Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/02095/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 March 2017
On 25 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ESHUN

Between

ms Blessing Rukainure Jones
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

ENTRY CLEARANCE OFFICER – LAGOS
Respondent

Representation:
For the Appellant: Mr J M René of Counsel
For the Respondent: Mr N Bramble, HOPO

DECISION AND REASONS

1. The appellant is a citizen of Nigeria born on 21 May 1981. She applied on 5 May 2014 for entry clearance as the primary carer of an European Economic Area (EEA) national child. The application was refused by the Entry Clearance Officer (ECO) on 8 January 2015 on the basis that the appellant’s two children are British citizens living with the appellant in Nigeria and not resident in the UK and that the appellant’s husband is a British citizen living in the UK and not exercising treaty rights. The applicant appealed against this decision. The decision was reviewed by an Entry Clearance Manager on 26 March 2015 but the decision was upheld.

2. It was conceded by Mr René at the hearing below that the appellant’s application could not succeed under the EEA Regulations and the Tribunal was asked to consider the matter under Article 8. The appellant’s appeal was dismissed by First-tier Tribunal Judge Bradshaw.

3. Permission to appeal the judge’s decision was granted by Upper Tribunal Judge Martin. She held that it is arguable that the judge erred in dismissing the appeal as it was arguable that denying the mother and primary carer of two British children, currently resident with her in Nigeria, entry to the UK deprived the British children, as EU citizens, of their rights under EU law to reside in the EU.

4. The facts before the judge were that the appellant married Mr Trevor Jones who was born on 18 September 1950, on 11 September 2010. They have two children, a son Harvey Ejowhokeoghene Jones born 1 March 2009 and a daughter, Haley Ruona Jones born 23 April 2012. I was told that both children were born in Nigeria. Their father, Trevor Jones, was at the time of their birth a British national. Both children lived in Nigeria with their mother and their father. Both children were at school in Nigeria. In September 2012, the appellant’s husband and the children’s father, Mr Trevor Jones, came to the UK for health reasons and intending to settle in the UK made the decision to leave his family in Nigeria. He has Parkinson’s disease and multi system atrophy.

5. The evidence was that Harvey came to the UK on 1 March 2015 for medical treatment and lived with his Aunt Joy. His aunt travelled to Nigeria to return him to the appellant’s care on 4 April 2016 because she was having difficulty looking after him having had two months off work for her own health reasons which were still under investigation. Joy took Harvey to see his father whilst he was in the UK. Harvey spent some time with his Aunt Hope, one of Joy’s sisters in the UK. She has young children of her own and could look after Harvey when she was not working.

6. Harvey attended school whilst he was in the UK. He was under the care of paediatrics for investigations because he suffered seizures in Nigeria but had none whilst in the UK. He had been prescribed medication in Nigeria but he brought none whilst in the UK and had been prescribed none in the UK. He also had a referral to Speech and Language Therapy in the UK over concerns about attention and listening problems and there had been concerns expressed about his behaviour.

7. Medical evidence about Trevor was produced in the form of a letter from his GP Dr T Eames in Stamford dated 18 February 2016 which confirmed that Trevor has a progressive neurological condition and is effectively housebound. He was under the care of hospital specialists but as yet there was no clear prognosis. His problems have prohibited him from leaving the UK to visit his wife. Trevor was in receipt of Personal Independence Payment and was reliant on benefits. He lived in sheltered accommodation which he was not allowed to share.

8. The judge noted the evidence that the appellant and the children live in Lagos. The appellant is self-employed as a petty trader and part-time hairdresser. The appellant, the children and Trevor maintain regular contact.

9. The appellant has twice applied for entry clearance as a visitor, once in 2007 when her application was refused for using deception because she submitted forged bank statements and secondly in 2013 when she was refused on the basis that she did not intend to return to Nigeria at the expiry of her visit. Both decisions were appealed and the appeals dismissed in each case.

10. The judge noted that the appellant has made no application for entry clearance to join her husband under the Immigration Rules. He also noted that the children are of course free to travel to the UK because they are not subject to immigration control.

11. The appellant intended for the whole family to live free at Joy’s house in Corby, currently rented but to be vacated for them, work part-time and care for her husband. Her sister Hope works as a nurse and she also was prepared to offer weekly financial support until the appellant was financially independent.

12. It was argued before the judge by Mr René that there were compelling circumstances in this case, namely the concerns over Harvey and the need to send him to the UK and Trevor’s evident ill-health and the fact that he appears to be unable to travel to see his family in Nigeria. The judge held as follows at [18].

