Tribunal decisions

The decision

IAC-FH-CK/SC-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2023-005521
First-tier Tribunal Nos: HU/54887/2023
LH/05911/2023

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8th April 2025

07th May 2025

Before

UPPER TRIBUNAL JUDGE KEITH

Between

INNOCENT OGUEJIOFOR EGBO
(ANONYMITY DIRECTION not MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr P Georget, instructed by Portway Solicitors
For the Respondent: Mr S Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the remaking of the decision in the appellant’s appeal against the respondent’s refusal of his human rights claim.
2. The context of this decision is that I had previously decided that a decision of a First-tier Tribunal, following a hearing on 7th September 2023, had contained an error of law. My error of law decision is attached as an annex to these reasons, together with the preserved findings. The Appellant had claimed that his removal from the UK would breach his rights under Article 3 ECHR, in the context of his having had cancer from which he was now in remission. That was rejected and I preserved that decision. There is therefore no outstanding appeal on the basis of the Appellant’s health. I had also preserved findings that the Appellant and his sponsoring wife, Ms Caroline Omekara, were married in a customary marriage in Nigeria on 20th December 2019. She had visited Nigeria for a month in that period although the Appellant claimed to have remained in the UK.
The issues
3. I agreed with the representatives that there are three issues in this remaking appeal.
4. The first is whether the Appellant has a genuine and subsisting parental relationship as a stepfather to Ms Omekara’s eldest British national son. This is relevant for the purposes of Section 117B(6) of the Nationality, Immigration and Asylum Act 2002. In the context of SR (subsisting parental relationship – s117B(6)) Pakistan [2018] UKUT 00334 (IAC), the question of removal is a hypothetical one, namely if the relationship is as claimed, whether it would be reasonable to expect the qualifying child to leave the UK. Mr Tufan accepts on behalf of the Respondent that if the parental relationship is as claimed that it would not be reasonable to expect the eldest child to leave the UK. This is not surprising in light of the child’s significant needs, given his autism and hyperactivity disorder. I should add for the remainder of these reasons, I will refer to Ms Omekara’s children by different fathers, ‘child 1’ (the eldest British national child) and a younger child, ‘child 2’, who is a Nigerian national and who has limited leave to remain alongside Ms Omekara. There is no reason to anonymise either that the Appellant or Ms Omekara as there is no risk of jigsaw identification, as the children have different names.
5. The second issue is if, notwithstanding the lack of a parental relationship as claimed, whether the Appellant has family life with his wife and her children, which even if not constituting a parental relationship with the latter, means that the effect of his removal would have unjustifiably harsh consequences for the wife and children for the purposes of GEN.3.2 of Appendix FM. In other words, family life can form a variety of relationships and is not limited to a parental relationship under Section 117B(6).
6. The third question is if I were to answer the first two questions the negative, nevertheless whether there remain very significant obstacles to the Appellant’s integration in his country of origin, Nigeria. The Appellant does not claim to have satisfied the long residence rules and has not presented evidence of continuous residence in the UK, but nevertheless claims that because of the absence of any family members apart from a very elderly uncle in his 90s, who witnessed the customary marriage, he would not be able to reintegrate into Nigeria, which he claims he left in 2006.
7. In answering all of these questions, I also have considered more widely Section 117B of the 2002 Act and in my conclusions, I will address the relevant factors for the purposes of an assessment of the proportionality of refusal of leave to remain.
The hearing and evidence
8. I had previously issued directions requiring there to be a composite bundle comprising all of the evidence on which the Appellant sought to rely and including witness statements which should comprise their evidence-in-chief, without the need for oral examination-in-chief unless permitted. Regrettably and without criticism of Mr Georget, there has been no compliance with those directions, despite the Appellant being legally represented. Instead, the representatives and I needed to navigate a way through four different bundles, specifically an original bundle which had been before the First-tier Tribunal Judge, a second supplementary bundle, the Home Office bundle and documents received in response to Ms Omekara’s wife’s data subject access request, made to her local authority. The data subject access request had been made in response to my previous directions where I had adjourned an earlier hearing because on the face of it, there appeared to be documents that were directly relevant to the claimed relationship, particularly because Ms Omekara appeared to be claiming a number of benefits on the basis of being a single parent and it might be possible for the matter to be resolved determinatively if the local authority were to confirm in the documents, in its dealings with the family, what role the Appellant played in the stepchildren’s lives. Mr Georget had indicated that the local authority was unwilling to confirm the Appellant’s role and instead the Appellant had had to resort to a data subject access request, which was the fourth set of documents. Whilst I am grateful for these, that does not explain the absence of a composite bundle which substantially hindered a review of the documents which then in themselves contained multiple duplications running to hundreds of pages and meaning that it is not possible to refer to particular pages in any one bundle. I have nevertheless done the best as I can to identify the relevant documents.
9. The second important breach in the directions is that the witness statements adopted by the Appellant and Ms Omekara plainly did not contain all of the evidence in chief that they wished to rely upon. The two sets of witness statements had been relatively brief, the first not addressing the questions of parental relationship at all and the second, expanding upon that a little but in brief, generalised terms. It then became necessary in light of the documentation in the data subject access request and other documents for both witnesses to be examined-in-chief. The reason for this is that the bulk of the documents produced in fact were contrary to their positions, namely the bulk of the documents appeared to suggest that in her dealings with the local authority, Ms Omekara had maintained that she was a single parent, who coped alone. It was these documents which they then needed to address.
The Appellant’s case
