Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/09247/2015
OA/09251/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 April 2017
On 24 April 2017

Before
UPPER TRIBUNAL JUDGE FINCH

Between
BOLUWATIFE BISOLA ADESOYA
OPETOSIMI BUKOLA ADESOYA
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms U. Dirie of counsel
For the Respondent: Ms A. Fijiwala, Home Office Presenting Officer

DECISION AND REASONS
BACKGROUND TO THE APPEAL
1. The 1st Appellant, who was born on 8 October 2001, is a national of Nigeria. The 2nd Appellant, who was born on 12 July 1998, is also a national of Nigeria and is the 1st Appellant’s sister. They applied for entry clearance to join their father in the United Kingdom. He was born in Nigeria on 11 February 1960 but entered the United Kingdom on 7 July 2005 as a Highly Skilled Migrant and was granted indefinite leave to remain here in 2010. He then naturalised as a British citizen in 2016.
3. Their applications were refused on 8 May 2015 and they appealed on 12 June 2015. The Entry Clearance Manager maintained these decisions on 9 September 2015. Their appeals were heard by First-tier Tribunal Judge Moore who dismissed their appeals under the Immigration Rules in a determination promulgated on 3 August 2016. They sought permission to appeal and this was granted by First-tier Tribunal Judge Osborne on 25 January 2017. the Respondent filed a Rule 24 statement on 9 February 2017. She submitted that the First-tier Tribunal Judge had directed himself appropriately and that the content of paragraphs 26 – 33 of the decision and reasons addressed the circumstances which related to the best interests of the child.
ERROR OF LAW HEARING
4. Counsel for the Appellant said that she relied on the grounds of appeal and noted that permission to appeal had been granted on all grounds. She also noted that the First-tier Tribunal Judge had failed to take into account that there was credible medical evidence to indicate that the Appellants’ grandmother was no longer fit enough to care for them in the form of evidence from Lagos State Government Gbagada Genera Hospital in India and letters from their grandmother herself. She added that this evidence had not been challenged by the Respondent and no reasons had been provided for giving no weight to this evidence.
5. Counsel for the Appellant also submitted that, although First-tier Tribunal Judge Moore had found in paragraph 34 of his decision and reasons that he was satisfied that the Appellants had not established that they were entitled to leave under paragraph 297(i)(f) of the Immigration Rules, he had not provided any reasons why the children were not entitled to leave under paragraph 297(i)(f) as opposed to paragraph 297(i)(e). She also submitted that there was no reference anywhere in the decision to the Appellants’ best interests and referred to the case of Mundeba (s.55 and para 297(i)(f) [2013] UKUT 00088 (IAC). In addition, she submitted that the First-tier Tribunal Judge’s findings in relation to whether the Appellants’ father paid their school fees was contradictory.
6. The Home Office Presenting Officer replied and submitted that the First-tier Tribunal Judge had referred to the evidence from the Appellants’ grandmother in paragraph 18 of his decision and reasons. She also noted that, even though it had been said in 2013 that the Appellants’ grandmother was not fit enough to care for them, they were still living in her home in 2017. She also submitted that the First-tier Tribunal Judge’s decision read, as a whole, considered the elements needed to establish an entitlement under paragraph 297(i)(f) and also considered their best interests, as the First-tier Tribunal Judge had considered the care given to the Appellants by their grandmother.
7. In response counsel for the Appellants stressed that paragraph 297(i)(f) does not require the Appellants to establish that their father had had sole responsibility for them. She also noted that the First-tier Tribunal Judge was required to consider the Appellants’ best interests and looking at whether their grandmother was capable of providing them with care did not absolve him from considering their best interests.
DECISION
8. Paragraph 297 of the Immigration Rules states that:
“The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:
(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
(e) one parent is present and settled in the United Kingdom …and has had sole responsibility for the child’s upbringing; or
(f) one parent or a relative is present and settled in the United Kingdom ….and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care;
9. It is clear from the wording of paragraph 297 that (e) and (f) contain separate and distinct scenarios which may lead to a child being admitted to join a settled parent in the United Kingdom. There is nothing on the face of the First-tier Tribunal Judge’s decision and reasons which indicates that he had given separate consideration to paragraph 297(i)(f). He did not consider whether the Appellants’ father had made suitable arrangements for their care here and did not consider whether there were serious and compelling family or other considerations which made their exclusion undesirable. In Mundeba the Upper Tribunal found that:
