The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/04309/2012


Heard at : Field House
Determination Promulgated
On : 29th July 2013
On : 30th July 2013


Upper Tribunal Judge McKee


babatunde akinkunmi bamidele


Entry Clearance Officer, Lagos



For the Respondent: Lady G. Tetteh, instructed by Hedva Immigration Advice UK
For the Appellant: Miss Alice Holmes of the Specialist Appeals Team


1. Mr Bamidele, who is the respondent before the Upper Tribunal, has been trying for a number of years to gain admission to the United Kingdom as the husband of Olubukola Oyewole ('the sponsor'), a British citizen of Nigerian origin. The couple now have two children, British citizens, aged 6 and 3 years old respectively at the date of the hearing before the First-tier Tribunal on 22nd May 2013, but some 16 months younger at the date of decision - a fact which lies at the heart of the current appeal.

2. After two previous refusals, Mr Bamidele was refused entry clearance again on 6th January 2012, and his appeal to the First-tier Tribunal was dismissed by Judge P.J.M. Hollingworth after a hearing on 30th November 2012. An appeal to the Upper Tribunal succeeded in part, in that it was remitted to the First-tier Tribunal on Article 8 grounds only, for reasons set out by Upper Tribunal Judge King in a 'Decision & Directions' dated 8th April 2013. Judge Stokes allowed the appeal on this basis, and this time it was the Entry Clearance Officer who sought permission to appeal to the Upper Tribunal.

3. Judge Brunnen granted permission, although only one of the grounds struck him as amounting to more than disagreement with Judge Stokes' conclusions, and the matter thus came before me, initially to decide whether Judge Stokes had made a material error of law, requiring her determination to be set aside. Very sensibly, Miss Holmes did not adopt the grounds which had failed to impress Judge Brunnen. But she did advance the argument that, in weighing the factors on Mr Bamidele's side of the Article 8 balance, Judge Stokes had taken account of post-decision matters which were not among "the circumstances appertaining at the time of the decision", and which were therefore excluded from consideration by section 85A(2) of the Nationality, Immigration and Asylum Act 2002.

4. These forbidden factors were the development of the two children since the date of decision in January 2012, and the nursing course which the sponsor wished to complete in the UK. Judge Stokes numbered these factors among the reasons why she did not think it reasonable to expect the sponsor and the children to relocate to Nigeria in order to enjoy family life with their husband/ father. In response, Lady G. Tetteh argued that there was no real difference in the circumstances obtaining at the date of decision and at the date of hearing, as far as the children's development and the sponsor's studies were concerned. The children had been born in the UK and were simply continuing their lives in the country of their birth, while it so happened that the date of decision fell during an interlude in the sponsor's nursing studies, which she had been carrying on before the date of decision and had resumed after that date.


5. As explained by Ouseley J in DR (Morocco)* [2005] UKIAT 38, evidence of what happened after the refusal of entry clearance is not inadmissible if it sheds light on the circumstances obtaining at the date of that refusal. It might be said that what the children have been doing since January 2012 (going to primary school or nursery school) formed part of their circumstances at that time, such educational progression being an almost inevitable consequence of being a child in England. But if it was an error of law to take account of this progression, it was certainly not a material error. Judge Stokes regarded the fact that the children "are British citizens and were born and have lived all their lives here" as "of particular importance." She cited ZH (Tanzania) for this proposition, and was perfectly entitled to reach the conclusion that the best interests of the children would be served by being brought up in the United Kingdom. Although the judge did not cite Zambrano, it is clearly of relevance that the children are also citizens of the European Union, and entitled to be brought up in the territory of the Union.

6. It cannot be maintained that the judge gave disproportionate weight to the best interests of the children in this case. That the sponsor's nursing studies would be resumed was perhaps not something which could be numbered among the circumstances obtaining at the date of decision, but it is not something which seriously detracts from the overall soundness of the First-tier determination. It is, in my respectful view, a good determination, which takes account of the relevant factors in performing the Article 8 balancing exercise and gives adequate reasons for coming down on one side rather than the other. The question of proportionality was a matter for assessment by the judge. Her conclusion was neither irrational nor in any other way defective in public law terms.


The Entry Clearance Officer's appeal is dismissed, and the determination of the First-tier Tribunal therefore stands.

Richard McKee
Judge of the Upper Tribunal
29th July 2013