10. Before I come on to the witness evidence which I have evaluated, I outline the parties’ respective positions. Whilst not an attractive case to run, (as Mr Georget put it), the Appellant’s case is that Ms Omekara has told repeated lies. There are two versions of events which are inconsistent. Both have been maintained over many years, and both have required elaborate doubling down on those untruths over that period of time. As pithily submitted by Mr Georget, the question is which is the real lie, and which is the truth. As became apparent from the documents which had been the subject of the data subject access request, Ms Omekara has maintained over many, many years to the local authority for the purposes of housing benefit, to the Department for Work and Pensions in order to obtain a variety of benefits and to the Respondent in making application for limited leave to remain that she is a single parent, with sole parental responsibility for her two children. I will set out below where those references are included in the documents. The references even go so far as medical records although she indicated that she did not tell deliberate untruths to her doctors, either that they misrecorded what she said or that, in her words, it was a private matter for her. She now says that the entirety of that narrative maintained over the course of seven or eight years, is false. Instead, she says that the truth is that not only has she married the Appellant (which is not disputed) but they in fact live together and have lived together since January 2021 and that he plays a full parental role in the lives of both child 1 and child 2. She says that this, although not reflected in almost any of documentation, which says directly the opposite, is reflected in sources of information which tend to tell the truth. In particular, letters from child 2’s school, speak of the Appellant’s role in the life of child 2 at the very least. There are also letters from vicars and nuns, which explain the family’s involvement in two churches, one Church of England, the other Roman Catholic.
11. Mr Georget submits that the Ms Omekara has been candid about having committed a fraud in obtaining her benefits and that this is testament to the honesty of her evidence before me. He also submits that the Appellant’s evidence, even if brief, is not such that can be criticised because of its brevity where he has not been asked further questions and which, in practical terms, touches on aspects of the children’s lives which are indicative of the parental relationship, for example, his involvement in bathtimes and cleaning up because child 1 is incontinent. The Appellant’s testimony is consistent and so in this case I must assess the credibility of both witnesses in their oral evidence and also the likely motivation which explains which of Ms Omekara’s version of events is true.
The Respondent’s case
12. The Respondent’s case is that almost all of the documentary evidence, which Ms Omekara now says was an sustained fiction, points one way, namely that she is a single parent, and despite her marriage to the Appellant, he does not have a parental relationship, even as a step-parent, with child 1, or child 2. Ms Omekara’s witness evidence could not be relied on, as she was not honest. On her own account, one version of events which she had maintained over a number of years was a lie. Even if there were family life of sorts between the Appellant and Ms Omekara and her children, the effect of his removal would not have unjustifiably harsh consequences. From a practical perspective, Ms Omekara had access to the full range of state support, including accommodation, a paid-for respite carer, and other benefits, as a single parent. Ms Omekara and her children could continue to keep in contact with the Appellant via modern communications.
13. In terms of the Appellant’s private life, he had been educated to university level in Nigeria. He could integrate into Nigeria as an ‘insider,’ in the sense envisaged in SSHD v Kamara [2016] EWCA Civ 813.
Analysis
14. In my analysis of the evidence, I set out first the documentary evidence, in which Ms Omekara had maintained a narrative of being a single parent, and the contrary evidence of what she now says is true. I then come on to the explanations of both witnesses. I set out also other wider family circumstances which, whilst not directly relevant to whether the Appellant has a parental relationship, also shed light on the couple’s credibility.
The documentary evidence
15. The evidence that Ms Omekara is a single parent who does not cohabit with the Appellant is as follows. She had applied on 31st August 2023 for further leave to remain alongside child 2. She applied for a fee remission on the basis that she was in receipt of benefits. She claimed that her relationship status was single. There was no reference to the Appellant. She referred to being in receipt of disability living allowance for child 1, income support, child benefit, child tax credit, carers allowance and a council tax reduction. She accepted that she received the council tax reduction on the basis of claiming to be a single parent.
16. On 10th April 2024, the Appellant applied for further leave to remain. This time, she stated that she was married, was living with a partner and had been living together with him since December 2019. She stated that she would provide evidence of cohabitation since that date, although she has subsequently accepted that none is forthcoming, and she now asserts that they cohabited since January 2021. In the 2024 application, in answer to the question of what family and friends she had in Nigeria, Ms Omekara said, “There is no family members and friends in Nigeria.” In fact, as the local authority documents in the response to the Data Subject Access Request reveal, Ms Omekara has adult children in Nigeria and elsewhere, about which she makes no reference in any of her witness statements. In completing the 2024 application, Ms Omekara declared that to the best of her knowledge and belief the information relating to the application was correct. She acknowledged that if false information were given the application would be refused and she may be banned from the UK and prosecuted. She explained in oral witness evidence that she had not thought the question about family members included adult children. I set out later in this judgment the children and grandchildren Ms Omekara has in Nigeria as well as an adult son in the UK, and a grandchild.
17. The Appellant’s application for leave to remain is dated 11th May 2022. It was made on the basis of medical grounds and despite having entered into a marriage, the Appellant claimed to be unmarried partner, although that is explained on the basis that the couple were in doubts as the validity of the customary marriage. Nevertheless, the Appellant’s application says, in answer to the question, “Do you and your partner currently live together?” “No.” The next question was, “Why do you not live with your partner?” The Appellant said, “Because his partner had two autistic children.” The next question was, “Do you and your partner intend to live together in the UK?” The Appellant answered, “Both parties intend to live together once they have bigger accommodation.”
18. The Appellant said in oral evidence that the “focus” of his family life at the time was at Ms Omekara’s home address and that he frequently stayed overnight there, although he maintained living in a room at a separate address, perhaps once a week, to which all of his correspondence, specifically in relation to NHS medical documentation, in relation to his cancer treatment, was sent. The Appellant has also explained that he maintains that address and pays a nominal rent, because the owner is kind to him.
19. Child 1 has an Educational Health and Care Plan or ‘EHCP’ and both children were the subject of Child in Need Plans. The latter resulted in home visits by social workers and continuing monitoring of the family situation over many years. Some of the documentation predates the date of the claimed cohabitation in January 2021. The Child in Need documentation, includes observations from social workers of 17th October 2022, and refers to parental engagement with schools. It refers to Ms Omekara having good communication with Child 1’s school and that she reads and responds to all daily notes in the communication book, attends parent teacher consultation and has good conversations. She is described as undergoing a course to understand Child 1’s needs. There is no reference to the Appellant. That is an ongoing theme in all of the documentation and so I do not repeat it, although the comment applies to all of the local authority and NHS documents, which I will come on to discuss.
