Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA364052014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 June 2016
On 14 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

jeU (nigeria)
(ANONYMITY DIRECTION made)
Respondent/Claimant

Representation:

For the Appellant: Mr S Whitwell, Specialist Appeals Team
For the Respondent: No appearance

DECISION AND REASONS

1. The Secretary of State appeals to the Upper Tribunal from the decision of the First-tier Tribunal allowing the claimant's appeal on Article 8 grounds under the Rules and also outside the Rules against the decision of the Secretary of State to remove him as an overstayer under Section 10 of the Immigration and Asylum Act 1999, his human rights claim having been refused. The First-tier Tribunal has not made an anonymity direction. However, as the central focus of this appeal is the impact on the claimant's children of removing them with their parents, I consider that it is appropriate to make an anonymity direction for these proceedings in the Upper Tribunal.
The Reasons for Grant of Permission to Appeal
2. On 9 May 2016 Judge Baker gave his reasons for granting the Secretary of State permission to appeal to the Upper Tribunal:
3. The grounds have merit in asserting that the FtTJ made an arguable material error of law in assessing the best interests of the appellant's eldest child born in 2006 in the UK. The decision does not address any background material submitted to support the appellant's assertions that the Downs Syndrome Foundation Nigeria would not be able to assist, referred to in paragraph 40 of the decision and reasons.
4. As asserted at paragraph 41 the FtTJ relies on statements made in oral evidence as to the father in law engaging in ritual practices as a cause for fear of non integration and difficulties for the child, as set out in paragraph 52.
5. Similarly, paragraphs 54 and 55 arguable contain material errors in the assessment of integration of the younger 4 year old child into Nigeria, suffering from autism. It is arguable there were material errors in reliance on the appellant's unsupported evidence, with reference to, for example, there being no guarantee of getting the children into an educational system tailored to their respective special needs.
Relevant Background
3. The relevant background is succinctly summarised in the skeleton argument relied on by Mr Al-Rashid of Counsel before the First-tier Tribunal. The claimant is a national of Nigeria. He last entered the United Kingdom lawfully as a visitor in November 2005. His wife is also a Nigerian national, and she last entered the United Kingdom lawfully as a visitor in the same year. On [ ] 2006, the claimant's wife gave birth to their first son, DOU. He was diagnosed with Downs Syndrome. As a consequence of this (Mr Al-Rashid submitted) the parents overstayed their respective visas. On [ ] 2010 the claimant's wife gave birth to a second son, DGU, who has since been diagnosed with autism. Both children were described as children with "significant special needs" by Consultant Paediatrician, Dr Hutchins. The claimant's wife gave birth to a third child on 15 January 2013.
4. The claimant is first recorded as having sought to regularise his immigration status on 6 November 2009, when he applied for leave to remain on Article 8 grounds. The application was refused on 19 April 2010. The claimant made a second application on 9 March 2013, which was refused on 13 June 2013.
5. David Grand, a non-practising barrister, made further representations on behalf of the claimant and his family members in May 2014, which led to the Secretary of State giving reasons for removing the claimant and his dependants in a letter dated 8 September 2014. Although the claimant was served with an IS.151B notice, giving him an in-country right of appeal, the other family members were not issued with appealable immigration decisions. So, as was acknowledged by Mr Grand in subsequent correspondence with the Home Office, the other family members have no independent right of appeal.
6. In the refusal letter directed to the claimant, the Secretary of State's case was that he could not invoke EX.1 as he did not meet the required eligibility criteria under Appendix FM as either a partner or parent. His child DOU had been assessed under Rule 276ADE. He had been born in the United Kingdom on 6 May 2006. He had not spent his formative years in the United Kingdom, which were from the age of 7 to 14 years, in order for leave to remain to be granted on private life grounds, and it was not accepted that the removal of DOU would cause exceptional disruption to his life. The second child, DGU, was born in the United Kingdom on 1 September 2010. So he had only been resident in the United Kingdom for three years, which is less than the seven years required under Rule 276ADE(1)(iv) of the Rules in order for LTR to be granted on the grounds of private life.
