Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/43047/2014
IA/43046/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 September 2016
On 11 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

CHRISTIANA [A]
[O A]
(anonymity direction NOT made)
Respondents

Representation:
For the Appellant: Ms J. Isherwood, Home Office Presenting Officer
For the Respondents: Not represented

DECISION AND REASONS

1. By way of a decision promulgated on 7 June 2016, the decision of the First-tier Tribunal promulgated on 15 October 2015 was set aside to be remade.

2. For the purposes of this decision, I refer to the Secretary of State as the Respondent, to Christiana [A] as the first Appellant, and to [OA] as the second Appellant, reflecting their positions as they were before the First-tier Tribunal.

3. The Appellants attended the hearing. They were not legally represented. I heard oral evidence from the first Appellant. She asked that the second Appellant leave the room while she gave evidence. I asked a couple of simple questions of the second Appellant. I was mindful of the Joint Presidential Guidance Note No. 2 of 2010: Child, vulnerable adult and sensitive Appellant guidance, given his age. Ms Isherwood made oral submissions to which the first Appellant responded.

4. The first Appellant had not provided any fresh evidence. I have taken into account the documents in the Respondent's bundle, together with two letters referring to the second Appellant's education. I have a copy of the application, but I do not have a copy of any of the attachments sent with this application.

Decision and reasons

5. The Appellants had legal representation at the start of the appeal process, but they have not had any representation for some time, and were not represented in the First-tier Tribunal. The first Appellant was clearly nervous. Nevertheless, she was able to answer the questions put to her in cross-examination and was not evasive. She was clearly concerned that the second Appellant did not hear the contents of her evidence, in particular relating to the treatment she received from her husband in Nigeria, and she asked that he leave the room while she gave evidence. Similarly I asked him to leave during submissions in the event that any sensitive issues be raised.

6. Whereas I find that the first Appellant has two other daughters living in the United Kingdom, they are not the subject of this appeal. The first Appellant was asked by Ms Isherwood why she had not mentioned her other children in her application. She said that she had been advised by her lawyer not to mention them as they were "of age". The second Appellant is the only child under the age of 18. She said that they had not put in an application as she did not have enough money to pay for them. Ms Isherwood pressed this point, but the first Appellant's answer was consistent that she did not have enough money to make an application for them. I accept this explanation and, while of course her daughters should not be remaining in the United Kingdom without leave or without making any attempts to regularise their stay, they are adults, and they are not the subject of this appeal. They do not live with the Appellants. They are the half-sisters of the second Appellant. When considering reasonableness of return, I am considering the position of the Appellants returning together. I am not considering a scenario where the Appellants return with the first Appellants' two daughters as a unit of four, as was suggested by Ms Isherwood.

7. Taking all of the first Appellant's circumstances into account, I found her to be an honest witness. She answered all the questions which were put to her, and I find that her evidence can be relied on.

8. I accept that I have very little in the way of corroborative documentary evidence. The core issue before me is that of the reasonableness of returning the second Appellant to Nigeria, which is relevant to my consideration under the immigration rules relating to family or private life, and to any consideration of Article 8 outside the immigration rules. The absence of corroborative documentary evidence, while taken into account, does not damage the Appellants' case.

Immigration rules

9. I find that the Appellants arrived in the United Kingdom on 4 June 2005. I find that as at the date of the application, 27 June 2012, they had been in the United Kingdom for seven years. I find that the second Appellant was born on 25 May 2002, and is now 14 years old.

10. The Respondent considered the first Appellant's application for leave to remain as a parent under paragraph R-LTRPT.1.1.
"The requirements to be met for limited leave to remain as a parent are-
(a) the applicant and the child must be in the UK;
(b) the applicant must have made a valid application for limited or indefinite leave to remain as a parent or partner; and either
(c)
(i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and
(ii) the applicant meets all of the requirements of Section ELTRPT: Eligibility for leave to remain as a parent, or
(d)
(i) the applicant must not fall for refusal under S-LTR: Suitability leave to remain; and
(ii) the applicant meets the requirements of paragraphs E-LTRPT.2.2-2.4. and E-LTRPT.3.1-3.2.; and
(iii) paragraph EX.1. applies.

