or carer with whom the child normally lives or as ordered by a court in the UK; and
(b) The applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child's upbringing."
27. The appellant cannot comply with either of these eligibility requirements. Therefore EX.1 does not apply.
28. The appeal was in relation to the appellant himself and I find that he cannot succeed under the Immigration Rules, in particular paragraph 276ADE. The appellant has not been living continuously in the UK for twenty years and further to paragraph 276ADE(6) although he is over the age of 18 I do not find that there would be very significant obstacles to the appellant's integration into the country into which he would have to go if required to leave the UK. It was conceded by Mr Al-Rashid that the appellant could not comply with the Immigration Rules and indeed the appellant himself stated that he himself could return to Nigeria but it was his children that were the difficulty. I am not persuaded that there are very significant obstacles to the appellant's own reintegration in Nigeria. For the benefit of doubt I enlist my arguments in relation to my findings below in relation to the children.
29. I turn to a consideration of Article 8 on the basis that not all the factors had been considered further to Singh v SSHD [2015] EWCA Civ 74 and that would include a full exploration of the circumstances of the children. SS Congo v SSHD [2015] EWCA Civ 317 indicates that there must be compelling factors in order to consider the matter outside the Immigration Rules. That said, SS Congo v SSHD [2015] EWCA Civ 317 referred to a large degree on entry clearance and I note that the family are seeking leave to remain. The factors however of the health of the mother and the length and time period of the children's residence in the United Kingdom are important factors which were not fully explored in the decision letter. The real question is whether the children could be reasonably expected to leave the UK and whether the appellant can rely on their claim. There is no doubt that the appellant's removal would have an impact on the children under the Beoku-Betts principle and I apply the five stage test enunciated in Razgar v SSHD [2004] UKHL 27.
30. There will be interference with the appellant's private life but the decision made is in accordance with the law as set out through the Immigration Rules. Those rules are for the legitimate purpose of the protection of rights and freedoms of others through the maintenance of immigration control. The next question would be the proportionality.
31. With that in mind I turn to the consideration of the children's best interests. Normally my starting point with regards the children would be the decision of Judge Hembrough of 16th December 2011 in accordance with Devaseelan [2002] UKIAT 00702. This must, however, be placed in the context of the passage of time. Nonetheless some of those findings of that decision are relevant to my consideration. The children are now 12, 9 and 6 years old and all at school. The first child was born in Nigeria and the second two children were born in the United Kingdom. I accept that they have entered the education system here and will speak English. None of the children speak Igbo.
32. At paragraph 24 of Judge Hemborough's decision it was recorded that the appellant confirmed that English was commonly spoken in Nigeria and it was the medium of tuition in the Nigerian education system. It was accepted in that decision that the children were unfamiliar with the culture, the food and the weather but it was also submitted that Mrs A was a qualified accountant in Nigeria but was depressed here in the UK through the instability of their situation, [paragraph 30]. Mrs A confirmed that she had family in Nigeria.
33. As stated at paragraph 59 Judge Hemborough found the children appeared to excel in the UK and with appropriate support there was no reason why they should not thrive in Nigeria. I too find that to be the case. As Judge Hembrough stated:
"I have already found it reasonable to infer that the family would enjoy a comparatively comfortable lifestyle in Nigeria. I have noted that despite being orphaned at the age of 6 Mrs A was able to progress through the Nigerian school system to university and on to a professional qualification. It was not explained why her son would be unable to follow the same path. There was no evidence as to how his educational or social development would be adversely affected by removal to Nigeria",
and at paragraph 60 Judge Hembrough stated quite clearly that:
"There would be some disruption to his education and social circle in the short term but there was no evidence as to any long-term prejudice to his welfare. I note that he is still in the primary stage of his education in the UK and will within the next year or so have to contemplate a change of schools and possibly his peer group when he moves on to secondary education."
34. I do not accept the appellant's contention that the elder child C1 is preparing for his GCSEs as he is only in year 2 in secondary school. Nonetheless he is in secondary school and the letters produced indicate that he has settled there. I find that although C1, the eldest child, has moved to secondary education there is no reason to suppose that he could not adapt to life in Nigeria. Despite the cultural issues and the fact that he is unfamiliar with life in Nigeria, he will not face isolation as he will have his family with him.
35. The decision letter from the Secretary of State indicated that the national language in Nigeria as well as that of the Nigerian educational system is English, which was in fact referred to in the appellant's previous appeal on 16th December 2011 (paragraph 49 of the appeal hearing IA/29043/2011). That said, the COI Report dated June 2013 confirmed that "public schools remained substandard, and limited facilities precluded access to education for many children. ? However, authorities rarely provided compulsory primary education, and often charged numerous mandatory school fees." I do not accept with reference to the Country of Origin Information Report that certainly in the city areas that education is not presented in English.
36. There is evidence that there is further education in Nigeria and indeed the appellant's partner had acquired a university degree there. It may not be the same standard that has been available in the UK, nonetheless there is education.
