Tribunal decisions

The decision

IAC-fH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/41372/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 February 2017
On 13 March 2017

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

tom peter iyare
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Uzoechina, Legal Representative instructed by Patterson & Co.
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellant’s appeal against a decision of First-tier Tribunal Judge Gillespie made following a hearing on 31 August 2016 at Hatton Cross. The decision and reasons dismissing the appellant’s appeal was promulgated on 12 September 2016. I will adopt much of what is said in that decision when setting out the immigration history but obviously this decision will concern itself with whether or not the decision is so tainted by an error of law that it should be set aside and re-made.
2. This appeal has had an unfortunate history because Judge Gillespie’s decision was in fact not the first one which had been made as a previous decision by First-tier Tribunal Judge Seifert had to be set aside for reasons which I will outline below.
3. The appellant is a Nigerian national who was born on 10 September 1993 who brought an appeal under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 against the respondent’s decision dated 25 September 2014 refusing to grant him further leave to remain in the United Kingdom and to remove him from this country.
4. The appellant had entered the United Kingdom in or about December 2006 with entry clearance as a visitor (presumably for six months) in the company of both his parents and two young siblings. His father returned to Nigeria but the rest of his family, that is his mother, his two siblings and he himself all overstayed and did not return when they should. His mother had apparently been pregnant at the time of entry and gave birth while in the United Kingdom during 2007 to a third younger sibling of the appellant. At some stage during this year therefore that child will be likely to fall in the category of persons who having been born in this country have remained here for ten years such that she might, unless the Rules change, become eligible to apply for British citizenship. However, that situation has not yet arisen.
5. On 25 September 2012 the appellant was named as a dependant in an application brought by his mother for the issue of a residence card as a family member of an EEA national but this application was refused on 26 February 2013. I was told during the course of this hearing that although an appeal was brought against this decision, ultimately the appeal was abandoned by the family and so although there is some suggestion that the marriage was subsisting and the mother might still be entitled to some rights under European law, that aspect of the case was not pursued by the appellant.
6. I am told that because the respondent was making investigations into issues relating to a student loan which had been applied for by the appellant he was written to requesting any information which he might wish to give pursuant to Section 120 of the Nationality, Immigration and Asylum Act 2002, whereby he was required to set out any basis relied upon under which he should be permitted to remain. He made his representations but having considered them in a decision dated 25 September 2014 as already noted, the application was refused by the respondent. The decision letter is contained within the papers.
7. Subsequently following the appellant’s appeal against this decision the appeal came before First-tier Tribunal Judge Seifert on 3 July 2015. In the course of the hearing before him Judge Seifert considered among other matters both a witness statement made on behalf of the appellant by his mother, Mrs Grace Iyare, and also a skeleton argument which had been prepared by Mr Uzoechina, a legal representative of Pattison and Co, who has represented the appellant and indeed all his family throughout these proceedings. The rest of the family had apparently made an application to be allowed to remain on grounds of which I have not been fully told for reasons which I will go into below but in Mrs Iyare’s statement which is dated 30 June 2015 she stated as follows at paragraph 2:
“I confirm that the rest of the family’s appeal against Home Office refusal of our application, like Tom’s was allowed.”
8. She enclosed a copy of the determination allowing that appeal within the papers and stated that this appellant had been included in the application but that his application had been separated from the rest of the family because he was an adult. In the skeleton argument prepared by Mr Uzoechina, at paragraph 6 he stated as follows:
“The appellant mother and siblings’ appeals were allowed in a decision promulgated on 27 January 2015 on the basis that the children are settled and have had strong ties with their religious, educational and social communities in the United Kingdom”.
9. Then later, towards the end of the skeleton argument at paragraph 13, under “Family life” at paragraph 13(a) it was stated as follows:
“Further, Appellant’s mother and siblings’ Appeals have been allowed, therefore, they are presumed settled in the United Kingdom.”
10. In fact, as Mr Uzoechina knew full well, as did the appellant and his mother, the statement that “they are presumed settled in the United Kingdom” was disingenuous to say the least, because the respondent had been given permission to appeal against this decision some three months previously in March 2015. When during the course of this hearing I asked Mr Uzoechina how he could possibly justify not informing the Tribunal of what the true position was he stated in terms that “I accept my oversight”. He also said to the Tribunal, when concern was expressed that the Tribunal (that is Judge Seifert) had been put in a false position “you are right – I regret this”. It should always be remembered by representatives acting for all parties that there is an obligation to ensure that the Tribunal is not put in a false position but understands accurately what the true facts are in a particular case. It is very regrettable indeed that this was not what happened on this occasion and it had been an unfortunate consequence that among the conclusions that Judge Seifert reached was that the appellant’s family had been granted indefinite leave to remain which was not in fact the true situation. He said in terms at paragraph 40 that, “the appeal of his mother and siblings against refusal of their applications was successful. They have leave to remain.”
11. Judge Seifert’s decision was set aside by the Upper Tribunal and no findings were preserved and it was on this basis that the appeal came before First-tier Tribunal Judge Gillespie, the appeal having been remitted back to the First-tier Tribunal.
12. In the course of his decision in which he made a number of adverse credibility findings regarding the appellant and his family the judge referred to some aspects of Judge Seifert’s decision, in particular to Judge Seifert having referred at paragraph 33 of his decision to the appellant’s mother’s evidence that the appellant’s father “has provided no financial support for [the appellant’s mother] and the children since 2010” which was not wholly consistent with the evidence which was given before him.
13. In the appellant’s original appeal there had been five grounds. The first was that the decision was not in accordance with the Immigration Rules. The second was that discretion under the Immigration Rules should have been exercised differently. The third was that the decision was otherwise not in accordance with the law and the fourth was that the decision was unlawful “because it racially discriminated against the appellant”. The fifth ground was that the decision breached the rights which the appellant had as an EEA national pursuant to community treaties because his mother was in a relationship with an EEA national.
14. The appellant now appeals with leave granted by a First-tier Tribunal Judge against Judge Gillespie’s decision dismissing his appeal. On behalf of the appellant Mr Uzoechina relied on the grounds and also on the oral submissions which he made during the course of the hearing.