11. The Respondent considered that the first Appellant did not meet the relationship requirements so as to meet the requirements of (c)(ii) by reference to paragraph E-LTRPT.3.2, as she had remained in the UK in breach of immigration laws for a period of over 28 days.

12. The Respondent therefore considered whether subparagraph (d) applied. She did not refuse it by reference to the suitability requirements under (d)(i). She refused it with reference to paragraph E-LTRPT.2.2 and paragraph EX.1.(a) as she did not accept that the conditions in paragraph EX.1.(a) were met. I have considered whether or not this paragraph is met, and therefore whether the first Appellant meets the requirements of R-LTRPT.1.1.

13. Paragraph EX.1.(a) applies where an applicant has a genuine and subsisting parental relationship with a child who is under the age of 18 years, who is in the UK, who is a British Citizen or has lived in the UK continuously for at least the seven years immediately preceding the date of application, and where it would not be reasonable to expect the child to leave the UK.

14. In considering whether or not it would be reasonable to expect the second Appellant to leave the United Kingdom, I have taken into account his best interests in accordance with section 55 of the 2009 Act. His best interests must be a primary concern. I have also taken into account the cases of ZH Tanzania [2011] UKSC 4, and EV (Philippines) [2014] EWCA Civ 874, particularly paragraph 35. This provides:

"A decision as to what is in the best interests of children will depend on a number of factors such as (a) their age; (b) the length of time that they have been here; (c) how long they have been in education; (c) what stage their education has reached; (d) to what extent they have become distanced from the country to which it is proposed that they return; (e) how renewable their connection with it may be; (f) to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and (g) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens."

15. I was also referred by Ms Isherwood to the cases of MA (Pakistan) [2016] EWCA Civ 705, AM (S 117B) Malawi [2015] UKUT 0260 (IAC), and Rajendran (s117B - family life) [2016] UKUT 00138 (IAC).

16. I find that the second Appellant is 14 years old. As at the date of the application, he had been in the United Kingdom for seven years. At the date of the hearing, he had been in the United Kingdom for 11 years. He has been in education since 28 November 2006 when he joined Gascoigne Primary School. He would have been 4 years old at the time. He has attended Eastbury Comprehensive School since 4 September 2013. He is now 14 years old and in his fourth year at secondary school.

17. I find that the second Appellant has not returned to Nigeria since coming to the United Kingdom some 11 years ago. In relation to the Appellants' contacts and ties with Nigeria, the first Appellant said at the hearing that her parents had died and that she had no family in Nigeria. She had one brother, but he had died. She had no aunts or uncles in Nigeria. She had no home in Nigeria. She was asked whether she had any friends in Nigeria, and said that unfortunately she did not make friends. She said that she did not have contact with anyone in Nigeria.

18. The first Appellant said that she had had contact with the second Appellant's father once while she was in the United Kingdom but it was a long time ago. She said that he had found somebody who had said that they had met the first Appellant which is how he had established contact. She said that he had remarried and had two wives. Further he was a Muslim and she was a Christian. I find on the balance of probabilities that the second Appellant does not have any contact with his father.

19. The first Appellant said in cross-examination that her two daughters have contact with their father. However, this is not the second Appellant's father. Ms Isherwood submitted that this contact could be utilised on the Appellants' return to Nigeria. I find that this man is not the second Appellant's father. I accept the first Appellant's evidence that she has no contact with this man. I do not find that this man represents a credible form of contact and tie for the second Appellant. I find on the balance of probabilities that neither the first nor second Appellant has any contact with anyone in Nigeria.

20. I find that the Appellants attend church. It was submitted by Ms Isherwood that, this being a Nigerian church, the Appellants were culturally integrated into Nigerian culture. The first Appellant said that it was not only Nigerians who attended the church, but also Ugandans, Ghanaians, and people from many countries. The church was not meant only for Nigerians. Even if the Appellants did attend a church in the United Kingdom solely intended for Nigerians, I would not find that this meant that the second Appellant was "culturally integrated" into Nigeria. It might mean that he had had some contact with Nigerian culture, but that is not the same as being "culturally integrated".

21. The second Appellant said at the hearing that he did not understand the language in Nigeria. The only language that he speaks is English. I find that English is the official language of Nigeria, although I accept that it is not the only language.

