Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-001378

First-tier Tribunal No: HU/52470/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

30th April 2025

Before

UPPER TRIBUNAL JUDGE O’BRIEN
and
DEPUTY UPPER TRIBUNAL JUDGE FARRELLY

Between

ADEYINKA ABIBAT ADENIJI-ADEL
(NO ANONYMITY DIRECTION MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Mr H Ndubuisi of Drummond Miller Solicitors.
For the Respondent: Mr Andrew Mullen, Senior Home Office Presenting Officer

Heard at Edinburgh Tribunal Centre on 13 February 2025
Decision and Reasons
Introduction
1. We are remaking the decision in this appeal following the setting aside of the decision of the First-tier Tribunal with no facts formally preserved.

2. The appellant is a Nigerian national born in 1982. She came to the United Kingdom in 2011 on a student visa. She was educated to degree level in Nigeria. That visa expired in 2012 and she overstayed. She met her sponsor, Mr Henderson, a British national, in August 2019. He was born in 1974. A relationship developed. They married in August 2020 and are living together in Livingston, Scotland. Mr Henderson had previously been in a relationship and has a daughter, M. Mother and daughter lived together in Perth, Scotland. However, M’s mother died on the 26th of December 2024.

3. The appellant applied for leave to remain as a partner. Her application was considered under Appendix FM and Article 8 and was refused by the respondent. The reason was her lack of immigration status.

4. On appeal, the refusal was maintained by First tier Tribunal Judge Clapham in a determination dated the 9th of February 2022. Permission to appeal to the Upper Tribunal was refused by both tribunals. It was subsequently granted by the Vice President of the Upper Tribunal following a joint minute of the Court of Session.

5. Following a hearing the 8th of October 2024, in a decision promulgated on the 20th of December 2024, Upper Tribunal Judge Rintoul found a material error of law in the decision of First tier Tribunal Judge Clapham and set it aside, with the decision to be remade in the Upper Tribunal. Upper Tribunal Judge Rintoul found First tier Tribunal Judge Clapham had compartmentalised matters rather than considered matters cumulatively. Related to this, he found the First tier Judge did not give proper consideration to the case of Chikwamba v SSHD [2008] UKHL 40.

6. By order dated the 20th of December 2024, Principal Resident Judge Blum of the Upper Tribunal decided it was not practical for the original tribunal to complete the hearing without undue delay and permitted the appeal to be heard by a differently constituted tribunal.

7. The skeleton argument on behalf of the appellant submitted that the following issues arise:

(a) Is the decision disproportionate to the family’s Article 8 rights?
(b) Are there insurmountable obstacles as meant within EX1 of appendix FM?
(c) Are there exceptional circumstances whereby a refusal would result in unjustifiably harsh consequences?
(d) In relation to section 117 B of the Immigration Act 2014 does the public interest in immigration control justify the appellant’s removal?

8. The background facts we take from the oral evidence and the papers submitted. There is little in dispute about the background.

9. The appellant and her sponsor live in Livingston, approximately 1 hour's drive from the sponsor’s daughter, in Perth. His daughter has spina bifida and requires a wheelchair. We do not have details of any current care plan but understand she receives disability-related social security benefits. The sponsor earns around £26,000 per annum. The appellant was offered one cycle of IVF treatment in October 2022.

10. The appellant attended and adopted her statement. In accordance with Tribunal practice the sponsor remained outside. In cross-examination, she confirmed she was not involved in the care of M, whom we will refer to as her stepdaughter. She said that she and her sponsor had been visiting two or three times a week, depending on her sponsor’s shift. This currently was reduced to around four times a month. She said that her stepdaughter was in receipt of Social Security benefits but was not sure of the details. She said she had no immediate family left in Nigeria, all her siblings living in the United Kingdom. Her mother lives in Canada with her sister, Her younger brother was at university. She has four aunts in Nigeria but does not stay connected and suggested there was a falling out after her father died.

11. We then heard from her sponsor who adopted his statement. He said he was not aware at the outset that his partner had overstayed but became aware after they started going out together. He said his daughter is now 24 years of age. He had been separated from her mother since she was one year old. He indicated that she was in receipt of Social Security health related benefits. He confirmed he had never been to Nigeria.

12. He indicated that the appellant's mother continued to live in Nigeria which was inconsistent with the appellant's evidence of her being in Canada. He confirmed the appellant had two brothers, one of whom was at university here and the other was a social worker.

13. He also advised of his caring responsibilities towards his widowed mother. She has respiratory issues and was recently hospitalised and then discharged. He states that he takes it in turns with his three siblings to help care for her. She lives independently but has been unwell and has carers calling. He has been accommodated by his employer so that he can visit.