37. I take into account that there should be an overall assessment of the children's interests MK (best interests of child) India [2011] UKUT 00475 (IAC) and I note Azimi-Moayed and others (decision affecting children; onwards appeals) [2013] UKUT 197 IAC and particularly that the two older children have now been in the UK for in excess of seven years. C1 who was born in 2003 came at the age of ten months and is now in year 2 at secondary school. He had been in the UK since 3rd June 2004. By the date of the application of the appellant C1 has spent 8 years in the United Kingdom and by the date of the hearing before me he had been in the United Kingdom for 11 years. From the age of 4 years (which is a relevant age although after he came to the UK), C1 had spent 8 years in the UK. The second child was born in September 2006 and has spent all his life and 9 years in the United Kingdom and thus five years on from the age of four. The third child was born in September 2009 and has spent 6 years in the United Kingdom. That child is very young and his life will be centred essentially on the parents. They must have grown accustomed to life and friends here but the two younger children are still in primary education and their primary support network will be that of their own family and parents who are both Nigerian nationals and who are accustomed to the culture there and can assist the children in adapting.
38. I consider the situation of the mother when assessing the best interests of the children. The appellant also stated that his wife did not work in the UK, which may be the case presently but at paragraph 35 of the appeal hearing IA/29043/2011 it was clear that the appellant had obtained experience and qualifications whilst working in the UK and that his partner was a qualified accountant in Nigeria. Both the appellant and his partner had spent formative years in Nigeria and both the appellant and the appellant's wife had siblings in Nigeria. Indeed the appellant's partner had two sisters residing in Nigeria as at 2011 and even if this was no longer the case the appellant confirmed that he himself had sisters living in Lagos. I find that it would be in the interests of the children to reconnect with their family back in Nigeria and it would appear that there is still a family network residing there. It would not be in the children's best interests to lose their social, cultural and family ties to their home country.
39. I take into account the written statement of the older child, who stated he would not like to be sent back to Nigeria because he had achieved a great deal due to his opportunities here. I am aware that he has friends but I am not persuaded that he would not be availed of opportunities equally in Nigeria.
40. It is open to the children to engage in their activities such as football and the church on their return to Nigeria and although the churches may be less frequent than they are here I have no doubt that as the evidence states that their skills are transferable.
41. The letters from the Head teachers of [school] (C1's School) dated 21st September 2015 and [primary school] dated 14th September 2015 confirmed that the children were making good progress. I accept the evidence regarding the settling of the children at school but it was clear that those letters were informed by the mother herself and I do not accept the information in them regarding her health and it was not clear how the Head teacher of the primary school would know that it was essential for the mother to access the medical expertise at Kings College Hospital. Both teachers in this regard strayed outside their remit. I have no doubt that should the residency issue be settled this would benefit the children and the mother's mental health. The letters only made reference to the talents of C1 but notably identified no special educational needs in any of the children. Nor was there any evidence that the three children suffered from any health issues.
42. I found it difficult to accept the very bleak picture given by the appellant regarding the prospects for the family life, and thus the children's interests, in Nigeria and that he was prone to exaggeration. He stated in the hearing, for example, that there was no infrastructure in Nigeria which is not consistent with the evidence of a health and education system there.
43. When considering the proportionality of the appellant's removal I find that the interests of the children are served in remaining with their parents in a stable family unit. The children are still relatively young and no doubt with the support of their parents will adapt particularly bearing in mind my findings on education above. There was no evidence of unusual or particular factors or that they had any special educational or health needs. It may be in the children's best interests to remain in the UK educationally but they will be returned with their parents in one family unit. Their key interests are to remain with their supportive parents in one unit. Further, it would not be in the children's interests to lose their own cultural heritage and to lose touch with their own extended family there. I find there is an education system and on balance I find it would be in their interests to return.
44. I consider whether it is reasonable to expect the parents to return to Nigeria. It is clear that their private life has been engaged but I am not persuaded that family life is engaged here as they will and can all be removed together.
45. Subsequent to the decision of Judge Hembrough there has been the introduction of Part 5A of the Nationality, Immigration and Asylum Act 2002 as follows;
117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English-
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons-
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) 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 parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
46. Little weight should be given to a private life formed whilst a person is unlawfully in the UK or a person's immigration status is precarious. Every family member, in this case, is in the United Kingdom unlawfully and has precarious status in the United Kingdom.