20. A record of council visits, which include those up to 2024 and which include a future meeting in October 2025, refer to the local authority’s knowledge of family arrangements. They include a record of child 1 and although clearly not written by him, reflect the local authority’s understanding that:
“I live at home with my mother and brother [child 2]. I am Nigerian in heritage which I am very proud of.”
21. Below that is a reference to a local authority funded care package of eight hours a week and an additional four hours during holidays. The named father is Child 1’s estranged biological father.
22. Next is a Children and Young Person’s Services (‘CYPS’) assessment. It is in respect of child 1 and is undated but appears by virtue of child 1’s date of birth and his stated age, to be from 2024. It refers to a service user, namely Ms Omekara and child 2, as well as child 1’s biological father, but no reference to the Appellant. That same document refers to Ms Omekara’s origination from Nigeria and the fact that she has had a previous marriage and children from that relationship.
23. There is a CYPS document in which child 2 is referred to as being 7 years old, which would place the date of the report around late 2022, and refers to the detailed assessment of the family relationships. It describes both children as living with Ms Omekara, and her having five other children in Nigeria as well as grandchildren. It records that child 1 and child 2 have an older adult brother now living in the UK with his wife and occasionally coming around to visit and spend time with the family. None of this is referred to in Ms Omekara’s witness statements.
24. The same document refers to Ms Omekara’s engagement in parent teacher consultations and regular telephone discussions. It describes the housing situation. The family live in permanent accommodation in a two-bedroom house, with child 1 with his own bedroom and child 2 sharing a room with his mother. The home was observed to be free of clutter, appeared clean and tidy. In simple terms, the home visit makes clear there is no reference to the Appellant whatsoever despite it being dated in the latter part of 2022 when the couple claimed to be cohabiting. It refers to mother having formed positive friendships within her community and church, who offer support when required and she was not in any financial difficulties. Instead she is described as relying heavily upon child 1’s benefits, as his carer. It further refers to both children “observed at home to be settled and thriving in mother’s care.” Mother is studying a part-time childcare course to be able to best positive her two children at home. The author of the report recommended that the Child in Need Plan be closed for child 2, but that it remains in place for child 1. There had been various meetings, including in November 2022.
25. Finally, there is document from an NHS Foundation Trust in which child 1’s bedwetting is assessed in what is described as an initial assessment report dated 26th June 2022. The date of this document is after the couple claim to have been cohabiting since January 2021. When Ms Omekara was initially asked about this in oral evidence, she said that discussions around bedwetting were by telephone only. However, it was pointed out to her that the consultation was referred to as “face to face” and she accepted that she had attended a hospital. The assessment document referred to Ms Omekara being accompanied by a “family friend.” She was asked why it did not refer to the Appellant as child 1’s stepfather. She explained that this was because she was private about such matters, but that she had always been open with doctors about the Appellant being the stepfather to her children. The same letter referred in the heading Family Composition and Housing:
“Current accommodation is a two bedroomed house. He [child 1] shares one bedroom with his younger brother six years plus but has his own bed. Toilet is on the same floor. He lives with mother and sibling.”
The remainder of the letter refers to Ms Omekara’s comments, including her having to replace mattresses as a result of the bedwetting. Once again, in oral evidence, Ms Omekara was asked why the doctors had stated that she lived with her two sons, but with no reference to the Appellant. She suggested that the doctors had misrecorded the setting of the family accommodation, namely residence only with the two children and herself.
26. Other documents, which are contrary to the Appellant’s contention of cohabitation with Ms Omekara from January 2021, include the fact of all of his NHS correspondence in relation to his cancer treatment and postdating the period of claimed cohabitation being addressed to another address approximately half an hour’s walk from Ms Omekara’s address. The Appellant maintains that this is effectively a postal address. He says that he last slept there at the end of 2024 but continues to rent the room in question.
Documentary Evidence in support of the Appellant’s case
27. There is no correspondence from child 1’s current school supporting the Appellant’s case of parental involvement with him. The Appellant says that he has asked the school, and they refused to provide it. However, there is correspondence from child 2’s school. In February 2023, it is stated that the Appellant occasionally brings the child to class and picks him up. This developed by 22 January 2024 in a letter addressed to whom it may concern, indicating that they understand that the Appellant is stepfather and that he is named as an additional contact and has, over time, become a well-known member of the school community due to the active role that he plays and his engagement with child 2. That is addressed from the designated safeguarding lead. A letter of 30th April 2024 is also addressed to whom it may concern and refers to both children and that the Appellant had helped his spouse care for sons prior to child 1 transitioning to a new school and that the appellant had been a huge support for school drop offs and pickups for a number of years now and that they understand the Appellant to be a stepfather to child 2 and he plays an active role and engagements concerning child 2.
28. There is also correspondence from two churches, the first of 15th April 2024 from a Church of England Church, which refers to having known the Appellant and his family for a long time as parishioners and witnessed his presence not only in the church but around his family. The author has not given witness evidence, and it refers to ‘family’ in general germs. There are two further letters. One is from a parish priest of a Roman Catholic church and the other from two nuns, Sister Patricia and Sister Immaculata referring, in February 2022, (so a year after the period of claimed cohabitation) to the Appellant being a great support, being a regular church warden, who helps clean the church and offering his services and that they support him in prayers. The parish priest refers to him being a regular worshiper and an active church warden. The fact of the two sets of churches is not to doubt that a person may attend two different traditions within the Christian faith, but sits uneasily with the Appellant’s evidence that the reason he began attending the Church of England Church was because of its close proximity to Ms Omekara’s home address, in contrast to the Roman Catholic church, which was nearer to his separate address. The correspondence from the Roman Catholic church postdates his claimed cohabitation with Ms Omekara, by over a year.
Additional oral evidence
Ms Omekara’s oral evidence