14. In submissions, the presenting officer, Mr Mullen, continued to rely on the refusal letter. He suggested the appellant could return to Nigeria and then apply for entry to the United Kingdom. He highlighted the absence of evidence from any social worker or local authority to indicate a need for her presence here in relation to her stepdaughter. He pointed out that the appellant’s sponsor had not lived with his daughter since she was very young and was not clear about her finances. He submitted that insurmountable obstacles had not been demonstrated.

15. In response, the appellant’s representative submitted there were insurmountable obstacles given the overall circumstances. M had recently been bereaved following the death of her mother. He submitted it would be very difficult for the sponsor to obtain employment in Nigeria. He also said that the appellant was receiving IVF treatment, preparations for the next round of which were at an advanced stage. He submitted the cumulative effect was such that the decision was disproportionate.

16. Mr Ndubuisi also submitted that the appellant’s application should not have been refused on the basis of her immigration status. He asserted that the respondent had, at the time, published a concession that those who would ordinarily have to make an out-of-country application would be allowed to make their application from within the United Kingdom. This was not a matter raised in his skeleton argument and he did not provide a copy of the concession in question.

Consideration

17. We deal first with Mr Ndubuisi’s argument that the appellant’s immigration status was the subject of an extant concession by the respondent. He did not provide us with a copy of the concession he relies on. We are aware that the COVID-19 pandemic was unprecedented and led to closure of borders across the world. The following is evident from the respondent’s website and links to archived material from the time in question.

18. The respondent acknowledged individual travel plans may have been affected by circumstances outside the person's control. Discretionary concessions outside the rules were made and then by para 39E and later para 39E(5)in the rules. The concession extended permission for individuals whose leave would otherwise have expired during the period the 24th of January 2020 to the 31st of July 2020. There was then a grace period covering the 1st of August to the 31st of August 2020 giving individuals an opportunity to make arrangements to leave. There was then a further concession in light of ongoing travel disruption, known as the exceptional assurance concession covering the 1st of September 2020 to the 28th of February 2023. The intent was that during this short period the individual would not be regarded as an overstayer or suffer any detriment in future applications relating to that time. None of these circumstances are applicable to the appellant’s case. She had been an overstayer from 2012 and was not granted an exceptional assurance.

19. We are unpersuaded that there existed any concession whereby pre-existing overstayers were allowed to make in-country applications for leave to remain as spouses rather than return when able to their home countries to make entry clearance applications.

20. It has to be remembered that the appellant in overstaying her student visa knew she had no right to remain here. Similarly, her husband in marrying her was aware of this. Section 117B provides that immigration control is in the public interest.

21. It is open to the appellant to make a fee based application for entry clearance and thus regularise the position. The difficulty with this is that unless her husband joins her in Nigeria there will be a period of separation. Furthermore, the financial threshold has now been increased. The appellant does not wish to take this route but is seeking to argue that she is entitled to remain here on the basis of her existing family life.

22. The skeleton argument on behalf of the appellant seeks to argue that refusal is disproportionate on the basis there are insurmountable obstacles in terms of EX1 of appendix FM, and there are exceptional circumstances resulting in on justifiably harsh consequences for the appellant (GEN 3.2.) or other related parties. It is also suggested that the public interest in section 117B of the Immigration Act 2014 does not require removal. The skeleton argument is based upon the appellant's sponsor having a very strong relationship with M, and that he is involved in her care and his involvement has increased following the recent death of her mother. Reference is made to paragraph 48 of the decision of GM (Sri Lanka)v SSHD [2019] EWCA 1630 which guided that the insurmountable obstacle test had to be applied in a practical and realistic sense . It is submitted that the sponsor cannot leave and go to Nigeria because of M and also his mother who has health issues.

23. The decision of the Supreme Court in Agyarko [2017] UKSC 11 is germane as it deals with the factual situation, as is the case here, of a foreign national who had been residing unlawfully in the United Kingdom and had formed a relationship with a British citizen during that time. The decision focused upon para EX1(b) of Appendix FM, the question of insurmountable obstacles to family life with the partner outside the United Kingdom and the notion of exceptional circumstances. At paragraph 43, the Supreme Court referred to the European jurisprudence whereby insurmountable obstacles is to be understood in a practical and realistic sense rather than something which makes it literally impossible for the family to live together in the country of origin of the non-national. The domestic legislation further defines insurmountable obstacles at EX1(b) as meaning very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the United Kingdom and which could not be overcome or would entail very serious hardship for the applicant or their partner. The Rules are meant to reflect the responsible Ministers’ assessment of the weight to be attached to the competing factors when striking a fair balance under Article 8. Courts are obliged to take the respondent’s policy into account and attach considerable weight to it. The respondent's view is that the public interest is in the removal of individuals here in breach of immigration laws save for exceptional circumstances and faced with insurmountable obstacles to family life continuing outside the United Kingdom.