“Family considerations require an evaluation of the child’s welfare including emotional needs. ‘Other considerations’ come in to play where there are other aspects of a child’s life that are serious and compelling, for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social background and developmental history and will involve inquiry as to whether:-
(a) there is evidence of neglect or abuse;
(b) there are unmet needs that should be catered for;
(c) there are stable arrangements for the child’s physical care.
10. First-tier Tribunal Judge Moore had not addressed such issues and this in itself amounted to an error of law in the manner in which he approached the Appellants’ potential entitlement to indefinite leave to enter under the Immigration Rules. In my view this was a material error as there were elements of the evidence which could have indicated that through no fault of her own the Appellants’ grandmother was “neglecting” them. In addition, her age, which was 70 in 2013, and the fact that she suffered from both diabetes and hypertension, which had required hospitalisation also indicated that this may become more of a problem over time and that there was an element of instability in the arrangements being made for their physical care.
11. Furthermore, the reasons for refusal letter and the grounds of appeal both refer to section 55 of the Borders, Citizenship and Immigration Act 2009 but First-tier Tribunal Judge Moore made no reference to section 55 or the best interests principle it in his decision and reasons.
12. I have reminded myself that in Mundeba the Upper Tribunal also held that:
i) The exercise of the duty by an Entry Clearance Officer to assess an 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.
ii) “Where an immigration decision engages Article 8 rights, due regard must be had to the UN Convention on the Rights of the Child. An entry clearance decision for the admission of a child under 18 is “an action concerning…undertaken by…administrative authorities and so by Article 3 “the best interests of the child shall be a primary consideration”.
iii) Although the statutory duty under s. 55 of the Borders, Citizenship and Immigration Act 2009 only applies to children within the UK, the broader duty doubtless explains why the Secretary of State’s IDI invites Entry Clearance Officers to consider the statutory guidance issued under s.55”.
13. The Rule 24 reply and the Home Office Presenting Officer argued that explicit reference to the best interests principle was not necessary and it could be inferred from the totality of the First-tier Tribunal Judge’s decision and reasons that he had taken the principle into account. However, I was not taken to any particular parts of the decision in support of this proposition. At best, it was submitted that, as the First-tier Tribunal Judge had considered whether their grandmother was able to “care” for them, the Appellants’ best interests had been addressed.
14. The need to address a child’s best interests was discussed in detail in R (on the application of MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10. Lady Hale and Lord Carnworth confirmed at paragraph 91 of the judgment that “although section 55 is in terms directed to children in the UK, the Secretary of State has accepted that the same approach should be applied to the welfare of children elsewhere”.
15. In paragraph 92 they went on to hold that “the duty imposed by section 55 of the 20090 Act stands on its own feet as a statutory requirement apart from the HRA or the Convention”. This statement was made in the context of a case involving Appendix FM to the Immigration Rules but its analysis applies equally to other parts of the Immigration Rules.
16. Furthermore, the basket of rights accorded to a child by Article 3 of the UN Convention on the Rights of the Child is not limited to his or her welfare needs but includes the need to take into account a child’s developmental needs which are likely to be adversely affected by any physical or emotional neglect. They also include the need to take into account the child’s own wishes and feelings. None of this was addressed in the decision and reasons when considering whether the Appellants were entitled to leave under paragraph 297(i)(e) or (f).
17. For these reasons given above, I am satisfied that First-tier Tribunal Judge Moore did make material errors of law in his decision and reasons.
DECISION
(1) The Respondent’s appeal is allowed.
(2) The decision by First-tier Tribunal Judge Moore is set aside.
(3) The appeal is remitted to the First-tier Tribunal to be heard by a First-tier Tribunal Judge other than First-tier Tribunal Judge Moore.

Nadine Finch

Signed Date 11 April 2017

Upper Tribunal Judge Finch