Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA366192014
IA366072014
IA366142014

THE IMMIGRATION ACTS

Heard at Field House
Decision sent to parties on
On 12 April 2016
On 16 June 2016

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

ATINUKE ADEYEMI ODIASE
(no anonymity order made)
Respondent

SUSANNA ODIASE
KOLADE ADEYEMI ODIASE
(no anonymity order made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Claimants: Mr S Kandola, Senior Home Office Presenting Officer
For the Secretary of State: Mr P J Ward, Solicitor, James & Co Solicitors

DECISION AND REASONS
Anonymity
The First-tier Tribunal did not make an order pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and there has been no application for an anonymity order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. I make no anonymity order because I do not consider that one is necessary.
1. The Secretary of State has permission to appeal against the decision of the First-tier Tribunal allowing the appeal of Atinuke Odiase, the third appellant in the First-tier Tribunal. In the cross-appeal, Susanna Odiase and Kolade Odiase, the first and second appellants below, have permission to appeal against the decision of the First-tier Tribunal dismissing their appeals.
2. The claimants are all Nigerian citizens who appealed against the decision of the Secretary of State to refuse them leave to remain on human rights grounds, either within or outwith the Article 8 provisions of the Immigration Rules HC395 (as amended).
Background
3. Susanna Odiase is the mother of the second and third claimants and is 49 years old. Her daughter Atinuke Odiase was born on 29 June 1998 and is 17 years old. She will be 18 on 29 June 2016, that is to say, two weeks from today. Her son Kolade Odiase was born on 18 March 1995 and is 21 years old. I will refer to the parties as the Secretary of State and the appellants below as the claimants, and individually, the mother, the son and the daughter. The mother claims to be estranged from her husband.
4. All of the claimants entered the United Kingdom on 1 April 2005 as visitors. They have not had valid leave to enter or remain since October 2005, in the case of the son and the daughter, and (perhaps) January 2009 in the case of the mother. It seems that the mother departed from the United Kingdom and returned from Nigeria in 2008/2009 but nothing turns on that, since it is clear that thereafter all the claimants were in the United Kingdom without leave.
5. The claimants made an Article 8 ECHR application in December 2012, which, after a judicial review and consent order, was the subject of a refusal decision of 14 September 2014 giving an in-country right of appeal.
First-tier Tribunal decision
6. At the hearing before the First-tier Tribunal on 8 September 2015, the Home Office Presenting Officer (Mr Williams) conceded that the daughter, who was a minor, met the requirements of paragraph 276ADE (v) fully as she was over 18 and under 25, and had spent more than 10 years of her life in the United Kingdom. He conceded that the daughter's appeal fell to be allowed.
7. In relation to the mother and the son, the First-tier Tribunal Judge found that they could not bring themselves within the provisions of the Rules. The mother was not a credible witness, having lied to immigration officers in Nigeria, on her own admission. The Judge did not believe that the family had been supported for 10 years in the United Kingdom only by family and their Church: he considered it likely that the mother had been working illegally.
8. He considered that the mother had 'deliberately deceived the immigration authorities and deliberately flouted the immigration regulations in order to achieve her purpose of coming to settle in the United Kingdom'. He was not satisfied that there were 'very significant obstacles to her integration into Nigeria' for the reasons set out at paragraph 22 of his decision. There would be no disrespect for the family life of the mother and the son if they were removed together, and as regards the son, he did not consider it unreasonable for him to return to Nigeria and complete his education there. The daughter, who is now an adult, could choose whether to return with them or remain in the United Kingdom, her appeal having been allowed.
9. The Judge considered Article 8 outside the Rules, together with Part 5A of the Nationality, Immigration and Asylum Act 2002 (as amended). He dismissed the appeals of the mother and son, but allowed the appeal of the daughter, following the concession by the Secretary of State.
Secretary of State's appeal
10. The Secretary of State appealed against the decision to allow the daughter's appeal. Permission was granted on the basis that the Home Office Presenting Officer, when conceding the appeal, had erroneously calculated the length of time the daughter spent in the United Kingdom up to the date of hearing, rather than the date of application, and that the First-tier Tribunal had fallen into error in relying on the concession by the Home Office Presenting Officer that the daughter's appeal should be allowed.
11. The daughter, by her solicitors, filed a rule 24 reply to the grant of permission, arguing that there had been no error in considering the length of her residence up to the date of hearing, rather than to the date of application and that the First-tier Tribunal's decision should stand.
The cross-appeals
12. The mother and son cross-appealed against the decision to dismiss their appeals. They did so on two bases: first, that there was no evidence on which the First-tier Tribunal's findings of fact and credibility could be based; and second, on the basis that the son was also a minor and there had been no consideration of his section 55 best interests. I granted permission to appeal on the cross-appeal at the hearing, it having been overlooked by the Judge who considered the Secretary of State's appeal.
