Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/40562/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th January 2017
On 26th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

Secretary of State for the Home Department
Appellant
and

mrs evelyn emmanuel daniels
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr S Kotas, Home Office Presenting Officer
For the Respondent: The Appellant in person

DECISION AND REASONS

1. Although this is an appeal by the Secretary of State I refer to the parties as they were in the First-tier Tribunal.
2. The Appellant, Mrs Evelyn Emmanuel Daniels, a national of Nigeria, appealed to the First-tier Tribunal against a decision of Secretary of State dated 22nd September 2014 to refuse her application for leave to remain in the UK. Her daughter was born on 4th November 2007, is her dependant in this appeal as are her two sons, twins, born in the UK on 11th June 2009. First-tier Tribunal Judge Nicholls allowed the Appellant's appeal and the Secretary of State now appeals with permission to this Tribunal.
3. The background to this appeal is that the Appellant and her eldest child entered the UK on 12th June 2008 with her husband who had entry clearance as a highly skilled Migrant. Her husband applied for further leave to remain in January 2010 and she applied as his partner and their child as the child of a Tier 1 Migrant. Those applications were refused in March 2010 and the appeals against that refusal dismissed. The Appellant did not leave the UK and her husband made a further application to regularise his status on 28th September 2012 with the Appellant and their daughter as his dependants. That application was refused on 20th September 2013.
4. The Appellant and her husband were served with One-Stop Notices on 12th February 2014 and a response was made on the part of the Appellant and her husband on 8th April 2014 raising issues under Articles 3 and 8 of the ECHR. Those applications were refused on 22nd September 2014 on the basis that the Respondent considered that the refusal of the applications would not place the UK in breach of its obligations under the Human Rights Act 1998.
5. By the time the matter came before First-tier Tribunal Judge Nicholls in June 2016 the Appellant and her husband had separated and it was the Appellant's case that he had disappeared and that the Appellant was the sole parent of her three children.
6. The judge heard oral evidence from the Appellant who represented herself at the hearing. The judge noted that the Appellant indicated that she accepted that there was no specific category under the Immigration Rules under which she could qualify for leave to remain in the UK. The judge considered a number of factors including the fact that the children had by then been resident in the UK for more than seven years, the fact that the Appellant has been diagnosed as HIV positive, the best interests of the children, the requirements of EX.1, the situation for the family in Nigeria, and the family's the circumstances in the UK. The judge considered the provisions of section 117B of the Nationality, Immigration and Asylum Act 2002. The judge concluded that the compelling and exceptional circumstances in the case are sufficient to outweigh the public interest and that the removal of the Appellant from the UK would not be in the best interests of the children and would be in breach of Article 8 [31].
7. In the Grounds of Appeal the Secretary of State contends that the judge made a material misdirection in law in that the assessment of the best interests of the children is based purely on their length of residence in the UK and does not take account of other material factors, for example the children's Nigerian nationality, their lack of status in the UK, the fact that their removal would be with their mother, that they have no reported health problems and that any security they currently have in the UK is purely as a result of welfare support. It contended that it follows from this that the assessment of reasonableness as set out in paragraph 29 of the judge's decision is arguably wrong and that the decision is unsustainable. The grounds point out that the children are Nigerian nationals, having been brought up in Nigerian culture, their ties to the UK are restricted to the length of their residence and it is arguable that it would be reasonable to return the children to the country of origin with their mother. It is submitted that the proportionality assessment in paragraphs 30 and 31 of the decision is unbalanced and that the Tribunal has failed to have regard to MA (Pakistan) & Others v Upper Tribunal (IAC) & SSHD [2016] EWCA Civ 705 which requires consideration of the wider aspects of the case such as the Appellant's immigration history, the family's financial independence or reliance on state aid and, had these aspects been considered, the conclusions may well have been very difference.
8. At the hearing before me Mr Kotas submitted that the reasonableness assessment is one-sided, he submitted that the judge has largely ignored the Appellant's lack of status since 2011 although he accepts that the judge notes that the Appellant did not enter illegally [25]. He submitted that at paragraph 27 the judge notes that the two younger children are 7 years old at the date of the hearing and it is unclear why the judge makes a finding that they have had two years of education and attaches significant weight to this factor. He submitted that the children are still in primary school and that the judge has not adequately developed his conclusions that the educational point is significant. He submitted that the judge noted that the Presenting Officer submitted that there is a functioning education system in Nigeria but the judge puts that issue to one side. He submitted that, if there is no impediment to re-adjusting to life in Nigeria, it is not clear why the judge has not taken that into account in his assessment of reasonableness. He submitted that the factors set out in paragraph 30 were factors that were not in the Appellant's favour. He said that the Appellant has been wholly reliant on public support as set out in paragraph 15 of the decision but the judge counted in the Appellant's favour her ability to be financially independent, however he submitted that this is not the test and is in fact a factor which should weigh against the Appellant. He accepted that there was no factual challenge to any of the issues considered by the judge but submitted that the reasonableness assessment had been inadequate.
9. I have considered the assessment of the judge from paragraphs 19 to 31. It is clear to me that the judge has assessed all relevant factors in this case including the best interests of the children including their education, their life outside the family, their involvement with the Church and the fact that their father has disappeared and their mother is the sole parent. The judge also considered the length of residence of the children; the Appellant's medical condition; the circumstances in Nigeria including the fact that there are no remaining close family there; the Appellant's criminal conviction; and the fact that there was no illegality in the Appellant's entry to the UK.
10. The judge did consider the fact that the Appellant has not left the UK since she was refused further leave to remain and the ending of her appeal rights [25] and the fact that the Appellant did not have leave to remain. Therefore the judge did take into account the Appellant's unlawful stay in the UK. The judge took into account the fact that the Appellant had never acted dishonestly.
11. In considering the best interests of the children the judge took into account their education, the fact that the elder daughter is 9 and has undertaken all of her education in the UK. Whilst taking into account the fact that there is a functioning education system in Nigeria, the judge concluded that there would inevitably be disruption to the children's education as well as to the lives they had known in the UK [27]. The judge took into account the fact that the best interests of the children are to remain with their mother, in a stable household, and took into account the fact that the children have now gained so much needed stability in their lives [28].
12. The judge took into account the fact that the Appellant has qualified as a nurse and if she is permitted to work she has a lot to contribute to the UK. The judge attached particular weight to this factor. I acknowledge that the judge may not have properly applied Section 117B in terms of the financial independence. However the judge did take into account the fact that the Appellant has the ability to work as a nurse and counted that in her favour, he was entitled to do so. In any event having concluded that Section 117B(6) applies the provision about financial independence has much less, if any, weight (Treebhawon and others (section 117B(6)) [2015] UKUT 00674 (IAC)) .
13. Therefore looking at the decision as a whole I am satisfied that the judge reached a conclusion open to him on the basis of the evidence before him considering all relevant factors and that there is no material error in the judge's decision.
Notice of Decision
14. There is no material error of law in the judge's decision and the decision of the First-tier Tribunal shall therefore stand.
15. No anonymity direction is made.

Signed Date: 25 January 2017

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

I maintain the fee award made by the First-tier Tribunal.

Signed Date: 25 January 2017

Deputy Upper Tribunal Judge Grimes