29. Ms Omekara said that she had never told the local authority that the Appellant lived with her. She feared that this would have an impact on him and that if he were removed, she would lose him. She could also not afford to lose the financial support that she was receiving, as a lone parent, as the Appellant was not supporting her financially. They would send him back home. She had hoped and intended that when he received his “twenty year papers” (which I understand to refer to regularisation of immigration status upon proving long residence, even if unlawful, for twenty years) that she would then disclose his living with her because he would then be able to work.
30. Ms Omekara also accepted that she had not informed the Department for Work and Pensions, for the purposes of claiming benefits. She still claimed to be a lone parent. She had ‘begun’ to tell a DWP assessor in July 2024 for the purpose of Universal Credit, but when they said her benefits would be reduced, she became scared and removed his details from the Universal Credit application in January 2025. She was not proud of her actions, but life had not been easy, and it was difficult for her to live with two children, with no food.
31. Ms Omekara clarified that she had six children in total, four of whom from a previous marriage, from the age of 19 onwards, when she lived in Nigeria. Her previous husband was now deceased. She had an eldest daughter, married, aged 36, in Nigeria. The next youngest was an unmarried son, aged 34, who lived in China.
32. The next youngest was a son aged either 32 or 33, who lived in Birmingham with his wife and his son, i.e. her grandson.
33. The next youngest of her children was a son who lived in Nigeria, aged 28 and who was not married. The remaining two children were child 1 and child 2.
34. Ms Omekara explained that she had five grandchildren but then clarified that this was six. Five were by her eldest daughter and the other grandson was in Birmingham. She claimed that her son in Birmingham did not have much to do with her. He visited her in London rarely and last visited when she graduated from her local college at the beginning of this year. He had arrived in the UK two years ago, had visited perhaps three times and worked all of the time. She claimed that the Appellant had no family of his own. She accepted, as identified in previous directions, that she had referred in a previous application to a having a respite carer for Child 1, paid for by the local authority, called “Emmanuel,” whose address was the same as the Appellant’s post address. She had originally had a carer through an agency for eight hours a weekend and an additional four hours during the holidays, but the local authority had recommended that it was better for child 1 that he had someone he knew, and this was a friend through church. She was unable to comment on why the same address was that for the Appellant. She believed that “Emmanuel” had lived in one room but lived at another address now.
35. When asked why the Appellant could not return to Nigeria, and reapply for entry clearance, Ms Omerara said it was too much stress, and her children would not like it. He also had no children or relatives other than an elderly uncle in Nigeria. It was put to her that on her account, she had defrauded the local authority and the DWP. She accepted this but said that she was scared, and she did not know what to say. She needed financial support and had no money. If they rejected the Appellant’s leave to remain, she did not know what she would do. She disputed, however, ever hiding her relationship with the Appellant from Child 1’s doctors and when it was put to her about his being described as a friend, said that that was because she was a private person. She had meetings with a social worker who was aware of his involvement, but the social worker would not provide confirmation of this.
The Appellant’s oral evidence
36. When challenged as to why he said in his application form that he was not living with his spouse when he now claimed to have cohabited with her from 2021, the Appellant said that in respect of Ms Omekara’s application, she had been afraid of the housing situation and that he was only now aware of the “full situation”. He was always there during the period in 2021, preparing the children for school. He disputed still having a room at the alternative address although he later clarified that he did. He last set foot in the room in 2024 and last stayed a night there in 2023. When he moved in in January 2021 he was sleeping at the home with his wife and he visited the alternative address and/or slept there once in a while. It was his cancer that had contributed to his moving in with Ms Omekara. However he clarified that his sickness started at the end of 2021 and that he had moved in with her at the beginning of 2021.
37. When asked why he had included the alternative address in his application, the Appellant said that his attention or focus was mainly at his family’s home address and he spent most of the time there, going to the postal address only once a week. He could not remember when he last slept at the postal address. He also maintained that he had met child 1 and child 2’s social worker regularly but she said she would not write a letter confirming this. When asked about the doctor’s correspondence describing him as a friend, “most knew him as a father” and when challenged as to the absence of any witness evidence from those who could confirm the couple’s cohabitation, he said that he did not know that he needed to provide witness evidence from others, and that if this had been asked for he could have obtained witness evidence from a “thousand” witnesses. When asked why Ms Omekara had and continued to claim benefits as a single parent, he said she was a person in control of these matters and he did not know much about this, which is why he did not “turn his eye” to these things until he started knowing about them. He nevertheless maintained that he lived with Ms Omekara. When he was asked why Emmanuel, Child 1’s carer had the same address as him in Ms Omekara’s application form, he said it did not matter. On clarification, he said that they attended the same church and that was where Emmanuel was possibily living. The property concerned was a multi-occupation rented house, where about five people were living. He confirmed that he had moved in with Ms Omekara in January 2021. He was asked whether this was “part-time,” and he said that his “focus” was upon the family home. When asked how he paid for the separate room at the postal address, he said that the nuns, Sister Immaculate and Sister Patricia had helped him, and he still paid rent there although he clarified in evidence that he did not receive payment from them.
38. When asked about Ms Omekara’s family in Nigeria he initially said that she had none. When asked to confirm this, he then said she had and said a few of them were in Nigeria but they were now grown up. When asked again, he said she told him that she had four children, but they were not close, and they had not discussed things like that. If anything happened, she would discuss the solution, asking for a solution. One lived in Birmingham and visited once in a while. When asked whether they might to be able to assist him on his return in Nigeria, he said they could not as they were busy, and one was in China. He described what else he did for the children. He arranged for the school bus and took child 2 to school, and helped prepare them for school as Ms Omekara was at college. He bathed them, which was not easy, and had to clean up a lot of faeces. He took them out at the weekends, including swimming and church.
Findings and Conclusions
39. I do not recite the law in detail. I have already referred to the relevant provisions of the Immigration Rules, specifically GEN.3.2 and, paragraph 276ADE(1)(vi), as it was, and Section 117B of the Nationality, Immigration and Asylum Act 2002. Mr Georget rightly referred to the so called ‘Lucas’ warning. As the Court of Appeal noted in the case of Uddin v SSHD [2020] EWCA Civ 338 at §11:
“11. I note in that regard the conventional warning which judges give themselves that a person may be untruthful about one matter (in this case his history) without necessarily being untruthful about another (in this case the existence of family life with the foster mother's family), known as a 'Lucas direction' (derived in part from the judgment of the CACD in R v Lucas [1981] QB 720 per Lord Lane CJ at 723C). The classic formulation of the principle is said to be this: if a court concludes that a witness has lied about one matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example, out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure. That is because a person's motives may be different as respects different questions. The warning is not to be found in the judgments before this court. This is perhaps a useful opportunity to emphasise that the utility of the self-direction is of general application and not limited to family and criminal cases.”
40. Mr Georget has invited me to consider that the most plausible reason for Ms Omekara’s lies is because she is worried about losing a substantial amount of income or her house (which she might not otherwise be able to afford in the absence of benefits). She was barely surviving without the benefits and accommodation as a lone parent. The real “truth”, which that she is not a lone parent at all and co-parents with the Appellant, is also plausible.
41. In fact, the application of the Lucas direction is slightly different in this case, because it is not that merely because a person is lying in one respect but not lying about another matter. Instead, it is Ms Omekara’s own case that she must be lying in version of her narrative, in order for the Appellant’s narrative claim to be truthful, but she says there is an explanation and a plausibility of the truth of one and the lie in the other. In essence, I must consider the plausibility of her motives for lying, as she accepts, on any account, that she has told sustained lies. She points to the implausibility of the otherwise contrived parental relationship and also evidence to which I can impute substantial credibility, in particular from the school safeguarding officer in respect of her children, who has no motive to lie.
42. Dealing first with the question of motivation, I do not accept Mr Georget’s proposition that the maintenance of a lie about a parental relationship is any more or less plausible than maintaining a lie about being single to the local authority, the DWP, or the respondent in an earlier application for leave to remain. I accept Mr Georget’s submission (without criticism of him, but unattractive as it is) that there is a clear financial motive for lying to the local authority and the DWP. However, there is no such motive in Ms Omekara’s dealings with Child 1’s doctors. Put simply, there is confidentiality to be expected between doctor and patient and although I anticipate that it may be said that Ms Omekara may not have anticipated this because she may not understand the nuances of confidentiality, that is not her case. She maintains that she has been candid with the doctors treating her about the role played by the Appellant. However, it is not merely the case that the medical records omit any reference to the Appellant. Rather they describe him as a close “family friend” and specifically describe the family accommodation arrangements as not including the Appellant. It has been suggested that this is a misrecording or in the alternative that she is private. Neither is consistent with the third alternative explanation, which is the doctors have recorded the accurate information. It also cannot by some sort of misunderstanding on the telephone, as the medical appointment was face to face.
43. Touching upon a matter to which I have already referred, Ms Omekara suggested that she had misunderstood the application form where she referred to having no family members or friends in Nigeria not including adult children. I reject this explanation without hesitation and find that she was deliberately untruthful in this application. The reason for my finding this is that first, she made the application with the benefit of legal advice. Second, she has made no reference at all in any of her witness statements to the various children that she has, not only in Nigeria but also in the UK. She has not qualified the witness statements by referring to her children in the UK but rather to her two children. I am satisfied that she deliberately sought to mislead this Tribunal on the existence of the wider family and it was only when the data subject access request material was received, which the Appellant’s solicitors received and were therefore were obliged to disclose, that the matter then needed to be addressed. Indeed, the motives for telling that deliberate untruth are clear. She has suggested in her application for further leave to remain that she has no relatives in Nigeria and that would clearly be a relevant factor in granting further leave to remain. In fact, she has multiple adult relatives and grandchildren in that country. This is relevant to the Appellant’s integration in Nigeria.
44. The next question around motive is the fact that the couple are married as claimed and why Ms Omekara should lie about the Appellant’s subsisting parental relationship. The explanation is perhaps best given in the description by the doctors treating child 1, which is a description of a family friend which Ms Omekara accepts referred to the Appellant. In other words, he is a close family friend who helps and provides emotional support to Ms Omekara, even going so far as to provide practical support in terms of bathing etc. and that she gains support from this. Whilst it is said that she has given the evidence at some inconsiderable risk, as she is effectively revealing a claimed fraud against the local authority and the DWP over many years, in reality, given her absence of any financial assets, I anticipate that the risk of recovery of any historical benefits is limited. It may well be that in revealing her evidence there is a risk of future income loss. However, I do not accept that this means that the motive for telling an untruth about the claimed parental relationship is any less likely than what she says is the lie, namely that she is a single parent with sole parental responsibility, who has the support of the Appellant and also friends at her church. The difference in motive and the risk that may attach to her is of limited assistance.
45. Turning to the analysis of the documentary evidence, as Mr Georget was forced to accept, almost all of the evidence, bar a small number of important exceptions, are against the Appellant’s version, and are consistent with the couple living at different addresses and his not having any parental responsibility. Those who have observed Ms Omekara in the family setting, refer to her coping well, that the children are thriving and describe the children as living with their mother, without any reference to the Appellant. This is in the context, not merely of an EHCP but specifically in the Child In Need Plans. The authors are social workers who are required to carry out an assessment of risks to the children in circumstances which I do not need to repeat but which have included concerns about Ms Omekara’s ability to cope. It would be a grave breach of professional responsibility if those social workers were aware of cohabitation by the Appellant at the shared accommodation but had not referred to it and assessed the consequences of any additional risk. I do not accept as likely Ms Omekara’s claim that a social worker is aware but has refused to refer to the reality of the situation in reports, namely of the Appellant and Ms Omekara living together in the shared parental relationship. That would be a necessary part of the assessment of the ongoing welfare of the children who are subject to the Child in Need Plan.