Summary of Appellant’s Submissions
15. Mr Uzoechina submitted that the judge had first of all failed to consider at all the fourth ground which was that the decision was unlawful because it racially discriminated against him. This is a discrete ground which I will discuss below. He then says that when considering whether or not the appellant’s appeal should succeed under paragraph 276ADE(1) of the Rules the judge did not consider properly under Rule 276ADE(1)(vi) whether or not there were “very significant obstacles” to his integrating within Nigeria on return because his findings were affected by adverse credibility findings which were tainted by his consideration of factors to which he should not have had regard. In particular it is said that the judge when considering credibility had had regard to evidence which according to Judge Seifert in his decision (which had been set aside) had been given in that hearing. In his submissions, Mr Uzoechina relied upon a remark (albeit obiter) made at paragraph 29 of the starred decision of the predecessor of this Tribunal in Devaseelan v SSHD [2002] UKIAT 00702, where it was stated as follows:
“It is well-established that when an appeal is remitted for rehearing an Adjudicator should have no regard to any previous determination, and should not even look at it except with the consent of all parties.” [My emphasis].
The Tribunal in that case went on to state that, “that is because the previous determination has been set aside”.
16. In this case, Mr Uzoechina submits that there being no evidence or acceptance that the Tribunal had the consent of all parties to look at the previous determination (and indeed I was told that the appellant did not accept that the mother’s evidence had been as stated within that determination) it was an error of law for the judge to have regard to what had been contained within a decision which had been set aside.
17. The judge was also said to have been in error by making observations with regard to whether or not the mother’s asserted EEA rights were genuine or not especially as none of these matters had been canvassed during the hearing itself. Accordingly, it is said that insofar as the judge made adverse credibility findings these were not justified and were unfair because the parties had not been given a proper opportunity to make representations regarding the judge’s concerns before these findings were made.
18. The findings are said to be relevant because they led the judge to conclude on the balance of probabilities that on return to Nigeria the appellant would be likely to have the support of some family members within Nigeria whereas such a conclusion was simply not justified on the evidence. It is said that this was a factor which was relevant to a consideration as to whether or not there were as claimed “very significant obstacles” to the appellant reintegrating into Nigeria on return.
19. Even if the Tribunal were to find that there were not very significant obstacles to the appellant returning to Nigeria, a Tribunal would still have to consider whether or not there were compelling reasons why exceptionally the appellant might still be allowed to remain outside the Rules under Article 8. In this case the judge it is said did not have proper regard in particular to his mother’s evidence that she could not return to Nigeria because her daughters would be at real risk of being subjected to FGM (that is female genital mutilation).
20. I deal briefly with the position of the appellant’s family because their position has been sketched before me although I have not had the appellant’s consent to look at the most recent judgment of the Upper Tribunal with regard to them. Although their appeal had been allowed by the First-tier Tribunal, it appears that the respondent’s appeal had been successful and the decision has been remade by the Upper Tribunal which had dismissed the appeal. Permission to appeal to the Court of Appeal had been refused by both the Upper Tribunal and the Court of Appeal but apparently the appellant’s family has sought oral renewal of the permission to appeal application before the Court of Appeal which Mr Uzoechina has informed the Tribunal is to be heard in or about May of this year. Mr Tufan had available a copy of the Upper Tribunal decision in that case which certainly might be relevant were I to find an error of law in Judge Gillespie’s decision but unless and until that happened I indicated that I did not propose to read the decision of the Upper Tribunal unless the appellant through his representative consented to this course. Having considered the matter Mr Uzoechina did not so consent and so I did not look at this document. Accordingly the current position is that the appellant’s family’s appeal was unsuccessful and permission has so far been refused to appeal this decision in the Court of Appeal but that appeal is still just live and will remain so unless and until permission is refused again following the oral renewal.
21. Among the arguments advanced on behalf of the appellant was that when considering whether or not the appeal should succeed outside the Rules, at paragraph 18 Judge Gillespie had stated that
“My assessment of the matter is that there must need to be unusual circumstances of an exceptional nature attending the appellant’s personal interests to outweigh the interests of the public in maintenance and enforcement of immigration control”
which was not the correct test; it was clear from the authorities that in order to be “exceptional” the factors did not have to be either “unusual” or “unique”.

