Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/47851/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25th October 2016
On 17th November 2016

Before

DEPUTY upper tribunal judge ROBERTS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

A.A.
(ANONYMITY DIRECTIOn made)

Respondent

Representation:

For the Appellant: Ms Isherwood, Senior Home Office Presenting Officer
For the Respondent: Mr Murquit, Counsel

Anonymity

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity is granted in these proceedings because the decision contains confidential information relating to minors.

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of a First-tier Tribunal (Judge Twydell) which in a decision promulgated on 3rd May 2016 allowed the Respondent's appeal against the Secretary of State's refusal to grant her leave to remain in the UK on account of her Article 8 family/private life rights.
2. For the sake of clarity, in this decision I shall refer to the Secretary of State as "the Respondent" and to A.A. as "the Appellant," reflecting their respective positions before the First-tier Tribunal.
3. The Appellant's case centres on the fact that she and her husband are living in the United Kingdom together with their three children - T aged 15 years, O aged 12 years, and A aged 6 years. All three children are citizens of Nigeria, but the eldest two, although born in Nigeria, have now lived in the UK for over seven years. The youngest child was born in the UK.
Background
4. The Appellant (born 25th October 1972) is a citizen of Nigeria. She entered the UK in 2004 on a student visa. She submitted further applications for leave to remain as a student, some of which were granted but some not.
5. On 12th July 2006 she submitted an application for leave to remain as a student which was granted to 31st October 2007. On 7th March 2007 the Appellant's husband and two elder children entered the UK as her dependants. The Appellant's third child was subsequently born in the UK.
6. The Appellant then made further application for leave to remain. Those applications were subsequently refused and appeals against the refusal decisions were dismissed. She therefore remains here without leave.
7. On 4th April 2014 the Appellant made another application for leave to remain, this time, on the basis of her Article 8 ECHR family and private life. This application was refused and forms the basis of the present appeal.
FtT Hearing
8. When the matter came before the FtT, the judge heard oral evidence from the Appellant and her husband. In addition he had before him a report from an independent social worker which represented the views of the Appellant's eldest two children, the third child being of tender years only.
9. The FtT said at [20];
"I found the oral evidence of the Appellant and her husband inconsistent regarding their employment situation in the UK, what accommodation was available to them if they returned to Nigeria and the reasons for [T's] deterioration in her behaviour at school."
At [21] the FtT said the following;
"The Appellant has two sisters and one brother living in Nigeria and three brothers living in the UK with whom she is in contact. Her husband only has family members living in Nigeria."
The judge followed this up at [22] saying;
"The Appellant and her husband accepted they had been working in the UK, the Appellant providing catering services for parties and her husband working as a barber and or cleaner. Further it was clear from the evidence they have accessed public services in the UK namely health and education facilities for their children. They both have higher education qualifications and English is spoken in Nigeria."
10. He went on to look at the evidence of the social worker. He dealt with that evidence in one paragraph at [26] saying;
"The report deals with the children's lives in terms of their social and community links, their hobbies and progress at school. Mr Horrocks states, at paragraph 4.21 if the family was returned to Nigeria, the two elder children would be forced "... to leave behind everything that is family in their lives ... This will be a traumatic and distressing experience ..." Further at paragraph 4.22 and 4.23 he states that in his professional opinion the children will suffer harm to their educational and social development and will be seen as different by other children in Nigeria because of their accents and background. At paragraph 4.24, he states [A] would be more adaptable to change in light of his age."
11. Based upon that evidence, the FtT found that the conditions of Section 117B(6) were satisfied and that the social worker report, regarding the impact on the children if they were forced to leave the UK carried significant weight. He concluded saying;
"I do not find that the Respondent's decision was proportionate. It would not be reasonable to expect (the eldest two children) to return to Nigeria either alone or with their parents and younger brother. In the light of such findings I find there would be insurmountable obstacles to family life for the Appellant and her family outside the UK."
Onward Appeal
12. The Respondent sought and was granted permission to appeal on the following grounds;
(1) The judge made contradictory/inadequate findings.
(2) Failed to make adequate findings on whether insurmountable obstacles existed to the family unit relocating to Nigeria.
(3) Misinterpreted case law on the "reasonableness test" concerning the eldest two children.
Thus the matter comes before me to decide if the FtT decision discloses material error requiring it to be set aside and re-made.
