IA/49878/2013
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The decision
IAC-AH-VP-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/49878/2013
THE IMMIGRATION ACTS
Heard at Birmingham Sheldon Court
Determination Promulgated
On 5th December 2014
On 29th December 2014
Before
DEPUTY UPPER TRIBUNAL JUDGE JUSS
Between
mr isaac mdbolaji gbadamosi
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Augustine Otor-Osagie (Solicitor)
For the Respondent: Mr David Mill (HOPO)
DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Graham, promulgated on 13th August 2013, following a hearing at Birmingham Sheldon Court on 14th July 2014. In the determination, the judge allowed the appeal of Isaac Mdbolaji Gbadamosi. The Respondent subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The appellant is a male, a citizen of Nigeria, whose was born on 28th September 1980. He applied for further leave to remain in the UK as the partner of Oluwatosin Odunola, a person present and settled in the UK under Appendix FM of the Immigration Rules. By a decision dated 23rd October 2013, the Respondent Secretary of State refused the appellant's application.
The Appellant's Claim
3. The appellant claimed that he was no longer in a relationship with the mother of his child, Oluwatomiwa Mobolaji Isaac J Gbadamosi, who had been born to them on 13th June 2012, and this was confirmed by the child's mother herself. What the appellant maintained, however, was that he is the primary carer of his son, dropping the son off at school, collecting him from the nursery regularly (see paragraph 9). The child's mother is studying at Coventry University for a degree in biomedical sciences and it is the appellant who is really the day-to-day carer of the child to all intents and purposes (see paragraph 10).
The Judge's Findings
4. The judge found both the appellant and the sponsor as credible witnesses, the evidence being consistent, and accepted that the appellant was looking after the 1 year old son on a day-to-day basis (paragraph 12). The judge had regard to the case law in Gulshan [2013] UKUT 00640, and allowed the appeal on the basis that, the Secretary of State not having fully considered the effect on the child if the appellant were to be returned to Nigeria, that the child's welfare required the appellant to be in the UK to provide him with care (paragraph 23).
Grounds of Application
5. The grounds of application state that the judge erred with respect to the decision under Article 8, in failing to properly heed the direction in Gulshan that compelling circumstances were required before one could consider the position under the Article 8 if the appellant did not already succeed under the Immigration Rules.
6. On 25th September 2014, permission to appeal was granted.
Submissions
7. At the hearing before me on 5th December 2014, the appellant was represented by Mr Augustine Otor-Osagie, and the Respondent Secretary of State (who was appealing before me on this occasion) was represented by Mr David Mills. Mr David Mills, submitted that when the Grounds of Appeal were drafted, the point was taken that there was an intermediary test under Gulshan that had to be satisfied before one could go on to consider Article 8. The failure of the judge to do this rendered his determination unsafe. However, since then, the case of MM in the Court of Appeal (see MM (Lebanon) [2014] EWCA Civ 985), now confirmed that all that was required was an arguable case that there may be good grounds for granting leave to remain outside the Rules. Furthermore, this had been adopted only a day before this hearing in a determination by the Upper Tribunal in the case of Oludoyi [2014] UKUT 00539. This being so, Mr David Mills submitted that he would have to concede that the Grounds of Appeal could no longer be sustained.
8. For his part, Mr Augustine Otor-Osagie submitted that if that was the case, he could not add very much.
No Error of Law
9. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside that decision. My reasons are as follows.
10. First, it is clear, that the judge does refer to Gulshan (at paragraph 18) and applies the test as stipulated by Gulshan (even if that test is now no longer sustainable), by requiring an additional basis for "compelling circumstances". This, as the judge explained, was a case if one had regard to the Section 55 obligation of the BCIA 2009, whereby a decision maker had to have full regard to the welfare of the child in any arrangement, and the Secretary of State had not done so (see paragraph 19). The judge having looked at the factual scenario himself, concluded that as far as the appellant was concerned, he sees the child every day and regularly has the child to stay overnight in this case although the child is of a tender age" and that "I am satisfied that it is not in the child's welfare to require the appellant to leave the UK for an indefinite period and thereby separate the child from his father and deprive the child of his primary carer" (paragraph 23). The judge was entitled to come to this view, even if he was applying the strictures in Gulshan.
11. Second, and in any event, the position in Gulshan has now been eclipsed by a number of cases beginning with the case of MM (Lebanon) and culminating of late with the Tribunal decision in Oludoyi, all of which suggest that there is no intermediary test that additionally has to be satisfied. What is needed is an arguable case that good grounds exist for granting leave. The judge would have allowed the appeal on this basis as well. This being so, there is no error of law at all in the determination.