Discussion
22. I deal first of all with the ground that the decision should be set aside because the judge failed to consider the argument that the decision was unlawful because it racially discriminated against the appellant. In the first place, as I indicated to the parties during the course of the hearing, by the time of the decision under challenge, by Section 84(1) of the Nationality, Immigration and Asylum Act 2002 there was no longer a right to appeal on this ground. There had previously been a right to challenge a decision on the basis that it was in breach of the then Race Relations Act but following the passage of the Equality Act 2010 that position was changed and at the relevant time Section 84(1) of the 2002 Act provided as follows:
“(1) An appeal under Section 82(1) against an immigration decision must be brought on one or more of the following grounds -
(a) the decision is not in accordance with Immigration Rules;
(b) the decision is unlawful by virtue of Article 20A of the Race Relations (Northern Ireland) Order 1976 (discrimination by public authorities)...”.
23. In other words, outside Northern Ireland, certainly in England and Wales, this is no longer a ground of appeal which can be entertained by the Tribunal. Having considered this when it was pointed out to him Mr Uzoechina accepted that it appeared that that was correct and so he sought to restrict his observations on this ground to an argument that the decision was “prejudiced” in that the respondent appeared to have made their mind up before the decision was made.
24. In any event, as argued in the grounds of appeal which had been before the First-tier Tribunal and indeed generally this argument is completely hopeless. What is said at ground 4 was as follows:
“The decision is unlawful because it racially discriminated against the appellant.
The appellant has been in education since 12 years old and has not left UK throughout those periods, in doing so acquired Home Student status. However, in making decision, the Respondent at [27] & [34(ii)] prejudiced/discriminated against the appellant for being Home Student.”
25. In fact, at paragraph 27, what is said is that the appellant had been in breach of the Immigration Rules by enrolling on a course at university as a “home based” student rather than applying under Tier 4 as an “overseas student” which the respondent considered showed that it was “likely that [he] has not been honest in his dealing with the university in enrolling on his course”. At paragraph 34(ii) again it is said that he “has no right to enter into university education as he has no leave to do so”.
26. There does not appear to be anything in those statements that is incorrect. Clearly, the appellant was treated differently because he was not a UK citizen but that is the nature of immigration law; a person who is not a UK citizen does not have the same rights as someone who is. It is quite clear on the evidence that this appellant was not here lawfully. So far as his EEA argument is concerned, that issue was decided against him in 2013 and on ordinary Devaseelan principles, unless and until evidence capable of impugning that decision is put before a court there is no reason to depart from the findings in that case.
27. Before leaving this aspect of the case I noted during the course of the hearing that Mr Uzoechina persisted in submitting to the court (in his exact words) that the respondent had at paragraph 27 of the decision “accepted in the determination that he is not to be blamed for overstaying in the country”. This statement was made to this Tribunal without qualification. In fact, it is clear from the decision letter that the respondent was not saying any such thing. What the respondent stated was that although “it is accepted that remaining in the UK as a child was not the choice of your client”, nonetheless “your client is now an adult and as such is responsible for his own conduct and immigration status”. Then, at paragraph 34(ii) it is made clear in terms that “while it is acknowledged that your client cannot be held responsible for his conduct as a minor, since 10 September 2011 your client is considered responsible for his own actions, and has chosen to remain here illegally, showing no intention to return home by apparently embarking on a course of study in the UK” which, the respondent goes on to say, he “also has no right to enter into university education as he has no leave to do so”. In light of these statements within the decision letter the submission should not have been made by Mr Uzoechina in the terms in which it was.
28. I turn now to deal with the submission that the judge did not consider properly whether or not there were “very significant obstacles” to this appellant reintegrating into Nigeria if returned there and whether or not any error that might be said to have been made by the judge in this regard could be said to be material.
29. I do not propose to make a specific finding as to whether or not the judge should have had regard to what had been set out within Judge Seifert’s decision dealing with the evidence which had been given as to when the appellant’s father had stopped supporting the family because, in my judgment, I do not need to do so. It is quite clear from the judgment itself that there were a number of other inconsistencies to which the judge has had regard and which on their own would have entitled him to make the adverse credibility findings he did. Moreover, even if the judge should not have considered that on the balance of probabilities this appellant would on return have financial support within Nigeria or any family support there, even on that basis, there is in my judgment absolutely no prospect of this appellant persuading any judge that there would be “very significant obstacles” to his reintegrating within Nigeria. On any view, he is a