Tribunal decisions

The decision

IAC-TH-CP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/34766/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 June 2016
On 01 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHAERF

Between

Adenike Victoria Odebamowo
(anonymity ORDER NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms A Nizami of Counsel instructed by Perera & Co, solicitors
For the Respondent: Mrs R Pettersen of the Specialist Appeals Team

ERROR OF LAW DECISION AND REASONS

The Appellant
1. The Appellant is a citizen of Nigeria born in 1966. She claims she arrived in March 1995 and has been continuously present since that date. The Respondent considers she arrived on 19 April 2008 with a multi-visit visa and overstayed.
2. The Appellant states she has been in a relationship akin to marriage with a British citizen since 2004 and that coupled with the length of time she has been in the United Kingdom she could not re-integrate herself into life in Nigeria. She made an application for leave to remain by way of reference to paragraph 276ADE of the Immigration Rules and in the alternative, asserted her removal from the United Kingdom would place the State in breach of its obligations to respect her private and family life protected by Article 8 of the European Convention.
3. The Appellant has a daughter born in 1992 who is in the United Kingdom but there is no appeal on her part linked to the appeal of the Appellant.
4. The Appellant made an application for leave in 2010 which the Respondent refused with no in-country right of appeal. Some two years later, her solicitors made representations to the Respondent who reconsidered the application and on 21 August 2014 issued a decision to refuse the application which carried an in-country right of appeal.
The Respondent's Decision
5. The Respondent considered the Appellant met the "suitability requirements" of Appendix FM S-LTR.1 and the eligibility requirements of paragraphs E-LTRP other than the fact that her Islamic marriage was not recognised in the United Kingdom. The Respondent did not accept her relationship with her partner was genuine or that it had subsisted for at least two years prior to the date of decision. Her daughter did not qualify as an eligible child under Section EX.1 because she was over the age of 18.
6. The Respondent rejected the Appellant's claim based on her private and family life. She did not meet any of the relevant time period requirements of paragraph 276ADE, there was evidence she had not come to the United Kingdom until 2008 and there were no insurmountable obstacles (Appendix FM Section EX.2) to her returning to Nigeria and continuing her relationship with her partner and her adult daughter. There were no exceptional circumstances to justify the Respondent's consideration of the application under Article 8 of the European Convention outside the Immigration Rules.
7. On 3 September 2014 the Appellant through her solicitors lodged notice of appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002 as amended (the 2002 Act) together with a Statement of Additional Grounds in response to a notice under Section 120 of the 2002 Act. The grounds assert that the Appellant arrived in 1995 and her daughter in 2008; that she has been in a relationship with her British citizen partner since 2004, and co-habiting since 2010 and that they had entered into a religious form of marriage on 17 December 2011. Her daughter had been in the United Kingdom since the age of 15 where she had received secondary and higher education but could not go to university because of her irregular immigration status. The Appellant and indeed her daughter had established private and family lives in the United Kingdom into which society they were fully integrated. Their removal would be an unjustified interference with their private and family lives and in particular that of the Appellant.
The First-tier Tribunal's Proceedings
8. By a decision promulgated on 1 October 2015 Judge of the First-tier Tribunal Kelly dismissed the Appellant's appeal on all grounds. She accepted the Appellant's relationship with her partner was genuine and subsisting. She did not decide whether the Appellant arrived in 1995 or 2008 on the basis that in any event the Appellant's position in the United Kingdom was throughout precarious and she had no reasonable expectation that she would be given leave to stay on a longer term basis. She had embarked on her relationship with her partner in the full knowledge of that.
9. The Appellant in her own name sought permission to appeal which on 5 May 2016 Judge of the First-tier Tribunal Landes granted because Judge Kelly had arguably erred in law in her treatment of the relationship of the Appellant and her partner. She had also arguably erred in failing to consider the Appellant's partner had minor children from a previous relationship living in the United Kingdom.