Decision
12. There is no material error of law in the original judge's decision. The decision shall stand.
13. No anonymity order is made.
Signed Date
Deputy Upper Tribunal Judge Juss 27th December 2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/49878/2013
THE IMMIGRATION ACTS
Heard at Birmingham Sheldon Court
Determination Promulgated
On 5th December 2014
On 29th December 2014
Before
DEPUTY UPPER TRIBUNAL JUDGE JUSS
Between
mr isaac mdbolaji gbadamosi
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Augustine Otor-Osagie (Solicitor)
For the Respondent: Mr David Mill (HOPO)
DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Graham, promulgated on 13th August 2013, following a hearing at Birmingham Sheldon Court on 14th July 2014. In the determination, the judge allowed the appeal of Isaac Mdbolaji Gbadamosi. The Respondent subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The appellant is a male, a citizen of Nigeria, whose was born on 28th September 1980. He applied for further leave to remain in the UK as the partner of Oluwatosin Odunola, a person present and settled in the UK under Appendix FM of the Immigration Rules. By a decision dated 23rd October 2013, the Respondent Secretary of State refused the appellant's application.
The Appellant's Claim
3. The appellant claimed that he was no longer in a relationship with the mother of his child, Oluwatomiwa Mobolaji Isaac J Gbadamosi, who had been born to them on 13th June 2012, and this was confirmed by the child's mother herself. What the appellant maintained, however, was that he is the primary carer of his son, dropping the son off at school, collecting him from the nursery regularly (see paragraph 9). The child's mother is studying at Coventry University for a degree in biomedical sciences and it is the appellant who is really the day-to-day carer of the child to all intents and purposes (see paragraph 10).
The Judge's Findings
4. The judge found both the appellant and the sponsor as credible witnesses, the evidence being consistent, and accepted that the appellant was looking after the 1 year old son on a day-to-day basis (paragraph 12). The judge had regard to the case law in Gulshan [2013] UKUT 00640, and allowed the appeal on the basis that, the Secretary of State not having fully considered the effect on the child if the appellant were to be returned to Nigeria, that the child's welfare required the appellant to be in the UK to provide him with care (paragraph 23).
Grounds of Application
5. The grounds of application state that the judge erred with respect to the decision under Article 8, in failing to properly heed the direction in Gulshan that compelling circumstances were required before one could consider the position under the Article 8 if the appellant did not already succeed under the Immigration Rules.
6. On 25th September 2014, permission to appeal was granted.
Submissions
7. At the hearing before me on 5th December 2014, the appellant was represented by Mr Augustine Otor-Osagie, and the Respondent Secretary of State (who was appealing before me on this occasion) was represented by Mr David Mills. Mr David Mills, submitted that when the Grounds of Appeal were drafted, the point was taken that there was an intermediary test under Gulshan that had to be satisfied before one could go on to consider Article 8. The failure of the judge to do this rendered his determination unsafe. However, since then, the case of MM in the Court of Appeal (see MM (Lebanon) [2014] EWCA Civ 985), now confirmed that all that was required was an arguable case that there may be good grounds for granting leave to remain outside the Rules. Furthermore, this had been adopted only a day before this hearing in a determination by the Upper Tribunal in the case of Oludoyi [2014] UKUT 00539. This being so, Mr David Mills submitted that he would have to concede that the Grounds of Appeal could no longer be sustained.
8. For his part, Mr Augustine Otor-Osagie submitted that if that was the case, he could not add very much.
No Error of Law
9. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside that decision. My reasons are as follows.
10. First, it is clear, that the judge does refer to Gulshan (at paragraph 18) and applies the test as stipulated by Gulshan (even if that test is now no longer sustainable), by requiring an additional basis for "compelling circumstances". This, as the judge explained, was a case if one had regard to the Section 55 obligation of the BCIA 2009, whereby a decision maker had to have full regard to the welfare of the child in any arrangement, and the Secretary of State had not done so (see paragraph 19). The judge having looked at the factual scenario himself, concluded that as far as the appellant was concerned, he sees the child every day and regularly has the child to stay overnight in this case although the child is of a tender age" and that "I am satisfied that it is not in the child's welfare to require the appellant to leave the UK for an indefinite period and thereby separate the child from his father and deprive the child of his primary carer" (paragraph 23). The judge was entitled to come to this view, even if he was applying the strictures in Gulshan.
11. Second, and in any event, the position in Gulshan has now been eclipsed by a number of cases beginning with the case of MM (Lebanon) and culminating of late with the Tribunal decision in Oludoyi, all of which suggest that there is no intermediary test that additionally has to be satisfied. What is needed is an arguable case that good grounds exist for granting leave. The judge would have allowed the appeal on this basis as well. This being so, there is no error of law at all in the determination.
Decision
12. There is no material error of law in the original judge's decision. The decision shall stand.
13. No anonymity order is made.
Signed Date
Deputy Upper Tribunal Judge Juss 27th December 2014