22. The first Appellant said that the second Appellant had to go to the doctor a lot and in winter it was worse. She did not know exactly what the problem was, and had no corroborative medical evidence. The second Appellant said that he had had to visit the doctor in the UK for allergies in winter. He said that it was a hayfever type problem. He was given eye drops, cough medicine and one further tablet, although he did not know what that was. I find that while the second Appellant may suffer from allergy-type problems in the winter, I have no evidence that they are serious, and no evidence that he is suffering from any other illness.

23. Regarding other difficulties which the second Appellant will have in adapting to life in Nigeria, I have accepted the evidence of the first Appellant that she has no contact with Nigeria. I find that she does not have any family members living in Nigeria. I find that she does not have a home in Nigeria. I find that she survives in the United Kingdom on charity from the church that she attends. I find that she cleans the church. She said that she has "no money" and I find that she is in a precarious financial position. I find that she does not have any assets in the United Kingdom which could be sold in order to fund the Appellants when they returned to Nigeria. I find that the second Appellant would have no home to return to in Nigeria, and no relatives or friends who could support the Appellants while the first Appellant established herself and got herself into a position where she could provide for the second Appellant. I find that she does not have any formal financial assistance from the church here which would continue on her return to Nigeria.

24. The second Appellant is not a British citizen.

25. I find that it would be in the second Appellant's best interests to remain in the United Kingdom. I find that remaining in the United Kingdom would provide him with stability and continuity of educational provision. I find that it would not be in his best interests to return to Nigeria where he would be without a home, without support from friends or relatives, and where the first Appellant would not be in a financial position to be able to support him until she had obtained employment. Without a home and a network of support, finding employment would not be straightforward.

26. However, finding that it is in his best interests to remain in the United Kingdom is not the same as finding that it would not be reasonable to expect him to leave the United Kingdom. I have taken into account the case of MA, in particular paragraph [47].

27. In considering whether or not it is reasonable, I have taken into account the immigration history of the Appellants. While the second Appellant is a minor, and no blame can be attached to him for his lack of immigration status, I must take into account the circumstances of the first Appellant. I find she came to the United Kingdom in 2005 on a visit visa and did not return to Nigeria when it expired. I find that she made an application for leave to remain in 2012. I have no evidence that she made any attempt to regularise her position before this time.

28. I have taken into account the circumstances to which the second Appellant will return in Nigeria if he leaves the United Kingdom. I find that he does not have a home to return to in Nigeria. I find that there is no support network to help him to adapt to life in Nigeria. I find that there would be an immense disruption to his life, and I do not find that this would be short-lived owing to the circumstances of the first Appellant and their lack of contact and support in Nigeria. I find that there would be a great amount of uncertainty and instability.

29. I have found above that the second Appellant has stability in the United Kingdom in the form of his schooling, and the social circle he will have developed at school. I find that he will find it harder to develop a private life in Nigeria owing to the fact that he only speaks English. He has not been to Nigeria for some 11 years. He has had no contact with Nigeria since he left at the age of three.

30. I take into account the immigration history of the first Appellant, but that does not outweigh the difficulty of the situation to which the second Appellant will return, and the instability and uncertainty he will face. I have taken into account the case of Rajendran, and while I find that family life has been established when the Appellants have not had leave to remain, this factor, and the consequent weight to be applied to such family life, does not outweigh the problems which the second Appellant will face in Nigeria. He will be in a country which he does not know, with only his mother, the first Appellant, for support. I find that she will be without a home, without a job, without friends or family, and therefore without the means to support the second Appellant. In these circumstances, I find that it is not reasonable to expect the second Appellant to leave the United Kingdom.

31. I therefore find that the first Appellant meets the requirements of paragraph R-LTRPT.1.1.(a) (b) and (d).

32. Paragraph 276ADE(1)(iv) provides that leave should be granted where an applicant is under the age of 18 years and has lived continuously in the United Kingdom for at least seven years, and it would not be reasonable to expect him to leave the United Kingdom. Having found that it would not be reasonable for the second Appellant to leave the United Kingdom for the reasons set out above, I find that he meets the requirements of paragraph 276ADE(1)(iv).

33. Having allowed the appeals under the immigration rules, I do not need to go on to consider Article 8 outside the immigration rules.

Notice of Decision

34. The appeals are allowed under the immigration rules.

Signed Date 10 October 2016

Deputy Upper Tribunal Judge Chamberlain