46. I am conscious, in relation to the correspondence for the Appellant’s separate address from the NHS, that someone may have many motives for having a separate correspondence address when they in fact live with a partner or wife. That situation is not uncommon, regrettably, particularly where somebody does not have immigration status but seeks to obtain non-emergency medical services and, for example, will have done so initially as a student through GP registration and then because GP practices may not check for change in circumstances, they continue to use an address at which they were originally registered as a student to then gain GP referrals for ongoing medical treatment. That does not mean that the Appellant and Ms Omekara are not cohabiting and indeed I have heard no substantive evidence of challenge on that basis. I mention this only because the issue of separate accommodation addresses is not uncommon. That being said, there were a number of aspects of the couple’s account which make no sense. The first is why the Appellant would continue to maintain a room and pay rent upon it. Even if is reduced amount, if it is merely a postal address and the owner is a friend, presumably the NHS correspondence could simply be forwarded on to the Appellant. The second is in the context of the explanation that the Appellant moved in after he became ill and that was something that Ms Omekara also suggested, but once again that make no sense as the Appellant’s medical condition worsened and he became ill in the latter part of 2021, but he claimed to have moved in in January 2021. There is a further aspect of the two churches’ correspondences on which I have already touched, where on the one hand the Appellant says that he began attending the Church of England Church because it is closer to where he now lives with his wife, whereas the correspondence from the Roman Catholic Church, nearer to the so called postal address, continues to refer to him in 2022 as a regular attender.
47. I also bear in mind other aspects of the evidence, including photographs, to I referred in the error of law decision although having reviewed these briefly, these do not really add anything in substance other than them being consistent with a close friendship.
48. I also bear in mind importantly the correspondence in respect of child 2, which has developed over the years and makes clear, not merely that the Appellant drops off child 2, but that they understand the Appellant to be stepfather to child 2 and he has been substantially involved. There is an obvious qualification to that statement, which is that the school understands the Appellant to be a stepfather. True it is that he regularly attends and is described as being substantially involved in relation to child 2, and also with child 1, but that is also consistent with a close friendship and the self-description of him as stepfather having been reported by the Appellant and Ms Omekara. It is also unclear why the Appellant is not described as step-father to child 1, when the school had previous engagement with child 1. That is not to impugn the integrity of the author of the correspondence from the school as a safeguarding lead, merely that it reflects two facts. The first is the Appellant’s involvement regularly and the second is the couple’s description of him recently and clearly in the context of the litigation as the stepparent. The same school did not describe him as such in the February 2023 letter.
No genuine and subsisting parental relationship
49. Considering all of the evidence, including an assessment of the credibility of the Appellant and Ms Omekara in the round, I find that whilst the couple are legally married, they do not cohabit. The Appellant could have adduced witnesses, friends, church attendees and the like, to testify as to their cohabitation and despite legal representation, he has not. In reality, the problem otherwise is that he relies on one or two pieces of documentary evidence which are in direct contrast to the numerous documents supporting an alternative narrative which they now say was a lie. I have already explained why each of the claimed lies is equally elaborate and maintained over many years and whilst I accept there may be a financial motive for the Ms Omerkara in having told the earlier lie, I am equally confident that she is willing to tell an untruth for a very good and close family friend. There are also the internal inconsistencies in the account as to why the Appellant maintains the alternative address and notwithstanding his role in bathing and helping Ms Omekara with the support of the children I do not accept the fact of cohabitation or that he makes decisions in the children’s lives or effectively stands in the role of father to them. I find it likely that he is a good supporter for Ms Omekara and her sons, that he has married her on that basis, that he lives not too far away from them, but that he does not stand in the role and in the shoes of parent to either of the two children. He does not have a genuine and subsisting parental relationship but instead has a genuine relationship as a close family friend. I conclude this notwithstanding and expressly considering the fact that the couple are legally married, albeit in a proxy wedding.
50. On the basis of the above findings, I have concluded that the appellant does not have a genuine and subsisting parental relationship so as to satisfy Section 117B(6) of the 2002 Act.
Unjustifiably harsh consequences
51. Where then does this leave the remainder of the findings in the nature of the family relationship and in particular whether the consequences of his removal would be unjustifiably harsh? The test for unjustifiably harsh consequences is a balancing exercise.
52. I accept that the Appellant provides regular support but not any financial support whatsoever to Ms Omekara and her two children. He assists with school runs for child 2. Child 1 takes a special bus to the school. The Appellant also assists with, (I have no doubt on a regular basis), bathing and at the weekend, and the Appellant and Ms Omekara regularly attend a church and friendships. It is said that Ms Omekara has substantial commitments to her studies at college, but I also note that she has graduated and effectively what she is pursuing is additional qualifications in English and maths. There is no evidence as to the particular time spent in studying or why she would be unable fulfil those commitments and look after the children at the same time, if the Appellant is not in the UK. She has weekly respite care paid for and the children are at school. I have discounted any particular support of the spouse’s son in Birmingham, not because I place particular credibility on the account of the Appellant or Ms Omekara, but because of where they live in Birmingham, particularly if there is a young grandchild. I have indicated that I do not place any particular weight on Ms Omekara’s credibility, because she did not even volunteer the existence of her adult son in the UK and would, I find, seek to seek to minimise any support that she might receive. She has however made plain that she has friendships with her church, she also does not work and receives additional funding for respite carer and the same documentary evidence indicates that she has no financial difficulties. In simple terms, she has accommodation paid for, sufficient monies to feed her and her children, attends college for an unspecified number of hours, has additional respite care, all funded and arranged on the basis of being a single parent. The documents record she is coping and thriving and not, as she now claims, that she would be unable to cope without the Appellant. In the circumstances, while I have no doubt that she will miss the Appellant greatly and that he provides her with substantial emotional support, I am not satisfied that removal would place any practical difficulties upon her.
