Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/41448/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 January 2016
On 20 January 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

mr Henry Olushola Johnson
(ANONYMITY order not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr B Lams, (Counsel) instructed by the appellant's solicitor's Legal Resource Partnership
For the Respondent: Ms Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Nigeria. He appeals against a decision made by the First-tier Tribunal (Judge Stokes) (FtT) heard on 27 March 2015 and in a decision and reasons promulgated on 24 June 2015 dismissed the appeal on immigration and human rights grounds.

Background

2. The appellant entered the UK on 11 June 2006 on a multi entry visit visa valid for six months. On 2 June 2010 he applied for leave to remain under Article 8 ECHR which was refused on 1 July 2010 with no right of appeal. On 11 April 2012 he requested a reconsideration which was refused and an appealable decision was made to remove him from the UK under Section 10 of the Immigration and Asylum Act 1999. The respondent refused the application with reference to Appendix FM and paragraph 276ADE. The respondent was not satisfied that the appellant was in a genuine and subsisting relationship with his former partner who was the mother of his two children born on 4 March 2007 and 17 December 2009. Further the respondent concluded that the appellant was unable to meet the requirements as a parent as he did not have sole responsibility for his children who were living with his former partner, and both she and the children were Nigerian nationals with no valid leave in the UK. Paragraph EX.1.(a) or (b) did not apply.

3. On 27 March 2015 at the hearing it was known to the FtT that the appellant's former partner and the two children had made separate applications for leave to remain and the decisions were outstanding. Neither the appellant's former partner nor his children attended to give evidence at the hearing.

4. For the sake of completeness, I set out the procedural events up to the time of the hearing before me. On 1st June 2015 the appeal of the appellant's former partner and children was heard and dismissed on immigration and human rights grounds by the First-tier Tribunal (Judge E Ruth) in a decision and reasons promulgated on 11 June 2015. An application for permission to appeal was refused by Upper Tribunal Judge Reeds on 12 October 2015. The parties were appeal rights exhausted.

Summary of First-tier Tribunal (Judge Stokes) Decision

5. The FtT proceeded on the basis that the appellant was unable to meet the requirements for leave under the partner route and/or under paragraph EX.1.(b). The FtT further found that he could not meet the Eligibility requirements for limited leave as a parent. As an overstayer he was in breach of Immigration Rules. The FtT found that the appellant's eldest son, M, had not lived in the UK for seven years preceding the date of application. However as at the date of hearing he met the definition as a "qualifying child" for the purposes of Section 117 of the Nationality Immigration & Asylum 2002 Act (as amended) ("2002 Act"). The FtT considered Article 8 outside of the Rules and factors relevant to the public interest [20]. At [21] the FtT specifically considered Section 117B(6) 2002 Act on the basis that M was a qualifying child, and which was not disputed, that the appellant had a genuine and subsisting parental relationship with his children. The FtT considered the second limb of Section 117B(6) as regards whether or not it would be reasonable for the child to return with the appellant to Nigeria. In so assessing the FtT considered the statutory guidance "UKBA Every Child Matters: Change for Children" November 2009, ZH Tanzania, Zoumbas v SSHD [2013] UKSC 74, EV Philippines and Others v SSHD [2014] EWCA Civ 874 and principles in Azimi-Moayed and Others (Decisions Affecting Children; Onward Appeals) [2013] UKUT 197 IAC. The FtT found that both children were settled in primary school, their mother was their primary carer with whom they lived since their birth, they had never visited Nigeria and had a strong relationship with their paternal grandmother and other immediate family who they visited regularly in the UK. The FtT found inconsistencies in the evidence as to how much time the appellant spent with his children. He had not lived with them for the majority of their childhood. The FtT concluded at [25]:

"That it would not be in the children's best interests or reasonable to expect them to return to Nigeria with the appellant. Their family and private life here is well-established and they would be separated from their mother, primary carer. Their welfare is best served, therefore by remaining with her in the UK."

6. The FtT considered Article 8 with reference to the appellant's relationship with his adult half sibling Adebayo, for whom he had a caring role. The FtT found that there was no family life as between them as adults following Kugathas v SSHD [2003] EWCA Civ 31 [27] - [29].

7. At [30] the FtT took into account that the appellant lived unlawfully in the UK for eight years and had not met the Immigration Rules with regard to family or private life. He produced no evidence why he should not be able to return to Nigeria where he lived prior to entry to the UK and where he had at least one family member. The FtT placed significant weight on the public interest in the maintenance of effective immigration controls. It concluded that any interference in his relationship with his half sibling Adebayo was proportionate. In considering Section 117 with respect to M, the qualifying child, the FtT took into account Dube (ss.117A - 117D) [2015] UKUT 00090 (IAC) [32] and concluded that the interference was not disproportionate. The FtT concluded that Article 8 was not engaged, notwithstanding that M was a qualified child and the FtT found that it was unreasonable to expect the children to return to Nigeria with the appellant.