7. In the representations made in May 2014, it was claimed that it was in the best interests for the children to stay in the United Kingdom as unnecessary removal might negatively impact upon their psychological and moral integrity. But the claimant had endeavoured to meet all the needs of his children while he had been living in the UK, and he would continue to be able to do so in Nigeria. It is a generally agreed principle that children should grow up within their own family and their own cultural identity, wherever possible. The children had only spent a few years within the British education system, and therefore they were not fully integrated within it. Furthermore, they were not at a critical stage of their schooling and any changes to their education would not have a detrimental effect on their development. The quality of education in Nigeria might not be to the same standard as what it was in the United Kingdom, but that alone was not a sufficient factor to justify allowing them to remain in this country. The claimant had no legitimate expectation of family life continuing in the United Kingdom indefinitely and for his two children to be educated here.
8. Careful consideration had been given to the claim that DOU had Downs Syndrome. The claimant had previously submitted a letter issued on 19 December 2012 from Ealing Hospital NHS Trust. This stated that Downs Syndrome is a permanent condition and there is no cure. The same letter stated that DOU had no medical illnesses or needs as a result of his Downs Syndrome, and so he would not be at risk medically if he was to live in a different country.
9. In a further letter dated 4 July 2013, the same hospital said they suspected that the equipment required for the child's Downs Syndrome would not be readily available in Nigeria. This was not accepted. The Downs Syndrome Foundation [of] Nigeria was a charity which was set up in 2001 to help people with Downs Syndrome in Nigeria. This charity would help the claimant's child with the equipment that he needed for his Downs Syndrome.
10. Consideration had also been given as to whether there were exceptional circumstances warranting a grant of leave to remain. The claimant had not held any leave to remain since his visit visa expired on 5 July 2005. He was in the UK unlawfully, and had remained here illegally while failing to regularise his stay here. Taking all known information into consideration, it was not accepted that there would be any circumstances beyond the claimant's control that would prevent him and his family from returning to Nigeria.
The Hearing before, and the Decision of, the First-tier Tribunal
11. The claimant's appeal came before Judge Haria sitting at Hatton Cross on 27 April 2015. There was no appearance on behalf of the Secretary of State. As previously indicated, Mr Al-Rashid of Counsel appeared on behalf of the claimant, instructed by David Grant.
12. In his skeleton argument, Counsel submitted that the assessment in the refusal letter in respect of DOU was legally flawed. There was no consideration of his health condition in the assessment of Rule 276ADE(1)(iv), and there was a failure to recognised that DOU was a qualifying child under Section 117D of the 2002 Act. He cited EM (Zimbabwe) [2011] UKUT 98 for the proposition that, in the absence of countervailing factors, residence over seven years of children well integrated into the educational system in the UK was an indicator that the welfare of the child favoured regularisation of the status of the mother and children. On the evidence, the claimant met the requirements of EX.1 and therefore the claimant was entitled to succeed under the Rules.
13. As DOU was a qualifying child under Section 117D, Section 117B(6) applied to the claimant, and there was thus no public interest in his removal.
14. In respect of DOU's private life, reliance was placed upon his medical condition and the decision of the UT in GS & EA (Article 3 - health cases) [2012] UKUT 00397 and in Akhalu (Health claim: ECHR Article 8) [2013] UKUT 400, where the principle in GS was upheld.
15. In her subsequent decision, Judge Haria found that the claimant satisfied the requirements of EX.1(a), for the reasons she gave in paragraphs 37-43. She went on to consider the private life claims of the various family members, and found that the claimant and his wife would not experience significant obstacles to reintegration into life in Nigeria. The claimant seemed to be a very resourceful person, as evidenced from the fact that he managed to support his family in the UK. On the other hand, there would be very significant obstacles to DOU's integration into Nigeria. He was unlikely to be able to continue his education in a special school for children as he suffers from Downs Syndrome. He would no doubt have the support of his parents, and he would be able to see his grandparents. But it seemed that, due to their belief in voodoo, he might be subjected to ritual exorcism and it was not certain that they and his extended family members would understand his condition and be supportive. The same applied to DGU, who also had complex needs as a result of his autism.
16. The judge went on to consider the case outside the Rules, and gave her reasons for findings that it was in the best interests of DGU and DOU to remain in the United Kingdom. With regard to the charity referred to in the refusal letter, she said that there was no objective evidence before her in relation to provision for DOU's educational needs. She accepted the explanation given by the claimant in his witness statement as to why the charity was unlikely to be able to assist DOU.
17. At paragraph 84, the judge reached the conclusion that although the decision was clearly in pursuance of the legitimate aim of maintaining immigration control, it was not in accordance with the law and it was disproportionate to that lawful and legitimate aim.
18. The judge then moved on to consider proportionality in the context of the factors set out in Section 117B of the 2002 Act.