53. In respect of any obstacles to the appellant’s integration in Nigeria, I do not have sufficient evidence as to whether the Appellant has been continuously in the UK since 2006. I also do not regard it as safe or appropriate to make that finding, particularly given first the couple’s willingness to tell deliberate untruths and second, the noticeable reticence of the Appellant to discuss his situation in Nigeria. I only observe two things. The first is that the Appellant has disclosed an up-to-date passport which he obtained in May 2021 and which continues until May 2026, issued in London. The Appellant himself has claimed not to work. Ms Omekara claims that he cannot provide any financial support for her with the implication being, although not expressly stated, that he does not work, and I noted the First-tier Judge had referred to the Appellant as currently being signed off as sick. However, and without making any finding, I pause to observe that the medical correspondence dated June 2023 from the Appellant’s doctors state:
“Egbo is hoping to be able to return to work very soon and I have made a plan for him below.”
54. The correspondence refers to the Appellant on 14th June 2023 as working as a “dryliner” i.e. in construction. In fairness the appellant has not been asked any questions about this, so I say no more other that in relation to his qualifications before entering the UK, said to have been in 2006.
55. In relation to his qualifications, the Appellant obtained a university degree in Nigeria in business administration, around 2000, so when he would have been around 32 years old. He describes having a part-time job before he entered school and in the business of importation for his boss. When asked why he could not live in Nigeria he said as he was getting better, he needed to work and there was no-one at home he could fall back on. In terms of obstacles in Nigeria, the practical difficulty is that other that in relation to his direct relatives, where it is said that there are none, I am not satisfied that the Appellant has provided the full picture, in terms of ongoing contact with Nigeria. Ms Omekara has substantial family in Nigeria, and I think it likely, if he were being truthful, that he has substantial contacts ongoing in that country. He is educated to degree level, which many people in Nigeria are not. There is no health reason preventing him from work and as, in his words, as he is getting better, he is keen to work. Even taking his case at its highest that he has not been in Nigeria for many years, I do not accept that he is isolated from Nigeria in the sense that upon return there he would not, within a reasonable timeframe, be able to reintegrate himself as an insider in the sense envisaged in Kumara. He can and wishes to work. It may be that he has no family or assets in Nigeria but also, he has friends good enough who are willing to provide him separate accommodation from Ms Omekara, over many years, including from the church. He is fit and university educated and positively wishes to work. I also do not accept his generalised assertion that Ms Omekara’s many adult children would be unwilling to assist him to get on his feet in Nigeria even in the short-term. Based on the scant and previously undisclosed evidence about Ms Omekara’s family in Nigeria, I do not accept the Appellant’s credibility in his assertion that he would be unable to return to Nigeria and fully integrate there.
56. In the balance of unjustifiably harsh consequences on both the Appellant, Ms Omekara and Child 1 and Child 2 (and their best interests for the purposes of Section 55 of the Borders Citizenship and Immigration Act 2009, on the one hand, as I have found, I have no doubt that Ms Omekara and the children will miss him. He has been involved in their lives, as reflected in the school correspondence, over a number of years and provides support emotionally and with visits, if not daily, certainly on a regular number of occasions each week to carry out certain tasks in assisting Ms Omekara. That being said, I reiterate the finding that I have no doubt that Ms Omekara will be able to cope by herself and indeed in the words of the local authority, will be able to “thrive”. I have concluded that she is indeed a sole parent who lives on her own and claims benefits on that basis and that is the truth, rather than the lie that she is in a cohabiting relationship. The couple will be able to continue to maintain contact and I have no doubt will remain close family friends. In the circumstances, the effect of removal would not even be harsh, let alone unduly harsh. It has been suggested that the children would be unable to cope emotionally because of the role he plays in their lives. That is not reflected in the local authority’s assessment in the Child in Need Plan and I prefer that assessment as reliable rather than the assertions of the Appellant and Ms Omekara. The Appellant does therefore not meet GEN.3.2.
No very significant obstacles to integration
57. I considered separately whether there are very significant obstacles to the Appellant’s integration in Nigeria, and for the reasons already outlined, I have concluded that there are not. The Appellant can and wishes to work. He is likely to have maintained contacts in Nigeria. Ms Omekara has numerous adult children there who could assist him, as could his friends and church from the UK.
Wider assessment under Article 8
58. I turn to the wider Article 8 assessment in this case. For the purpose of Section 117B of the 2002 Act, the Appellant speaks English. I am not aware of whether he has or has not claimed benefits, so I have assumed in his favour at this stage that he has not. I have also assumed in his favour (although this may well not be the case) that the Appellant has not accessed medical treatment to which he is not entitled without payment. That is perhaps a stretch, but it may well be the case that cancer treatment is analogous to other forms of medical treatment where, even if someone does not have immigration status, they are entitled to access it. His access to medical treatment has not counted against him in this proportionality assessment.
59. The couple began their relationship at a time when the Appellant has not had lawful status since 2010 in accordance with the immigration history, having originally entered the UK as a student and overstayed. It was at a time when they knew that the Appellant did not have lawful leave to remain and I therefore I attach little weight, although some weight, to family life. I have no doubt that the children see the Appellant as a valuable part of their lives, even if not as a parent. Against all of this and in particular is the Appellant’s obvious breach of immigration controls. He has continued to remain unlawfully in the UK, including an attempt to remain under the Windrush Scheme. He is educated to degree level. I also have no doubt that he can work and will positively wish to work and also that he could do so in Nigeria. If the Appellant genuinely wishes to fulfil the role of a parent, in my view, there is nothing stopping him from leaving the country, and applying for entry clearance on the basis that he now seeks to return on that basis. In the circumstances, the public interest in immigration control is such that upholding refusal of leave to remain is overwhelming.
60. I have no hesitation in concluding that the refusal of leave to remain does not breach the Appellant’s right to respect for his family and private life.
Notice of decision
61. The appellant’s appeal fails and is dismissed.