Grounds of Application for Permission

8. The appellant argued that the FtT erred by failing to properly apply Section 117B(6) of the 2002 Act arguing that there was no public interest in removal where there was a genuine and subsisting relationship with a qualifying child in respect of whom it was found to be unreasonable for the child to leave the UK with the appellant. It was submitted that having so found the FtT was obliged to have regard to the statutory provisions and to allow the appeal.

Permission to Appeal

9. Permission to appeal was granted by First-tier Tribunal Judge McDade on 9th October 2015 who found that there appeared to be an absence of consideration of Section 117B and therefore an arguable error of law.

Rule 24 Response

10. Rule 24(4) Tribunal Procedure (Upper Tribunal) Rules 2008 permits for extensions of time:

"If the respondent provides the response to the Upper Tribunal later than the time required by paragraph (2) or by an extension of time allowed under Rule 5(3)(a) (power to extend time), the response must include a request for an extension of time and the reason why the response was not provided in time."

11. At the hearing before me Ms Brocklesby-Weller sought to admit a Rule 24 response dated 5 January 2016. The respondent had not received either the grounds of appeal or the decision permitting the application within the prescribed time limits. She had made urgent enquiries to obtain copies of the same and was in a position to prepare the response on the evening of 4 January 2016. Mr Lams opposed the application arguing that the appellant would be prejudiced because firstly the response opposed the appeal on the Section 117B(6) issue, but also and more significantly it amounted to a cross-appeal on behalf of the respondent. The respondent pursued grounds that the FtT erred in concluding that it would be unreasonable for the appellant's children to return to Nigeria following the principle in EG and NG (UT rule 17: withdrawal; rule 24: scope) Ethiopia [2013] UKUT 00143. Further the respondent argued that the reasonableness of relocation had been determined by FtT (Judge Ruth) whose decision had been upheld by Upper Tribunal Judge Reeds and the appeals were rights exhausted as at 23 October 2015.

Decision re Rule 24 response

12. I decided to admit the Rule 24 response. I was satisfied that the respondent had prepared the response at the earliest opportunity available to her. I did not consider that the appellant would be at all prejudiced as to the main ground of appeal in relation to Section 117B(6).

13. As to the cross-appeal I allowed time for Mr Lams to fully address this issue before me. Indeed at the end of the hearing I asked whether or not he wished to have a further opportunity in which to provide written arguments in respect of the Secretary of State's cross-appeal. He confirmed that he did not. Mr Lams raised concerns that there were two sets of appeal proceedings in respect of one family which had not been linked and that neither tribunal had heard evidence from all of the family, yet each had reached opposing decisions in respect of the reasonableness of the children to return to Nigeria.

Error of Law Submissions

14. Mr Lams expanded on the grounds of appeal with reference to the failure to apply Section 117(6). He relied on the recent decision of Treebhawon and others (section 117B(6) [2015] UKUT 00674 (IAC) where Section 117B(6) was treated separately from the other provisions under Section 117 and the Upper Tribunal concluded that where the provisions of Section 117(6) were met this was determinative that a decision to remove an appellant would not be in the public interest. Further that there was no dilution to S.117B(6) because of other factors under Section 117B(1) to (3).

15. Mr Lams argued that the decision made by First-tier Tribunal Judge Ruth ("the second decision") also failed to comply with Treebhawon. The resultant contradictory findings and conclusions reached by the two Tribunals were unsatisfactory and resulted in unfairness to the children whose best interests were of relevance given that the eldest had been in the UK for nine years.

16. Ms Brocklesby-Weller relied on the Reasons for Refusal Letter and submitted that the FtT had correctly relied on Dube in which it was concluded that consideration should be given to all of the public interest factors and that it was not an "a la carte menu". She argued that Section 117B(6) was not a trump card and that all other factors with regards to public interest under Section 117 must be taken into consideration albeit they were not exhaustive. The FtT had properly considered the relationship as between the appellant and his children in the context that he had access to them, he was not a pivotal figure in their lives and there would be no adverse impact on their lives by his removal. Whilst there was sufficient evidence to show a genuine relationship between the appellant and his children, the FtT considered this in the context of the fact that they lived with their mother and the evidence as to the frequency of visits was not consistent.