19. After setting out the relevant provisions of Section 117B, she stated at paragraph 88 that having regard to the matters previously discussed, the need to maintain effective immigration control did not in this case outweigh the children's rights to family and private life. There would obviously be some burden on the tax payer in that the children would be entitled to education and to access the NHS. But the public interest in the claimant's removal was outweighed by DOU's and perhaps to a lesser extent DGU's rights to family and private life, and the removal decision was not proportionate, since it was in their best interests to remain with their parents.
20. She concluded by saying that Mr Al-Rashid did not pursue an Article 3 claim with any vigour, so it was not necessary for her to deal with that issue.
The Hearing in the Upper Tribunal
21. At the hearing before me to determine whether an error of law was made out, there was no appearance by or on behalf of the claimant. Mr Whitwell informed me that the reason for the absence of legal representation was limited financial resources. He had spoken to Mr Grand, and he understood from Mr Grand that priority was been given by the claimant to funding an application for naturalisation. Mr Whitwell submitted that the decision should be set aside for the reasons given in the permission application.
Discussion
22. The Court of Appeal decision in EV (Philippines) [2014] EWCA 874 illuminates the inter-relationship between the assessment of the best interests of children affected by an immigration decision and the related question of whether it is reasonable to expect a child who has accrued seven years' continuous residence here to return with his or her parents to their common country of origin.
23. Clarke LJ said:
34. In determining whether or not, in a case such as the present, the need for immigration control outweighs the best interests of the children, it is necessary to determine the relative strength of the factors which make it in their best interests to remain here; and also to take account of any factors that point the other way.
35. A decision as to what is in the best interests of children will depend on a number of factors such as (a) their age; (b) the length of time that they have been here; (c) how long they have been in education; (c) what stage their education has reached; (d) to what extent they have become distanced from the country to which it is proposed that they return; (e) how renewable their connection with it may be; (f) to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and (g) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens.
36. In a sense the tribunal is concerned with how emphatic an answer falls to be given to the question: is it in the best interests of the child to remain? The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child's best interests that he should not return, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child's best interests to remain, but only on balance (with some factors pointing the other way), the result may be the opposite.
37. 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 well-being 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.
24. Lewison LJ said:
49. Second, as Christopher Clarke LJ points out, the evaluation of the best interests of children in immigration cases is problematic. In the real world, the appellant is almost always the parent who has no right to remain in the UK. The parent thus relies on the best interests of his or her children in order to piggyback on their rights. In the present case, as there is no doubt in many others, the Immigration Judge made two findings about the children's best interests:
(a) the best interests of the children are obviously to remain with their parents; [29] and
(b) it is in the best interests of the children that their education in the UK [is] not to be disrupted [53].
50. What, if any, assumptions are to be made about the immigration status of the parent? If one takes the facts as they are in reality, then the first of the Immigration Judge's findings about the best interests of the children point towards removal. If, on the other hand, one assumes that the parent has the right to remain, then one is assuming the answer to the very question the Tribunal has to decide. Or is there is a middle ground, in which one has to assess the best interests of the children without regard to the immigration status of the parent?
25. The judge went on to analyse in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 in order to elicit an answer to this question. He reached the following conclusion:
58. In my judgment, therefore, the assessment of the best interests of the children must be made on the basis the facts are as they are in the real world. 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?
On the facts of ZH it was not reasonable to expect the children to follow their mother to Tanzania, not least because the family would be separated and the children would be deprived of the right to grow up in the country of which they were citizens. That was a long way from the facts of the case before them. No-one in the family was a British citizen. None had the right to remain in the country. If the mother was removed, the father had no independent right to remain. With the parents removed, then it was entirely reasonable to expect the children to go with them:
60. 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.
Jackson LJ agreed with both judgments.