Signed: J Keith

Upper Tribunal Judge Keith

Dated: 6th May 2025

ANNEX: ERROR OF LAW DECISION

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-005521

First-tier Tribunal No: HU/54887/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE KEITH

Between

Mr Innocent Oguejiofor Egbo
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr J Inoma, Solicitor, Highland Solicitors
For the Respondent: Ms H Gilmour, Senior Home Office Presenting Officer

Heard at Field House on 31 January 2024

DECISION AND REASONS
1. These written reasons reflect the oral decision which I gave to the parties at the end of the hearing.
Background
2. The appellant, a Nigerian national, appeals against the decision of a Judge of the First-tier Tribunal, Judge Ficklin, who, in a decision dated 11th December 2023, dismissed the appellant’s appeal against the respondent’s refusal on 3rd April 2023 of his application dated 11th May 2022 for leave to remain based on Article 3 of the European Convention on Human Rights, and also on the basis of Article 8, because of a right to respect for his family and private life. In his application, the appellant had applied for leave to remain on medical grounds, because he had lung cancer which he claimed to be terminal. He referred to a relationship with a partner, and her two autistic children, in whose lives he played an important role. He also referred to his private life which he had established in the UK, having entered lawfully in 2006, aged 29 as a student, but having overstayed since January 2010. It is unclear whether the appellant’s partner and one of her children have or had any legal status in the UK, (the appellant and his partner had entered into a customary proxy marriage in Nigeria in December 2019). One child is said to be a British citizen. In rejecting his application, in relation to the appellant’s family life, the respondent did not accept the partner had leave to be in the UK or that the appellant had parental responsibility for either of his partner’s children. In relation to his private life, the respondent did not accept that there would be very significant obstacles to the appellant’s integration, including because he had family contacts in Nigeria. In relation to his most recent cancer prognosis (24th January 2023) the appellant no longer required follow-up from his oncology team as his latest scan showed no appearance of cancer and he was merely being monitored.
The Judge’s decision
3. The appellant appealed and in a brief decision, the Judge set out the law at §§5 and 6. There is no complaint that in doing so, the Judge misdirected himself.
4. The Judge found at §9 that the appellant and his partner had entered into a customary marriage in 2019. Contrary to his lawyer’s submissions, the appellant’s cancer was not terminal. He was not receiving further treatment but was being monitored and had a stoma for a colostomy bag. I take judicial notice that having a stoma does not indicate the likelihood or otherwise of the recurrence of cancer but is a consequence of surgery. The Judge concluded, by reference to Article 3, that the evidence did not demonstrate that the appellant was at risk of a serious, rapid, and irreversible decline in his health (§11). The Judge then turned to the question of obstacles to the appellant’s integration in Nigeria. The Judge did not accept that the appellant had lost all ties or connections to relatives. The Judge considered whether there were exceptional circumstances making refusal of leave to remain in breach of the appellant’s article 8 rights. The Judge had concerns about the reliability of the appellant’s partner’s evidence, in light of the appellant speaking to her while she gave evidence despite being instructed not to do so, and inconsistencies about whether the couple were cohabiting (§15). The Judge also noted at §16 that while the appellant’s partner’s two sons were autistic, a report from a child development service made no reference to the appellant at all, despite the report being two years after his marriage to his partner, who was described as a sole parent and the report outlined her difficulties as a single parent. A letter from the children’s school stated that they saw the appellant doing the school run occasionally, which was consistent with other evidence (§17). At §18, the Judge accepted that the appellant's partner's children had special needs and their situation was fragile. The Judge also accepted that the appellant provided significant practical help to his partner and that she would not be able to study if he did not help to look after the children.
5. Nevertheless, at §19, the Judge concluded that there was not sufficient evidence that the appellant had a genuine and subsisting parental relationship with the children. While his presence was clearly welcome and he helped his partner, the circumstances did not meet the threshold of exceptional circumstances and consequently the decision to refuse leave was proportionate.
The grounds of appeal and grant of permission
6. As a ground (1), the appellant submits that the Judge’s decision about the absence of a parental relationship was perverse and was not open to him on the evidence before him, specifically in the context that the children's mother and the appellant were married. The evidence had included not just a letter dated 6th February 2023 from the children’s school but a more recent letter of 30th November 2023, together with photographs of the appellant’s stepchildren and other family members, which the Judge had had failed to assess.
7. Ground (2) - as the Judge had accepted that the appellant provided significant practical help to his partner in respect of her children, who had special needs and whose situation was fragile, the consequential failure to consider the evidence relating to the appellant’s relationship with children meant that the proportionality analysis was unsustainable.
8. Judge Saffer granted permission on 30th December 2023. The grant of permission was not limited in its scope.
The hearing before me and the respondent’s concessions
9. The parties agreed that there was no challenge to the Judge’s conclusions in dismissing the appeal based on Article 3. They agreed that the Judge’s findings at §§10 and 11 should be preserved.
10. On behalf of the respondent, Ms Gilmour did not accept that the Judge’s conclusions in relation to the appellant’s relationship with his partner and her children were perverse, but she conceded that they were not sufficiently explained, and the analysis was not complete. I accepted that concession was properly made and was realistic, in light of the limited analysis.
11. Nevertheless, the parties agreed that I should preserve the Judge’s findings about the appellant’s customary marriage to his partner, at §§9 and 13.
12. I did not regard it as appropriate to preserve findings about the appellant’s partner’s evidence as being unreliable (§15) but I agreed that it is open to either party to refer to the Judge’s record of the evidence in remainder of §15, which was recorded as contradictory, unclear and the subject of prompting, in a remaking of the decision on the appellant’s appeal. There is no challenge to that record, but it remains open to remaking Judge to assess that record of evidence as they see fit, when considering the honesty and reliability of any future witness evidence.
Remaking
13. I am required to consider how the matter should be disposed of. I canvassed with the representatives, and both indicated that they were in my hands. §7.2(a) of the Senior President’s Practice Statement did not apply because there was no suggestion that the appellant had been deprived of a fair hearing. The issues are very narrow. There is now no Article 3 appeal, and the couple’s legal marriage is now accepted. While it remains open to the appellant to adduce further evidence, the evidence currently is relatively limited. I anticipate that the extent of any necessary judicial fact finding will be limited (§7.2(b)). It is therefore appropriate that I retain re-making in the Upper Tribunal.
14. The following directions shall apply to the future conduct of this appeal:
a. The Resumed Hearing will be listed at Field House on the first available date, time estimate 2 hours, to enable the Upper Tribunal to substitute a decision to either allow or dismiss the appeal. There is no need for an interpreter.
b. The appellant shall no later than 4pm, 21 days before the Resumed Hearing date, file with the Upper Tribunal and serve upon the respondent’s representative a consolidated, indexed, and paginated bundle containing all the documentary evidence upon which he intends to rely. This shall be in electronic format and filed via CE-File, in accordance with the Presidential Guidance note on CE-File and electronic bundles, to include indexing, hyperlinks and bookmarks and also be text-searchable. Witness statements in the bundle must be signed, dated, and contain a declaration of truth and shall stand as the evidence in chief of the maker who shall be made available for the purposes of cross-examination and re-examination only.
c. The respondent shall have leave, if so advised, to file any further documentation she intends to rely upon and in response to the appellant’s evidence; provided the same is filed no later than 4pm, 14 days before the Resumed Hearing date.

Notice of Decision
15. The Judge’s decision dismissing the appellant’s appeal under Article 3 ECHR was unchallenged and stands. His findings at §§10 and 11 are preserved.
16. The Judge’s decision dismissing the appellant’s appeal under Article 8 ECHR is unsafe and is set aside, subject to the preserved findings at §§9 and 13. It also remains open to the parties to address, in remaking, the Judge’s record of the evidence at §15.
17. No anonymity directions are made.

J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

31 January 2024