Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA266522015
IA266532015 and IA266562015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 June 2016
On 16 June 2016
Before

Deputy Upper Tribunal Judge MANUELL

Between

(1) ADEWOLA [O]
(2) [A O]
(3) [O O]
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Ms C Hulse, Counsel
(instructed by Rotherham & Co Ltd)
For the Respondent: Mr K Norton, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction

1. The Appellants appealed with permission granted by First-tier Tribunal Judge Gillespie on 11 May 2016 against the determination of First-tier Tribunal Judge Lodge who had dismissed the Appellants' linked appeals seeking settlement on Article 8 ECHR grounds. The decision and reasons was promulgated on 10 February 2016.

2. The Appellants are nationals of Nigeria, mother and dependant children. At time of the application for leave to remain, the children's parents were separated, but they were reunited by the date of the hearing as the judge noted at [27] of his decision. Neither parent had ever proved any form of leave to enter or remain in the United Kingdom. The children were born in the United Kingdom. The judge found that it was reasonable for both children to leave the United Kingdom with their parents and to travel with them to Nigeria where they would be protected from danger. The children were both young. Their parents would help them to adapt. There was no issue as to parental competence. Hence the appeals were dismissed.

3. Permission to appeal was granted because it was considered arguable that the judge had cited no relevant authorities and that the decision was without proper findings as to the best interests of the children. It was ruled arguable that undue weight had been given to the adverse immigration history of the parents.

4. Standard directions were made by the tribunal. A rule 24 notice opposing the appeal was filed by the Respondent, indicating reliance on EV (Philippines) [2014] EWCA Civ 874.

Submissions

5. Ms Hulse for the Appellants relied on the grounds of onwards appeal and grant. In summary she sought to argue that the judge omitted to apply ZH (Tanzania) [2011] UKSC 4. The children's best interests had not been considered at all. It was not in the best interest of the children to leave the United Kingdom because it would disrupt their lives and their education. The focus had wrongly been on the parents' immigration history. PD and Others (Article 8 - conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC) was supportive of the Appellants' appeal.

6. Mr Norton for the Respondent, having noted the interchange between the tribunal and Ms Hulse during submissions, wished to rely on the rule 24 notice and wished to add nothing further.

No material error of law finding

7. In the tribunal's view the grant of permission to appeal was far too generous, and was not based on a fair reading of a careful decision. It was not necessary for the judge to have cited any authorities, although it is sometimes sensible to do so in the hope of reducing meritless applications to appeal such as the present ones, which clog the tribunal's lists and waste public money.

8. It was quite wrong to suggest that the judge had not considered the best interests of the two children concerned. Their position received extensive attention. Their best interests were found to be to live with both their parents. The judge's finding that the children's father would leave the United Kingdom at the same time as their mother was crucial: see again [27]. There was no expert evidence for the judge to consider. The judge considered the FGM risk claim lately raised and found it to be in effect a fabrication: see [32]. It is plain that the judge correctly applied the principles of relevant decisions such as EV (Philippines) (above), which build on the foundations of ZH (Tanzania) (above).

9. It is similarly wrong to suggest that the judge gave undue weight to the immigration history of the children's parents. There was no suggestion that the children were in any way to blame for the faults of their parents. There was no dispute that the parents were present in the United Kingdom illegally and were facing lawful removal. The only real relevance of the parents' history was its impact on the assessment of the veracity of their evidence generally.

10. The judge applied the correct legal framework: see [26]. Ms Hulse's "disruption" argument concerning the children's best interests was simply a repetition of points which the judge had sufficiently considered and answered: see, e.g., [27].

11. PD and Others (above) merely illustrates the variety of Article 8 ECHR appeals involving children. No significant point of principle is established. The facts are very different indeed from the present appeals, both with respect to the parental immigration history and with respect to the age of the child (14 at the date of the decision). PD and Others is of no assistance.

12. The tribunal finds that these appeals have no substance and that there was no material error of law in the decision challenged.

DECISION

The making of the previous decision did not involve the making of a material error on a point of law. The decision stands unchanged.

Signed Dated 16th June 2016

Deputy Upper Tribunal Judge Manuell