The relationship between s117B(6) and the Rules - Treebhawon explained
26. In AM (S117B) Malawi [2015] UKUT 260 (IAC) the Tribunal held that the duty of the First-tier Tribunal was quite clear. The First-tier Tribunal was required to have regard to considerations listed in Section 117B. It had no discretion to leave any of those considerations out of account, if it was a consideration that was raised on the evidence before it. The Tribunal continued in paragraph [13]:
There is also in our judgment no requirement that the FtT should pose and answer the same question more than once, simply as a matter of form. Thus since both paragraph 276ADE(1)(iv) of the Immigration Rules, and S117B(6), both raise the same question in relation to a particular child, of whether or not it would be reasonable to expect that child to leave the UK: it is a question that need only be answered once.
27. At paragraph [23] of Treebhawon & Others (Section 117B (6)) [2015] UKUT 674 (IAC), a Presidential panel held that when a Tribunal is first considering an appellants' Article 8 claim by reference to the Immigration Rules, the purpose of the exercise is to decide whether relevant qualifying conditions are satisfied by the person concerned, and that the exercise is performed without reference to Part 5A (and hence Section 117B). The latter is engaged directly only where the decision making process reaches a stage of concluding the person does not satisfy the requirements of the Rules.
28. Part 5A does not apply to the exercise conducted under the Rules, following Treebhawon. But this is academic, as the domestic jurisprudence requires the decision-maker to assess relevant public interest considerations arising under Article 8(2) - such as the strong weight "to be given to the need to maintain immigration control in pursuit of the economic well-being of the country and the fact that, ex hypothesi, the applicants have no entitlement to remain" - before reaching a conclusion under Rule 276ADE as to whether it is reasonable to require a child who has accrued seven years' residence to leave the UK.
Ground 1
29. Ground 1 is that the judge misdirected herself in finding that EX.1(a) applied. The Secretary of State's contention is that the judge ought to have directed herself that the claimant could not avail himself of EX.1(a) as E-LTRPR.1.1 required that all the requirements contained in E-LTRPR.2.2 to 2.4 are satisfied in order for EX.1 to potentially apply. The claimant did not satisfy E-LTRPT.2.3 which provides that either -
(a) the applicant must have sole responsibility for the child or the child normally lives with the applicant and not their other parent (who is a British citizen or settled in the UK);
(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) (ii) not a partner of the applicant ?; and
(iii) the applicant must not be eligible to apply for leave to remain as a partner under this Appendix.
30. Section R-LTRPT sets out the requirements for limited leave to remain as a parent. The requirements in sub-paragraph (d) are:
(i) the applicant must not fall for refusal under S-LTRR: suitability leave to remain; and
(ii) the applicant meets the requirements of paragraphs E-LTRPT.2.2 - 2.4 and E-LTRPT.3.1; and (my emphasis)
(iii) paragraph EX.1 applies.
31. Judge Haria set out in her decision at paragraph 33 the relationship requirements in E-LTRPT.2.2 - 3.1 but she did not cite the relevant requirements of R-LTRPT.1.1. As a result, she appears to have proceeded on mistaken premise that the claimant only needed to satisfy the requirements of E-LTRPT.2.2 in order to be able to invoke EX.1(a). It is clear from Section R-LTRPT that to qualify for limited leave to remain as a parent the applicant must meet the requirements of E-LTRPT.2.3, 2.4 and 3.1 as well as the requirements of E-LTRPT 2.2. So I find that ground 1 is made out.
32. Mr Whitwell submits that the judge's error with regard to EX.1(a) is particularly significant on the facts of this case, as only the claimant has a right of appeal. The effect on the claimant of not being able to invoke EX.1(a) is that the claimant cannot "piggyback" on his older child as a child who has accrued over seven years' continuous residence in the UK. This means, Mr Whitwell submits, that the claimant has to surmount the additional hurdle of showing that there are compelling circumstances outside the Rules so as to justify him piggybacking successfully on the rights of his older child.
33. There is some force in Mr Whitwell's submissions, but the counter-balancing consideration is that the rights of the older child come into play under Rule 276ADE(1)(iv) in any event, as is recognised in the refusal decision. In addition, following AM (Malawi), prima facie the answer as to whether the claimant can successfully piggyback on the rights of his older child should be the same whether the question is considered in the context of EX.1(a) or in the context of Rule 276ADE(1)(iv) or under Section 117B(6) of the 2002 Act.
34. However, on the particular facts of this case, I consider that the judge's error is material to the outcome because it has led to, or is coincidental with, an unbalanced assessment of the children's best interests and the associated question of unreasonableness.
