Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/39651/2014
IA/49149/2014
IA/49155/2014
IA/49162/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 September 2016
On 20 September 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

ABIODUN [F]
ADEOLA [F]
[E F]
[J F]
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Adewoye, Prime Solicitors
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS
1. The appellants appeal with permission against the decision of First-tier Tribunal Judge S Taylor promulgated on 10 March 2016 in which he dismissed their appeals against the decisions of the Secretary of State to refuse them leave to enter the United Kingdom and to remove them from the United Kingdom.
2. The first and second appellants are citizens of Nigeria and are married. The third and fourth appellants are their children. The younger child was born in the United Kingdom. All are citizens of Nigeria. The history of the family and the fact they have overstayed here and have never had leave to remain here other than an initial visit visa in the case of the first of the appellants, is set out adequately in the decision of the First-tier Tribunal.
3. Their applications for leave to remain were made prior to the change in the Immigration Rules of July 2012. Nonetheless, the Secretary of State took a decision pursuant to what the "new" Rules, concluding that the appellants did not meet the requirements of Appendix FM or paragraph 276ADE of the Immigration Rules. It was not contended before the First-tier Tribunal that the requirements of the Immigration Rules were met, rather it was submitted that on the particular facts of this case that it would be in breach of the United Kingdom's obligations pursuant to Article 8 to remove the appellants from the United Kingdom.
4. In his decision the judge noted the immigration history of the appellants and considered in some detail their immigration history. He also considered the position of the third and fourth appellants noting in particular that they have been educated in the United Kingdom. He was also clearly aware that they had been as at the date of hearing (but not at the date of application) present in the United Kingdom for seven years. He noted also the submissions made on their behalf in particular the reports which had been prepared by social workers in support of the application that they should not be returned to Nigeria.
5. The judge found that whilst the best interests of the children are a primary consideration it was not the only consideration, and that these interests should be taken into account with other factors, He considered that the adult appellants' poor immigration record was particularly relevant and concluded, viewing the facts as a whole that the maintenance of immigration control was in the public interest and was not on the facts of this case outweighed, the judge considering that it would be reasonable to expect the children to leave the United Kingdom.
6. The appellants sought permission to appeal against that decision on the grounds primarily that the judge had failed properly to conduct an enquiry into the best interests of the children, failing properly to go into the factors and material as identified in EV (Philippines). Second, that there was insufficient attention paid to the fact that the children had been present for seven years in the United Kingdom. Third, that the judge focused improperly on the circumstances of the parents rather than the children.
7. Permission to appeal was granted by First-tier Tribunal Judge Colyer who concluded having set out and summarised the grounds that the judge misdirected himself as averred.
8. I observe at this point that since leave was granted, the Court of Appeal has handed down MA (Pakistan) [2016] EWCA Civ 705 which is a case which I must take into account although of course it post-dates the decision of the First-tier Tribunal.
9. Mr Adowoye for the appellants stressed that the judge in this case had erred in that he had failed to attach significant weight to the fact that the children had been present in the United Kingdom for seven years and that in this context and also in light of the position in EV (Philippines) [2014] EWCA Civ 874 the analysis of the children's best interests was flawed in that it was to a significant degree infected by improper considerations as to the children's parents' immigration history.
10. Mr Melvin submitted that the decision was sustainable relying primarily on the Rule 24 notice. He submitted further that although MA (Pakistan) did post-date it the judge had not erred in his approach to the best interests of the children and it was sufficiently clear that the judge had had proper regard to the fact that the children had been here for seven years and had properly had regard to that factor, the conclusion that it was reasonable for them to return to Nigeria being clearly open to him. He submitted further that the judge had not erred in his application of EV (Philippines) and that the judge had been entitled to consider all the factors in reaching his conclusion as to the interests of children.
11. I am satisfied that the decision of the First-tier Tribunal did involve the making of an error of law for the reasons which I now set out in brief.
12. Primarily, the judge appears to have fallen into error in not attaching the significant weight which is due to the fact that the children have been present in the United Kingdom for seven years. That is dealt with in several passages in MA (Pakistan) particularly at paragraphs [46] and [47] and also in the conclusions at paragraph [103].
13. It follows that the fact that a child has spent seven years in the United Kingdom is an important factor in determining his or her best interests. I consider that in this case in addition to the failure properly to give significant weight to that as the Court of Appeal in MA indicates must be given to the seven years that the children have lived here. Equally the analysis of their best interests must take that into account as a starting point which, the judge did not appear to do in his analysis of their best interests.
14. Equally, it can be argued that the analysis in EV (Philippines) needs to be read through the lens of the fact, firstly that that was not a seven years' residence case, and secondly, the observations made by the Court of Appeal in MA (Pakistan) in relation to EV (Philippines). Bearing in mind the factors that would need to be taken into account and to which significant weight would need to be awarded, that is the seven year's residence, the judge's decision is defective.
15. Taking these factors together I do not consider that that the decision of the First-tier Tribunal is adequately reasoned or sustainable and I therefore set it aside. The question then arises as to whether this is remade in the Upper Tribunal whether it s remitted to the First-tier Tribunal for it to make a fresh decision.
16. The difficulty I foresee in remaking the decision in the Upper Tribunal is that it would now appear that an application has been made for the younger child who was born in the United Kingdom to be registered in the United Kingdom as a British citizen given that she has now lived here for ten years continuously. Were that to be established then that would be a significant factor which would need to taken into account. It would also presumably in effect make the position different if a fresh application for leave to remain were made.
17. Having heard submissions from both representatives, I am satisfied that the proper course of action would be to remit the appeal to the First-tier Tribunal. Consideration also needs to be given to an application under the Immigration (European Economic Area) Regulations 2006 for confirmation of the derived right of residence under reg. 15A in respect of the appellants, if and when the fourth appellant is registered as a British Citizen.

Summary of conclusions

1. The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
2. I remit the decision to the First-tier Tribunal for a fresh decision to be made on all issues. None of the findings of fact are preserved.

Signed Date 19 September 2016

Upper Tribunal Judge Rintoul