24. The evidence indicates to us that the sponsor has an input in the life of his daughter M but this is limited to several visits a month. On those occasions he would take her to recreational facilities. He does not live with her. We have no reason to doubt the positive benefit for both the sponsor and his daughter of this involvement. However, M, is able to live independently. The appellant appears to have less contact with her. It was our conclusion that if the appellant returned to Nigeria then this would not be a major negative factor for M. We accept the absence of her father would be more of a loss, but would not reach the threshold of unjustifiable harshness. Nevertheless, this presupposes that he moved to Nigeria.

25. We accept a move to Nigeria would be a major upheaval for the sponsor. He would be going to a country with which he is not familiar and with which he would need to seek employment. It would seriously disrupt his contact with his daughter. However, he would have the support of his wife. Nothing advanced on the couple’s behalf amounts to insurmountable obstacles.

26. However, this is not the only option. The appellant could return to Nigeria and make the proper application for entry clearance. This would not mean her relationship with the sponsor is severed. Rather, there will be a period when the proofs for the application must be assembled and a decision taken by the respondent. The increase in the financial threshold for the sponsor is not a permanent impediment. He is in stable employment and we have heard nothing to suggest it would be impossible for him to either extend his hours or seek additional employment. The appellant and her sponsor would be deprived of each other’s company for a time. Nevertheless, the appellant is returning to a country with which she is familiar and where she has if not her mother then extended family. She is educated to degree level. She enjoys good health.

27. It is our conclusion that the respondent's decision is proportionate to the interests of immigration control. In considering the issue of proportionality we have sought to have regard to all of the considerations raised, factoring in the appellant's relationship with her sponsor, her sponsor’s relationship with her and with his family here, particularly his daughter. We have had regard to the circumstances of all the parties affected. Our intention was to look at all these factors cumulatively. We do not see insurmountable obstacles to the family life continuing if they go together or resuming here at a point in the near future if an application for settlement is successful. We do not find the decision refusing her present application leading to unjustifiably harsh consequences for any of the affected individuals. Again, it must be borne in mind the respondent is charged with immigration control and the appellant has been here with no right.

28. The skeleton argument refers to the appellant being a waiting list for surgery linked to her IVF treatment. It states this would be disrupted if she had to go to Nigeria. However, this procedure is at an early stage with the focus being upon weight loss. We have not received information that such treatment is unavailable in Nigeria. We have been given no date as to when the proposed surgery associated with the IVF treatment will take place.

29. Mr H Ndubuisi did not in the end advance any Chickwamba argument, instead submitting that the increased financial threshold made it unlikely that an entry clearance application would be successful. The argument would not in any event have changed our view on the proportionality of the decision and the public interest in immigration control. The facts here are different. It is not pedantic or perverse to expect the appellant to return and make the proper application. It cannot be said such an application is certain to be granted. For instance, the financial requirement will need to be satisfied. In our view this is a reasonable step and which reinforces the notion of immigration control.

30. We do not see any other basis upon which the appellant can remain. Private life has not been argued but in any event we bear in mind the little weight considerations in section 117B.

Decision

1. The First-tier Tribunal decision involved the making of an error of law.
2. That decision is remade and the appeal is dismissed.

F J Farrelly
Deputy Upper Tribunal Judge Farrelly

The Upper Tribunal
Immigration and Asylum Chamber

24 April 2025
Annex

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-001378
First-tier Tribunal No: HU/52470/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
20 December 2024

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between
ADEYINKA ABIBAT ADENIJI-ADELE
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr I Halliday, Counsel
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