35. The judge cites the relevant provisions of EV (Philippines) at paragraphs 72 and 73, but by this stage she has already decided that it is unreasonable to expect the older child to leave the United Kingdom in the context of EX.1(a); and the reasoning which underpins her finding on EX.1(a) is heavily skewed towards the best interests considerations in favour of the child remaining here, with factors pointing the other way being swept aside or ignored. In addition, no apparent account is taken by her in the discussion of EX.1(a) of the strong weight to be given to the need to maintain immigration control in pursuant of the economic well-being of the country and the fact that the parents have no entitlement to leave to remain. Moreover, there is no reference at all to the adverse immigration history of the parents before the conclusion is reached at paragraph 43 that it would not be reasonable to expect the older child to leave the United Kingdom, with the consequence that his welfare requires the regularisation of the status of the father, the mother and the other children.
36. The flawed approach to EX.1(a) is replicated in the assessment of DOU's private life claim under Rule 276ADE(1)(iv), and in the judge's consideration of s117B(6). As to the latter, the judge makes a further error in only considering s117B after she has already decided at paragraph 84 that the removal of the claimant is disproportionate. The factors arising under s117B are integral to the assessment of proportionality, and they should not be treated as an add-on.
37. Among other things, the judge did not engage with the ratio of the two cases on health claims cited by Counsel. Of particular note is the headnote in Akhalu. This states that the consequences of removal for the health of a claimant who would not be able to access equivalent health care in their country of nationality is plainly relevant to the question of proportionality:
But when weighed against the public interest in ensuring that the limited resources of this country's health service are used to best effect for the benefit of those for whom they are intended, those consequences do not weigh heavily in the claimant's favour but speak cogently in support of the public interests in removal.
In GS and EO the UT acknowledged that there were recognised departures from "the high threshold approach" in cases concerning children, and that Article 8 cases might require a different approach and would do so where health questions arose in the context of obstacles to relocation. Nonetheless the burden to the taxpayer of the children being educated at specialist schools is only acknowledged by the judge at the end of paragraph 88, after she has already decided that the public interest referred to in s117B(1) is outweighed.
Ground 2
38. Central to the judge's reasoning as to why the welfare of the children was imperilled by going to Nigeria with their parents is the finding that there is a real risk of DOU and DGU being subjected to some form of ritual exorcism. This arose from her acceptance of the claimant's oral evidence that the majority of the population believe in indigenous systems of belief such as voodoo.
39. It does not appear that these claims had been made previously, and so the Home Office was deprived of an opportunity to address them. Moreover, the judge did not take into account the viability of internal relocation. The father-in-law lived in Benin, which is about twelve hours' drive from Lagos. There was no evidence before the judge that the father-in-law could influence what would happen to the family in Lagos. There was also no objective evidence that the children would suffer societal stigma or discrimination in Lagos on account of their respective conditions. The judge went on at paragraph 47 to find that the claimant was a very resourceful person, who had managed to maintain and accommodate his family in the UK without recourse to public funds. Therefore there was no reason to suppose that the family could not lead an independent life in Lagos without the support of family members in Benin.
40. The judge has not given adequate reasons for finding that DOU and DGU might be subjected to some form of ritual exorcism by extended family members, or for her implicit finding that they would suffer significant societal discrimination wherever the parents chose to live in Nigeria. Accordingly, ground 2 is also made out.
41. For the above reasons, I find that the decision of Judge Haria is unsafe and must be set aside.
Appropriate Forum for Remaking
42. On the issue of remaking, the burden rests with the claimant to show that there are very significant obstacles to his children's integration into life in Nigeria, as highlighted by Judge Baker when granting permission to appeal. There is currently a lack of objective evidence to support some of the claims made by the claimant in his oral evidence, such as an inability on the part of the children to access an educational system which is tailored to their respective special needs. In view of the extent of the judicial finding of fact which will be involved in remaking the decision, I consider that is an appropriate case for the appeal to be remitted to the First-tier Tribunal for a de novo hearing.
Notice of Decision

The decision of the First-tier contained an error of law, and accordingly the decision is set aside.

Directions

This appeal is remitted to the First-tier Tribunal at Hatton Cross for a de novo hearing before any judge apart from Judge Haria.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the claimant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the claimant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 14 June 2016

Deputy Upper Tribunal Judge Monson