Directions
13. At a hearing on 12 April 2016, I set out the basis of the Secretary of State's appeal and the cross-appeal, on both of which permission to appeal was granted. I adjourned the material error of law hearing, to allow the Secretary of State an opportunity, if so advised, to respond either to the rule 24 Reply in the Secretary of State appeal, and/or by way of a Rule 24 Reply to the grant of permission in the cross-appeals.
14. Directions were given at the hearing and sent to the parties on 15 April 2016, as follows:
"Directions
(1) In the Secretary of State's appeal, the Secretary of State may file a Response to the third claimant's Rule 24 Reply not later than 14 days after the sending to the parties of this decision, to include any submissions about whether a further oral hearing is required on her appeal.
(2) In the cross-appeals, the Secretary of State may file a Rule 24 Reply not later than 14 days after the sending to the parties of this decision, to include any submissions about whether a further oral hearing is required on the cross-appeals.
(3) The first and second claimants may file a response to any such Reply not later than 14 days thereafter, to include their submissions as to whether a further oral hearing is required on the cross-appeals, or on the Secretary of State's appeal.
(4) If any party does not file a Response or Reply under (1) to (3) above, the Upper Tribunal may consider that such party has nothing, or nothing further, to add to the submissions already made, and may proceed to dispose of the appeal or cross-appeal (as applicable) without a further oral hearing."
15. The Secretary of State did not take the opportunity to respond under directions (1) and (2), and direction (3) was therefore not triggered.
16. I approach these appeals on the basis that the Secretary of State has nothing, or nothing further, to add to her pleaded case as it stood on 12 April 2016.
Material error of law
Secretary of State's appeal
17. As regards the Secretary of State's challenge to the First-tier Tribunal decision based on a concession by the Home Office Presenting Officer that the daughter had been in the United Kingdom for more than 10 years, and could therefore meet the requirements of the Rules, whether or not that was based on an erroneous understanding of the Rules as now alleged (and I note that there is no statement of truth from the Home Office Presenting Officer to that effect), that concession was a practical and pragmatic one. The daughter could have made a successful application the day after the hearing. I am not prepared to find that the First-tier Tribunal erred in giving weight to the concession made by the Home Office Presenting Officer and I dismiss the Secretary of State's appeal.
18. The First-tier Tribunal Judge's failure to go on and consider whether it was reasonable for the daughter to return to Nigeria arises directly from that concession: it simply was not necessary, since the Secretary of State had conceded that the appeal should be allowed.
19. I therefore find that there is no material error of law in the First-tier Tribunal decision concerning the decision on the daughter, and the Secretary of State's appeal is dismissed.
Cross-appeals
20. As regards the cross-appeals, the reasons challenge is without merit. The mother gave false information on a visa application in 2007, on her own admission (see paragraph 10 of the decision) and there were significant internal inconsistencies in her account on which the First-tier Tribunal Judge was entitled to place weight. He had heard and seen all the witnesses give their evidence and there is no proper reason to go behind his findings of fact and credibility.
21. As regards the assertion that the son is a minor, that is correct, but the Judge had regard to his age. The Judge did not fix the son with the mother's deception; he did have regard to the fact that this child had spent more than half his life in the United Kingdom, but he also took into account the decision of the Court of Appeal in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874.
22. The son is not a British citizen: he is Nigerian and he is, now, almost an adult. The high point of the son's argument was that he should be allowed to complete his secondary school education in the United Kingdom, which the Judge rejected.
23. The argument as to his best interests was based on the son's desire, and that of his mother, for him to complete his free state education in the United Kingdom. Nothing else of substance was advanced. He will by now have completed his education, or almost: in the time since the First-tier Tribunal decision was made in September 2015 and the date of my consideration of the son's appeal today, that has been achieved, as almost all of the final academic year has passed. I have regard to the observations of Lord Justice Christopher Clarke at paragraphs 60-61 in EV (Philippines), cited by the First-tier Tribunal at paragraph 26 of this decision:
"58. 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? ?
60. That is a long way from the facts of our case. 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."
24. Such is also the case here. While as a result of the First-tier Tribunal decision, the adult daughter now has leave to remain, none of these parties had any right to be in the United Kingdom at the date of hearing. The son was still a minor and it was not unreasonable to expect him to return to Nigeria with his mother.
25. I therefore find that no material error of law has been made out on the cross-appeals, which are also dismissed.

DECISION
26. For the foregoing reasons, my decision is as follows:
The making of the previous decision involved the making of no error on a point of law.
I do not set aside the decision but order that it shall stand.
Signed: Judith A J C Gleeson Date: 15 June 2016
Upper Tribunal Judge Gleeson