10. The Respondent filed a formal notice under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and Ms Nizami filed a skeleton argument to which I shall later refer.
The Upper Tribunal Hearing
11. The Appellant and her husband were present with her daughter and a family friend. Other than to confirm her address she took no active part in the proceedings. I explained to her the nature of an error of law hearing and the procedure to be followed.
Submissions for the Appellant
12. Ms Nizami submitted that the Judge had erred in considering the appeal on the basis that the Appellant's application had been made on 14 February 2010: see paragraph 5(iv) of the Respondent's reasons letter of 21 August 2014. The consequence of this was the Judge had found the Appellant's husband did not satisfy the definition of a "partner" in paragraph GEN.1.2 of Appendix FM to the Immigration Rules. This was the essential point made in her skeleton argument. The error was of sufficient consequence to amount to a material error of law.
13. She continued that as part of the representations leading to the decision under appeal the Appellant had sent through her solicitors by a letter of 1 July 2014 what was described as a statement under Section 120 of the 2002 Act. I noted a further copy had been attached to the grounds of appeal.
14. The Respondent at paragraph 6 of the reasons had accepted that the Appellant's application was effectively made on 1 July 2014. The Judge had therefore erred at paragraph 25 of her decision by noting that for the Appellant's partner to meet the requirements of the definition of Section GEN:2(iv) the relationship akin to marriage needed to have commenced in or before 2008 but the Appellant's evidence was that it had commenced in 2010: see paragraph 4 of her statement of 16 December 2014. If her partner met the definition or requirements of Appendix FM then the Judge was required to consider whether Section EX.1 applied and to consider whether there were "insurmountable obstacles" as referred to in Section EX.2preventing the continuance of family life outside the United Kingdom. The error was compounded because it infected the Judge's assessment of the Appellant's claim under Article 8 of the European Convention outside the Immigration Rules. The decision of the First-tier Tribunal contained a material error of law and should be set aside.
Submissions for the Respondent
15. Mrs Pettersen relied on the response filed under Procedure Rule 24 but quite properly accepted the submission that the decision of 21 August 2014 was made on the basis of the further representations made in 2014 which should be treated as a new application.
Consideration and Conclusion
16. I accept the submission made by Ms Nizami that the decision now under appeal was made in 2014 after further representations made in the same year. Consequently, the Appellant's relationship with her partner needed to be assessed by reference to the two previous years and not back to the years previous to 2010. No point was taken by the Respondent against this submission. I find the Judge erred in this respect and that the consequence is the First-tier Tribunal's decision contains a material error of law. Both parties requested the matter be remitted to the First-tier Tribunal for a fresh decision based on the finding that the Appellant and her partner entered into a relationship akin to marriage on 21 September 2010 and that the relationship was genuine and subsisting at least up to 9 June 2016, being the date of the error of law hearing in the Upper Tribunal.
17. The parties were not ready to proceed to a substantive hearing. The hearing afresh will need to focus on the circumstances of the Appellant, with a view to an assessment whether there are "insurmountable obstacles" to her return with or without other members of her family within the meaning of Section EX.2 of Appendix FM and whether there are "very significant obstacles" to the Appellant's integration into Nigeria for the purposes of paragraph 276ADE(vi) of the Immigration Rules. I take account of Section 12 of the Tribunals, Courts and Enforcement Act 2007 and paragraph 7 of Part 3 of the Practice Directions of the Senior President and direct that the appeal be remitted to the First-tier Tribunal for hearing afresh on the lines already indicated.
Anonymity
18. There was no request for an anonymity order and having considered the appeal I find none is warranted.

NOTICE OF DECISION

The decision of the First-tier Tribunal contained a material error of law such that it is set aside subject to the preservation of the findings mentioned above.

No anonymity order is made.

Signed/Official Crest Date 29. vii. 2016

Designated Judge Shaerf
A Deputy Judge of the Upper Tribunal