17. Ms Brocklesby-Weller argued that the assessment of reasonableness made by the FtT disclosed an error of law. In chronological terms although the appellant's hearing had taken place in March 2015, that decision was not promulgated until after promulgation of the second decision in which Judge Ruth decided that it was not unreasonable for the children to return to Nigeria with their mother. That Tribunal heard evidence from the mother and had extensive documentary evidence concerning the children (none of which was before First-tier Tribunal Judge Stokes). It was arguable that that the decision of FtJ Ruth should take precedence or at least be taken into account.

18. Ms Brocklesby-Weller submitted that it was only in the event that an error of law was found in the decision of Ft Judge Stokes that the cross-appeal as regards reasonableness came into the forum.

19. Mr Lams responded by submitting that the Presidential decision in Treebhawon took precedence over that of Dube. There was a clear error of law and Treebhawon was binding. He further submitted that it would be unfair to allow the second decision to take precedence where the appellant had not in fact been a party to those proceedings. Mr Lams conceded that the second decision could be taken into account in consideration of the best interests of the children.

Discussion and Decision

20. The appeal before me is in relation to the decision and reasons of First-tier Tribunal (Judge Stokes). The appellant, who has two children, aged 8 and 5 years, born in the UK, and his former partner are all citizens of Nigeria. The FtT found that the appellant had informal access to his children, although there was some inconsistency in terms of the frequency of contact [25], it found that there was a genuine and subsisting parental relationship. The FtT found that the eldest child was a "qualifying child" under Section 117B(6); he had lived in the UK for seven years. The FtT considered where the best interests of the children lay and whether or not it would be reasonable for them to return to Nigeria in the event of the appellant's removal. It is of note that the respondent in the reasons for refusal letter made reference to consideration of "best interests" under Section 55 in general terms, but did not engage in any specific consideration of the best interests of the children, having regard to the fact that none of family had lawful leave to remain in the UK and all were citizens of Nigeria. The respondent's view was that the children could reasonably return to Nigeria without interference to their family lives. I take the view that at the time the FtT heard the appeal there was uncertainty about the future of both children in light of the fact that the children were dependents on their mother's application which was pursued separately. Clearly there was no real prospect of removal of the children in the event of the appellant's removal to Nigeria, as their situation would be dependant on their mother's, but their circumstances were relevant to the appellant's family life. It ought to have been apparent to all concerned that the two sets of proceedings ought to have been linked, heard and determined before the same Tribunal. Sadly that did not happen.

21. I have considered the arguments made by Mr Lams as to the applicability of Section 117B(6) following Treebhawon which itself post dated the appeal. I do not find any error of law in the FtT's approach. The decisions of Treebhawon and Dube which was relied on by First-tier Tribunal Judge Stokes are on an equal footing. Furthermore the factual nexus in Treebhawon is entirely different from that in the present appeal where the appellant has not lived as a family unit with his former partner or children and his parental relationship is based on access visits. The FtT's approach was entirely reasonable as it considered the impact on the appellant in the event that the children remained in the UK and found that family life could be maintained by visits and communication. I am satisfied that the FtT engaged fully with the provisions of section 117B and in particular section 117B(6). The FtT balanced the public interest as against the interests of the appellant and family members, and concluded that there was a strong public interest in the maintenance of a fair immigration control having taken into account that none of the family members had lawful status in the UK. The fact that the eldest child was a qualifying child and Section 117B(6) was met was relevant as a part of the overall consideration of factors for and against public interest in the appellant's removal.

22. As I have found no material error of law in the FtT decision, it is not necessary for me to consider the secondary position put forward by the respondent as regards the Tribunal's findings concerning the reasonableness of the children returning to Nigeria. That matter and the best interest of the children have been fully ventilated and determined by First-tier Tribunal Judge Ruth and the appeal rights of the mother and children are now exhausted.

23. As I have stated above ideally these proceedings ought to have been heard together. However as I indicated to Mr Lams at the hearing, I have given full consideration to the position of the children and I am satisfied that there has been no resultant unfairness to them or to the appellant. I am satisfied that their best interests have been fully and fairly considered by the second Tribunal that concluded that it would not be unreasonable to expect them to return to Nigeria with their mother upon whom they are dependent.

Notice of Decision

24. I find no material error of law. The First-tier Tribunal determination shall stand. The appeal is dismissed.

No anonymity order is made.

Signed Date 19.1.2016

GA Black
Deputy Upper Tribunal Judge G A Black

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 19.1.2016

GA Black
Deputy Upper Tribunal Judge G A Black