47. The appellant claims that he is financially independent and that he has not claimed benefits. He continued to work albeit illegally because he needed to support his family. As he has been working illegally there was no up to date evidence of any tax paid by the appellant. All three of his children were currently in education and his wife had made extensive use of the NHS system. I therefore find as a fact that they are not financially independent. The father and no doubt the mother can speak some English and I accept that the children can speak English fluently as they are at school.
48. I have taken into account the mother's ill health and that she has epilepsy and depression. I considered the letter from AS, Consultant neurologist dated 23 October 2015 from the Neurology Department at [hospital]. This was not on headed paper. Nonetheless the letter stated that the appellant's wife was under care and known to have epilepsy and frequent seizures although she did not expand on any functional restrictions and that she had required an admission. She was currently taking medication and the doctor was seeking to optimise and better control her seizures. This letter did not make reference to her inability to care for the children and did not say she could not be treated abroad or say anything about treatment abroad.
49. I am not persuaded, however, that she has any significant functional difficulties particularly as there was no evidence that she does not care for her three children. Indeed there was evidence that she took them to school. The GP stressed the uncertainty of the mother's residence in the UK was a factor in her depression. There was no evidence presented that there is no treatment for either medical condition in Nigeria and I apply GS (India) [2015] EWCA Civ 40 which approved the principle that the United Kingdom is under no Convention obligation to provide medical treatment here when it is not available in the country to which the appellant is to be removed.
50. Under Section 117B(6) of the Nationality Immigration and Asylum Act 2002 the public interest does not require the person's removal where
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
51. Both the two older children have lived in the UK for more than seven years and therefore meet the definition of a qualifying child. Section 117B(6) does not necessarily defeat the public interest but because I find that it is reasonable for the children to relocate I do not accept that the weight to be placed on the public interest is reduced by Section 117B(6). For the reasons given above I am not persuaded that it would be unreasonable to expect the children to leave the UK.
52. I am not persuaded that the appellant and his partner would have lack of access to sufficient resources to enable them to live somewhere other than the original family village. There was no background information to persuade me that they could not obtain satisfactory employment in Nigeria, particularly with their qualifications and experience. Bearing in mind the extensive working experience of the appellant in industry in Nigeria and abroad, I did not find the appellant in his evidence to be credible as to the lack of opportunities and his employment prospects in Nigeria. The statement from the grandmother dated September 2015 (whom the court was told had subsequently died) told of the poor circumstances in the family home but it is open to the family to relocate to their place of choice in Nigeria. The appellant has shown a resilience and resourcefulness when travelling and relocating outside Nigeria since the age of 30 years.
53. I also note that the best interests of the child are a consideration than the consideration. As stated in EV (Philippines) the parent relies on the best interests of his or her children in order to "piggyback" on their rights.
"In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?"
54. It is also pertinent to note the statement by LJ Lewison at [60]
'In our case none of the family is a British citizen. None has the right to remain in this country. If the mother is removed, the father has no independent right to remain. If the parents are removed, then it is entirely reasonable to expect the children to go with them. As the immigration judge found it is obviously in their best interests to remain with their parents. Although it is, of course a question of fact for the tribunal, I cannot see that the desirability of being educated at public expense in the UK can outweigh the benefit to the children of remaining with their parents. Just as we cannot provide medical treatment for the world, so we cannot educate the world'.
55. I take into consideration the immigration history of the appellant and note that this should not be visited on the children and I realise that the children in this case had not been here longer than the children in the EV (Philippines) case. However, my findings are such that the best interests of the children are not necessarily to be found in the UK but primarily are to be with their parents and in a place they can avail themselves of an education and enjoy their own cultural heritage. They are all Nigerian nationals. They are not financially independent and there is no reason to suppose that they cannot reasonably relocate as a family to Nigeria where they can obtain settled status. This is not a case as in ZH (Tanzania) where it would not be reasonable to expect the children to follow their mother to Tanzania because of the circumstances there.
56. The position of the Secretary of State is clearly set out in the Immigration Rules and I have taken that position into account. There is no doubt that the appellant and his wife have a very poor immigration history having either remained in the United Kingdom after having their appeal rights exhausted or in the case of the wife having entered illegally. None of the appellants have any right to remain and I give weight to the public interest. When balancing the rights of the parties I note the following:

Huang v SSHD [2007] UKHL 11
"In an Article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8."
Overall I find that it is reasonable to expect the family to relocate to Nigeria and I therefore dismiss the appeal.
57. I therefore dismiss the appeal under the Immigration rules and on human rights grounds.
Notice of Decision
The Appeal of TA is dismissed.
No anonymity direction is made.

Signed Date 4th December 2015

Deputy Upper Tribunal Judge Rimington

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date 4th December 2015

Deputy Upper Tribunal Judge Rimington