“I was satisfied that any interference with the qualified right to respect for family life was justified and proportionate in the interests of maintaining effective immigration control. A person outside the UK may have a good claim under Article 8 of the ECHR to be allowed to enter the UK to join a family member already here so as to develop a family life or continue an existing one but the UK is entitled to control immigration. It is sometimes argued that where there is a case of a “near miss” in terms of satisfying or not satisfying the immigration rules that fact can be relevant and tip the balance under Article 8 in their favour. However, in this case there is no near miss with regard to the immigration rules because the appellant’s application under the EEA Regulations was totally misconceived and she has made no application under the immigration rules. There is family life and it could be argued that this is a case where Article 8 is engaged outside the rules. Clearly Trevor cannot travel to Nigeria but the children can travel to the UK to see their father. The appellant’s family in the UK have facilitated this for Harvey and could do so again. I bear in mind what is in the children’s best interests but they are with their mother and extended family in Nigeria. The status quo is maintained despite the present decision. They all remain in touch as heretofore. Harvey has received medical treatment before in Nigeria and can access this again. Both children are at school. In all the circumstances, therefore, I am satisfied that there is nothing compelling or exceptional about this case that renders the decision refusing leave to enter to be a disproportionate interference with the respect to which the appellant is entitled with regard to her family life and which would justify considering Article 8 outside the rules. Clearly the appellant wishes to come to the UK with her children and join Trevor and continued separation will be difficult for them. That is natural but taking the evidence as a whole I was satisfied that her continued exclusion from the UK is not disproportionate and I dismiss the appeal under Article 8”.

13. Mr René argued that the judge did not pull together all the strands when considering whether the circumstances in this case were compelling. The strands were Harvey’s situation; that when Trevor came to the UK in 2012, he did not intend to settle in the UK. That was the finding made by a judge in the determination of the appellant’s appeal against a refusal to grant her a visit visa on 23 September 2013. Mr René said that Trevor came to the United Kingdom for health reasons and was intending to return to Nigeria. He argued that the judge failed to consider this evidence.

14. Mr René added that the judge failed to give weight to the fact that the appellant, Trevor and the children had formed a family life in Nigeria before 2012 September when Trevor came to the United Kingdom. That was the status quo before September 2012. The status quo was not as found by the judge that the appellants remain with their mother in Nigeria.

15. Mr René further submitted that there was no reference to the offer of third party support of maintenance and accommodation that had been offered by the appellant’s sisters. This evidence has never been challenged.

16. Mr René submitted that the important aspect in this case is the two British born children. In granting permission, Upper Tribunal Judge Martin referred to the rights of the children. He said that what the evidence demonstrated was that Harvey had to come to the UK for medical treatment and he stayed for a considerable period of time. During that time, he attended school. However, he had to return to Nigeria because his aunt was not able to look after him because she herself was ill. This evidence has not been challenged. The judge accepted that the mother is the primary carer of the two British children but failed to consider that the enjoyment of family life with their father had been severed from 2012. This was only possible when Harvey came and spent time with his father.

17. Mr René argued that there was a lacuna in the Immigration Rules. This was because a family who are illegally resident in the UK can obtain legal status when the child after having been resident in the UK for ten years acquires British citizenship. The question how that family can acquire a better situation than that of the appellant who has two British citizen children by birth. He submitted that this argument was not considered by the judge. He did accept however that this argument was not put to the judge.

18. He submitted that sufficient weight was not given to essential aspects of this case. He relied on the decision in SS (Congo) which held that there is no reason why entry clearance should not succeed outside the Immigration Rules if there are compelling circumstances. He submitted that pulling all the strands together, the circumstances of this family are compelling.

19. Mr Bramble relied on the respondent’s Rule 24 response. His argument was that the grounds submitted on behalf of the appellant were merely a disagreement with the judge’s decision. Going through the determination he submitted that the judge considered the facts properly, considered whether they were compelling circumstances and came to a decision that was reasonably open to him.

Findings

20. I find that because Mr. René failed to put to the judge the argument about there being a lacuna in the Immigration Rules, the judge could not have erred in failing to consider the issue.

21. I was not persuaded with the argument that the judge failed to pull together all the strands when considering whether the circumstances in this case were compelling. From [8] to [16] the judge set out the facts under the heading “My Findings”. Indeed, none of those facts has been challenged. At [17] the judge noted Mr René’s argument that there were compelling circumstances in this case, namely, the concerns over Harvey and the need to send him to the UK and Trevor’s evident ill health and the fact that he appears to be unable to travel to see his family in Nigeria. The judge proceeded to consider the argument and the concerns raised by Mr Rene, which that led to his conclusions at [18].

22. It was not disputed that family life existed between Trevor, the appellant and the two British children before Trevor travelled to the UK in September 2012 for medical reasons. Whether Trevor intended to return to Nigeria after his visit was not material. The fact is that due to his medical condition, he is unlikely to travel to Nigeria in the foreseeable future. At [18] the judge considered the circumstances of Trevor and Harvey. He also considered the best interests of the children. I find that the judge’s failure to consider third party support does not materially affect this decision. I find that the judge’s conclusions at [18] were open to him on the evidence. His discloses no error of law.

No anonymity direction is made.

Signed Date: 24 April 2017

Deputy Upper Tribunal Judge Eshun