Heard at Edinburgh on 8 October 2024

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Clapham promulgated on 9 February 2022 dismissing her appeal against a decision of the Secretary of State to refuse her leave to remain on the basis of her relationship with Mr Mark Henderson, the sponsor. The application for permission to appeal made first to the First-tier Tribunal and then renewed to the Upper Tribunal was such that permission was refused at both stages but that was reduced by the Court of Session for the reasons set out in the Joint Minute. Subsequent to that the Vice President of the Upper Tribunal granted permission to appeal.
2. The factual background to the case is set out adequately in the decision of Judge Clapham. Essentially the appellant is an overstayer and is now in a relationship with Mr Henderson, a British citizen. The application for leave was refused by the Secretary of State on the basis that the requirements of the Rules were not met given that the appellant had overstayed for a substantive period and the Secretary of State was not satisfied that EX.1 of Appendix FM was met. It was however accepted the marriage is genuine and subsisting. Mr Henderson has a daughter from a previous relationship who is disabled and who lives not with him but with her mother and in his witness statement at paragraph 10 and also in the appellant’s witness statement at paragraph 10 evidence is given that there is a close relationship between the sponsor and the adult daughter and that this would make it difficult for him to leave the United Kingdom to stay elsewhere. The judge was not satisfied that the appellant met the requirements of the Immigration Rules, concluding that there were not insurmountable obstacles to family life and that thus paragraph EX.1 was not met. The judge then went on to consider at paragraph 25 directing herself in line with Agyarko as to whether there would be serious hardship for the appellant or her partner. The judge then went on to deal with the relationship with the daughter at paragraph 26 and then went on to deal with the factors relative to the appellant herself at paragraphs 27 onwards dealing with the submission at paragraph 31 that this is a case to which the principles set out in the case of Chikwamba apply before considering whether at paragraph 34 there were significant obstacles to integration. She then dismissed the appeal.
3. Permission was sought on two grounds. First, that the judge had failed to take a proper approach to the appeal in that she had not dealt with the factors for and against the appellant on a cumulative basis considering them in effect singularly and it is averred failing to do so in a properly structured way. The second ground of appeal was a failure properly to apply the decision in Chikwamba, that is not a ground which is pursued to any great extent now. A further ground of appeal, that is a failure to consider the sponsor’s daughter’s rights, is now put forward. Although that was not a ground of appeal made to the Upper Tribunal I was satisfied at the outset of the hearing that it would be in the interest of justice to permit the appellant to amend the grounds to include that given that this is a point which had been made to the Court of Session in the petition seeking reduction of the refusal of leave to remain and forms a part of the Joint Minute.
4. I deal with the new ground first principally because I am satisfied that that does indicate a failure properly to consider the issues in the case. It is clear from the appellant’s evidence that her husband had a relationship with the daughter. While the judge does to some extent deal with this situation at paragraph 26 of the decision, I am satisfied that the focus here is not properly on the effect there would be on her and that the focus of the enquiry is primarily on the life that exists between the appellant and the sponsor. There is a distinction to be made between EX.1 and the wider consideration in that EX.1 is focused on whether family life exists between the appellant and sponsor, not on the effect on other members of the family.
5. To a significant extent the submissions made on the way in which the daughter was dealt with raise issues similar to ground 1 in that there is I accept a degree of compartmentalisation of the various different factors which appear to have been treated in isolation rather than cumulatively as the law requires. Whilst it is incumbent on an appellate tribunal not to interfere with the decision of a lower Tribunal which had the advantage of hearing all the evidence and which can be expected to have directed itself properly as to law, there are sufficient indicators here in this decision that the judge did not do so, firstly and most importantly with respect to the position of the sponsor’s daughter and the effect that there would be on her of any separation and in separating out the various different factors for and against the appellant.
6. I would add also that in addition to failing to deal with all the factors cumulatively the judge appears although having directed herself at paragraph 26 that there is a distinction to be made between a permanent removal and a temporary removal whereby the appellant could return to Nigeria and apply for entry clearance, this does not appear to have been something which was factored into account in her decision in respect of the position of the appellant as regards the other factors. To that extent the issue raised in Chikwamba has not properly been factored in although I do not consider that it could on the facts of this case be said that this is a case that falls squarely within the principles set out in Chikwamba given not least the appellant’s lengthy overstaying.
7. However, I am satisfied taking these matters cumulatively that the decision of the First-tier Tribunal did involve the making of an error of law and I set it aside. There does not appear to be any challenge to the finding that this is not a case to which EX.1 applies and in the circumstances I am satisfied it would be appropriate to retain the decision to be re-made in the Upper Tribunal.
Notice of Decision
(1) The decision of the First-tier Tribunal involved the making of an error of law and I set it aside. (2) I direct that the appeal be re-made in the Upper Tribunal on a date to be fixed with a time estimate of 1 hour.
(3) If either party wishes to adduce any further evidence, this must be served in electronic format on the other party and the Upper Tribunal at least 10 working days before the next hearing, accompanied by an application made pursuant to rule 15 (2A) of the Tribunals Procedure (Upper Tribunal) Rules 2008.
(4) If the appellant wishes to adduce further oral evidence, she must provide a witness statement capable of standing as evidence in chief for each witness to be called, to be served in accordance with direction [2] above, and must state if an interpreter is required, if so in which language.

Signed Date: 6 December 2024
Jeremy K H Rintoul
Judge of the Upper Tribunal