fit, able-bodied, intelligent and educated person who speaks English (even if he does not have any other languages) which is a language widely spoken within Nigeria. However much he may prefer to remain in the UK (which may or may not be a matter that has to be considered under the second limb of consideration of Article 8, which is whether his removal is proportionate) it cannot be said that there are very significant obstacles to his reintegrating into Nigeria. I was referred among other decisions to the relatively recent decision of this Tribunal in Bossade (ss.117A-D – interrelationship with Rules) [2015] UKUT 415, and in particular to paragraphs 56 and 57. Although this was a deportation decision, nonetheless the Tribunal gave specific consideration to what was meant by the words “very significant obstacles to ... integration” and stated in terms that that was a “demanding standard”. In that particular case the claimant did not face any greater difficulties than the appellant does in this case. Indeed he did not speak Lingala, which was the common language in the DRC and had not even lived in the DRC as a young person (to be contrasted with this appellant who had not left Nigeria until he was about 13). The claimant in Bossade had therefore more obstacles to overcome on return, but was still unable to succeed on this ground.
30. It is argued implicitly in this case that there is a subjective element that must be considered by the Tribunal when considering what amounts to very significant obstacles and that a Tribunal would have to take into account the nature of what the appellant is doing in this country now, which is that he is a student, which he would not be on return. However, in my judgment, the words “very significant obstacles” refer to the difficulties which an applicant would face on return and not to whether they are greater or less than those faced in this country, and the appellant in this case even taking it at its highest, misses this threshold by a very wide margin indeed.
31. Accordingly, I have to turn to the issue of whether or not there was any material error in the judge’s consideration of whether or not there were compelling reasons why even though the appellant could not succeed under the Rules (that is under paragraph 276ADE(1)) he should nonetheless be granted permission to remain outside the Rules. I accept that the words actually used at paragraph 18 was that “there must need to be unusual circumstances of an exceptional nature attending the appellant’s personal interest to outweigh the interest of the public in maintenance and enforcement of immigration control” are unfortunate because the compelling reasons which have to be established do not necessarily have to be “unusual” or “unique” in themselves, but again, this is in my judgment a matter of semantics and not of substance. Even if the judge should not have taken against the appellant as a factor the behaviour of his parents in avoiding or seeking to avoid their obligations to leave the country under the Immigration Rules, nonetheless the fact is that he is in this country without leave and has been in this country without leave as an adult for some considerable period of time. Although he has managed (albeit not wholly successfully) to obtain part of a university education in this country, he has done so at least in part as a home student, whereas as a matter of fact he is not entitled to home student status, and the respondent was unarguably right in so concluding. As already indicated he would be returning to a country where there would not be very significant obstacles to his reintegration and the highest his case is put before me (in reliance upon paragraphs 4 and 5 of his mother’s witness statement) is that because his family cannot return (essentially because his sister would be subjected to FGM), there would therefore be an unacceptable interference with the Article 8 rights of the entire family.
32. In my judgment there is nothing remotely exceptional or compelling about an older brother in his 20s who has no leave to be in this country being required to leave in circumstances where younger siblings who are still members of a unified family may not be required to leave. It is argued on the appellant’s behalf that he is still living with his family within the one family unit but in fact although the appellant may well return to his family home during holidays, for most of the year he is living in accommodation in Portsmouth where he is attending university (albeit possibly without leave to do so). In the normal course of events family life does not go on forever. There comes a time in most, if not all families (albeit not necessarily immediately somebody becomes an adult) where an older child can no longer be said to enjoy a “family life” with parents and siblings. There is certainly nothing which could be said to be “exceptional” in this appellant’s circumstances (and nor in my judgment especially compelling) which should justify this appellant being treated differently from how other claimants in his position are invariably treated. It is important and in the public interest that there is consistency in immigration decisions which is why it is only where the circumstances are so compelling as to justify exception to the Rules that an application under Article 8 which cannot succeed under the Rules will succeed outside the Rules.
33. It follows that because there is no arguable basis upon which this appellant’s appeal could possibly succeed there was no material error in Judge Gillespie’s decision even taking the appellant’s case at its highest. It follows that this appeal must be dismissed and I so find.

Notice of Decision
There being no material error of law in Judge Gillespie’s decision, the appellant’s appeal is dismissed.

No anonymity direction is made.

Signed:

Upper Tribunal Judge Craig Date: 9 March 2017