Error of Law Hearing
13. I heard submissions from Ms Isherwood and Mr Murquit. Ms Isherwood's submissions kept to the grounds seeking permission. She emphasised however that the FtT's reasons were "considerably lacking in detail" when it came to a consideration of the public interest in the context of the reasonableness test. She submitted that although the FtT had referred to and set out various decisions, those decisions all focused heavily on the education which the eldest two children enjoyed. She accepted that a seven year residence must be given significant weight in any proportionality test, but the judge had failed to remind himself and follow the approach set out in AM Malawi and EV Philippines. Instead of treating the interests of the Appellant's eldest two children as a starting point, the judge had treated those interests as paramount and therefore determinative. The decision should therefore be set aside for error and returned to the FtT for a full reasoned decision to be made by that Tribunal.
14. Mr Murquit handed in a Rule 24 response. In essence, he argued, the eldest two children had lived continuously in the UK for seven years prior to their mother's application for leave to remain in 2014. They were able therefore to satisfy the requirements for leave on private life grounds, by reference to 276ADE(iv) of the Rule and were qualifying children for the purposes of Section 117B(6) of the 2002 Act, subject to establishing it would not be reasonable to expect them to leave the UK.
15. He said that having considered all relevant factors, the judge concluded that the removal of the Appellant (mother) would amount to a disproportionate interference with her Article 8 rights. The judge had found at [33] it would not be reasonable to expect the family to be separated from each other. The judge found that the family would reasonably expect to stay together as one unit. Having found in light of the elder two children's integration here that their best interests would be to remain here, it was open to the judge to find that the removal of the Appellant would amount to a disproportionate interference with her family life.
16. Mr Murquit asserted that the judge in his application of Section 117B(6), had in fact applied the principles adumbrated in MA (Pakistan) and Others [2016] EWCA Civ 705. He submitted therefore that the decision was sustainable and should stand.
Consideration
17. I am satisfied that the decision of the FtT discloses material error requiring it to be set aside. My reasons are as follows.
18. Whilst Mr Murquit pointed out that the principles adumbrated in MA and Others are ones which the FtT applied, I find I disagree. This is hardly surprising, in that MA and Others had not been published when the appeal was heard in the FtT.
19. However there was guidance available namely AM Malawi [2015] UKUT 260 and EV (Philippines) [2014] EWCA Civ 874 which I find, would have been of assistance to the judge had he followed the principles contained therein.
20. I find that although the FtT referred to parts of ZH (Tanzania) and considered the case of PB and Others, a plain reading of the decision in my judgment, shows that the judge appears to have treated the best interests of the Appellant's two eldest children as a paramount consideration rather than a primary one.
21. The fact that it may well be, after enquiry, that the best interests of a child may be served by remaining in the UK, is not the test. The test is whether or not it would be reasonable to expect the child to follow his or her parents to their country of origin. That is the context in which the best interests of the child must be placed. It is correct to say that the best interests of the child must be given significant weight according to the circumstances but that must be balanced against looking at the circumstances holistically including the public interest considerations.
22. In this case I find that the FtT judge has failed to remind himself that even though the best interests of the eldest two children are for them to remain, it may not be unreasonable to expect them to accompany their parents back to Nigeria a country of which they are all citizens, which has a functioning education system and where English is the spoken language. The judge appears to have simply failed to factor that evidence into the test of whether it would be unreasonable to expect the children to leave the UK.
23. I find therefore that this failure to properly have regard to all the evidence in the factual matrix, amounts to a lack of reasoning which is a material error requiring the decision to be set aside. I hereby set aside the decision. I find nothing can be preserved from the decision. It must be re-made afresh.
24. I did canvass with the parties, their views, on where would be the appropriate venue for the decision to be re-made in the event I found a material error. Both were of the view that as the Respondent's appeal is essentially a reasons challenge, it would be right to remit the matter to the First-tier Tribunal for that Tribunal to re-make the decision. I agree with that course. I direct therefore that this matter is remitted to the First-tier Tribunal for that Tribunal to re-make the decision.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error on a point of law; the decision is set aside and the case remitted to the First-tier Tribunal for that Tribunal to re-make the decision.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed C E Roberts Date 16 November 2016

Deputy Upper Tribunal Judge Roberts