Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/02176/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th June, 2016
Given extempore
Signed 27th June, 2016
On 11th August, 2016

Before

Upper Tribunal Judge Chalkley

Between

Entry Clearance Officer - ukvs SHEFFIELD
Appellant
and

John Chinedu Nnadi
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr P Duffy, Home Office Presenting Officer
For the Respondent: Mr E Eluwa, Solicitor, Finsbury Law Solicitors

DECISION AND REASONS

1. The respondent is a national of Nigeria who was born on 9th November, 1996. He is now aged 19 years. At the date of his application to the respondent he was 17 years. The respondent appealed the decision of the appellant dated 15th October, 2014 refusing to grant entry clearance to the respondent to join his sister in the United Kingdom under paragraph 297 of Statement of Changes in Immigration Rules HC 395 (as amended).

2. The appeal was heard by First-tier Tribunal Judge Norton-Taylor at Richmond on 1st December, 2015. He makes it clear in the determination that the appellant refused the respondent's application on two bases. The first was that the sponsor did not have sole responsibility for the appellant's upbringing and secondly that there were no serious or compelling family or other considerations.

3. The judge quite properly directed himself on the law at paragraph 6 of the determination, where he set out paragraph 297 of the Immigration Rules and at paragraph 7. He referred to the Tribunal decision in Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 0088. He directed himself on the burden and standard of proof at paragraph 8 and then considered the evidence and submissions before him and made findings. The findings which I believe are the most relevant are those at paragraphs 20 to 28. I am going to set them out below because I think that they are relevant.

"20. Thus, I find that the appellant was orphaned in 2012.

21. I find that he has lived with three sets of cousins since the death of his mother in 2012. The evidence on this is consistent and plausible. There has been no suggestion that he has been abused or physically neglected, or that he has been in danger of being thrown out into the street. In that sense, there has been no embellishment of the claim. I find that he has been able to complete his education.

22. In the light of the above, I find that there were no serious and compelling 'other considerations' such as to render exclusion from the UK undesirable.

23. Having said that, I accept the evidence of the [respondent] and his sister that the living arrangements have resulted in him being forced to endure a transitory and unstable situation, a situation which followed on from the death of his mother when he was just 15. I accept the evidence of the [respondent] himself that this state of affairs led to an inability on his part to be able to properly come to terms with his loss (a loss that would undoubtedly have been compounded by the additional fact that he then became an orphan). I accept the evidence that his emotional needs were not being met by the various households to which he was moved. Importantly, these needs were, I find, significantly beyond those of an 'average' teenage boy: the [respondent] had become an orphan in the midst of a crucial stage of his development. That is the relevant context in which to assess the claim.

24. I find that the [respondent] was unable to live with his sisters in the North of Nigeria. I accept that the sponsor's evidence on this point, namely that the husband of the older sister simply would not allow an additional relative to join him.

25. In respect of the sponsor, there has never been any suggestion from the [appellant] that she was and is unable to provide a loving and secure home for the [respondent]. There is ample evidence of accommodation and maintenance in the papers before me, and none of this has been challenged by Ms Ahmad.

26. There has been no suggestion from the [appellant] that the sponsor could or should go and live in Nigeria. She is a British citizen, with three British children and a husband here. I find that she could not have emigrated.

27. Bringing the foregoing together, I assess the [respondent's] best interests as having lain in being a stable, emotional secure and supportive home environment in which he could not only move forward in his life, but also to properly come to terms with the death of his parents. He was not, at the relevant time, in such an environment. I do take into account the fact that any move to the United Kingdom would be disruptive to an extent. The [respondent] has obviously lived his life in Nigeria. However, the very sound decision of the sponsor not to seek entry clearance while the [respondent] was undertaking studies will result in less disruption than otherwise might have been the case. Overall, his best interests were best served by joining the sponsor in this country.

28. Having regard to Mundeba, in my view the family considerations in this case are 'serious', in that they go well beyond a mere desire for the [respondent] to live with his sister in the United Kingdom, based upon normal and understandable familial ties. The relevant considerations, which include the [respondent's] losses, his living circumstances, the lack of emotional support and his best interests, are 'compelling' in that they are persuasive and powerful, even from an objective viewpoint. When the two facets of the test are combined, the facts of this case are sufficient to render the exclusion of the [respondent] from the United Kingdom undesirable."

4. The judge allowed the respondent's appeal. The appellant has obtained permission to challenge the decision on the basis that it was not open to the judge to allow the appeal under paragraph 297(i)(f), which he does at paragraph 29, when he finds at paragraph 22 that there are no serious and compelling 'other considerations' such as to render exclusion from the UK undesirable.

5. Before me today Mr Duffy suggested that the judge has simply contradicted himself. He thought that possibly what the judge was thinking of at paragraph 22 was the question of sole responsibility but that is conjecture on his part. The respondent's representative accepted that there was a contradiction and told me that the determination could not stand. I retired briefly and on resuming the hearing gave this extempore determination.

6. It is necessary in cases involving paragraph 297(i)(f) that the appeal be considered on the basis of what is the best interest for the child. In Mundeba the Tribunal considered in detail the requirements of the Immigration Rules and adopted an inclusive approach to the "exclusion undesirable" test. At paragraph 34 it said:

"In our view, 'serious' means that there needs to be more than the parties simply desiring a state of affairs to obtain. 'Compelling' in the context of paragraph 297(i)(f) indicates that considerations that are persuasive and powerful. 'Serious' read with 'compelling' together indicate that the family or other considerations render the exclusion of the child from the United Kingdom undesirable. The analysis is one of degree and kind. Such an interpretation sets a high threshold that excludes cases where, without more, it is simply the wish of parties to be together however natural that ambition that may be."

7. At paragraph 36 it said this:

"The exercise of the duty by the Entry Clearance Officer to assess the application under the Immigration Rules as to whether there are family or other considerations making the child's exclusion undesirable inevitably involves an assessment of what the child's welfare and best interests require."

As a starting point of course the best interests of any child are usually best served by the child being with both or at least one of their parents and of course continuity of residence is another factor. A change in the place of a residence where a child has grown up for a number of years, when socially aware is also important.

8. I believe that looking at paragraphs 21 and 22 and, importantly, reading them in context, it is quite clear that what the judge intended was to say was that in the light of what he had said at paragraph 21 there were no serious and compelling other considerations, but he then went on to apply Mundeba and examined what were the best interests of the child. He did precisely what was required of any judge in those circumstances; he look at the issue from the child's perspective. In my view, what he has said at paragraphs 22 to 28 cannot be faulted. I believe he was entitled to conclude as he did. There was nothing at all inconsistent in what he said at paragraph 22 and what he said at paragraph 27. The appellant's challenge only quoted part of paragraph 22, but it is necessary not simply to look at individual paragraphs, but to read the determination as a whole and to read individual paragraphs in context.

Notice of Decision

For all these reasons I find that the judge has not erred in law and I uphold his decision.

No anonymity direction is made.

Richard Chalkley
Upper Tribunal Judge Chalkley

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make a fee award of any fee which has been paid or may be payable (adjusted where full award not justified) for the following reason. The respondent was entitled to have his entry clearance application allowed.

Richard Chalkley
Upper Tribunal Judge Chalkley