Aminat Saliu v The Entry Clearance Officer
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby,Lady Justice King,Sir Geoffrey Vos |
| Judgment Date | 03 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1847 |
| Docket Number | Case Nos: C5/2021/0089 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1847
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Hanson
Appeal Nos HU/02054/2019 & HU/020136/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Geoffrey Vos, MASTER OF THE ROLLS
Lady Justice King
and
Lord Justice Warby
Case Nos: C5/2021/0089
C5/2021/0092
Philip Nathan and Jeremy Frost (instructed by Sutovic & Hartigan Solicitors) for the Appellants
William Irwin (instructed by Treasury Solicitor) for the Respondent
Hearing date: 14 October 2021
Approved Judgment
Introduction
The appellants, now aged 22 and 25, are citizens of Nigeria, where they have lived all their lives. In 2019, they were refused entry clearance to join their mother, who had come here as a refugee 6 years earlier with the appellants' two younger siblings. The appellants' appeals to the First-tier Tribunal were dismissed, and the Upper Tribunal dismissed appeals against those decisions. On these further appeals, the main issue is whether the Tribunal decisions were wrong because they failed to take any proper account of the time taken to process the mother's claim to refugee status.
The factual and procedural background
In 2012, when the appellants were teenagers, their mother left Nigeria with her two other children, citing long-term domestic abuse by her husband, the appellants' father. The appellants remained in Nigeria, with their father. In October 2012, the mother claimed asylum in Ireland.
In April 2013, the mother was interviewed about her claim in the United Kingdom. Her claim was refused by the Secretary of State. But in October 2017, her appeal was allowed by the FtT (Judge Osbourne), on the basis that her account of domestic abuse was credible and she had been trafficked out of Nigeria. The mother was granted refugee status in the UK on 5 December 2017, along with her three dependent children: the two she had brought with her from Nigeria and a third, born in Ireland. The appellants were still living with their father.
On 17 May 2018, the appellants applied from Nigeria for entry clearance to join their mother and siblings. By this time, the appellants were both over 18 years old. So they did not meet the requirements of paragraph 352D of the Immigration Rules (“the Rules”), which permits the children of a person who has been granted refugee status to be reunited with their refugee parent. They were still living with their father. They sought leave to enter under the “exceptional circumstances” provisions in the Rules, arguing that their circumstances were such that to refuse them leave to join their mother would represent such a serious interference with their fundamental rights to respect for their family life as to outweigh the legitimate aim of immigration control, and would therefore represent a breach of s 6 of the Human Rights Act 1998. They relied on the respondent's “Family Reunion Guidance” of 2016. Their factual case was that they were children of a refugee, who were not independent, and were at risk of destitution.
On 11 January 2019, the Entry Clearance Officer (“ECO”) refused the applications, concluding that there was “nothing to suggest” the appellants were in any danger from their father, and they had provided no evidence to suggest that they could not continue to live with him. The appellants exercised their right to bring administrative appeals. These were considered by an Entry Clearance Manager, (“ECM”) who was satisfied that the ECO's decision was correct, observing in each case that “no suggestion has been made as to why with the financial assistance from her mother, the appellant cannot continue to reside in Nigeria.”
Following this decision the appellants moved to live with a Mrs Olasunbo, and appealed to the FtT on the basis that they could demonstrate exceptional circumstances or compassionate factors which justified the grant of leave. On 15 August 2019, FtT Judge B Lloyd heard the appeals. He heard live evidence, supported by written statements, from (a) the mother and (b) her uncle, Mr Bakare, a British citizen born in Nigeria in 1950 who resides in Yorkshire. Both were subjected to detailed cross-examination. An unsigned joint statement from the appellants was placed before the Judge, as well as a handwritten statement of Mrs Olasunbo. A written witness statement from the appellants' younger brother, Fawas, was admitted unchallenged.
The prominent features of the case advanced on behalf of the appellants were, in summary, as follows. The mother, Mrs Saliu, said she had left her husband because of domestic abuse, and gone to live with a friend. She took the two youngest children, but not the older ones because there was not enough room for them all at the friend's house and the younger ones were the most vulnerable. She had left the appellants with their father, her abuser, because she had no choice. She had promised the appellants she would make sure they could join her, but did not imagine the process would take some seven years. She had sent them money from 2016, increasing the sums more recently. She had sent them gifts via her uncle, and he had provided them with money when she could not do so as she was not working. She had always stayed in contact with them by phone. She had heard them speak of abuse they had suffered at home from their father and his family. By 2019 they had told her that they could not stand it any more, so in March of that year it was arranged for them to stay with Mrs Olasunbo while the mother applied for them to join her in the UK.
Mr Bakare gave evidence of visiting Nigeria and seeing the appellants, in a hotel in Lagos in 2018 and at Mrs Olasunbo's house in June or July 2019. He said that Mrs Olasunbo, the appellants and the mother had told him that the appellants were both mistreated and neglected by their father and their grandmother who wanted them out of their home. He also suggested that the appellants were in a state of depression and desperation to see their mother. He was not able to recall many details, and was unsure in his recall of quite significant events relevant to the appellants' cases. He gave some ambiguous and inconsistent evidence. He could not remember with any accuracy what gifts he delivered to the appellants from their mother. He was entirely unsure as to whether he had personally sent any money to the appellants. He thought, but was by no means sure, that he might at one stage have given the mother some money to send to the appellants.
By a determination promulgated on 21 August 2019, FtT Judge Lloyd comprehensively rejected the appellants' factual and evidential cases. The Judge said:-
“28. I do not find the evidence given to this tribunal by the Sponsor, her uncle Mr Bakare together with the letter from Mrs Olasunbo to be credible. I believe that a contrived account of acute mistreatment of the Appellants in Nigeria has been advanced as a means of supporting an outside the rules application by the Appellants based on alleged exceptional circumstances.
29. I do not believe that the Appellants would have been placed in the care of the Sponsor's ex-husband and his family, including his mother. If what the Sponsor says were true the prospect of the mistreatment must have been known to the Sponsor at the time. I conclude that the circumstances of her leaving her former husband and fleeing to the UK were such that if she had thought that his abusive treatment would extend to his two daughters she would never have left them in his care; and more especially for so long a time. It is in my view no explanation for the Sponsor to say that she did not think that the process of her securing asylum in the UK would take so long. If the Appellants had been in the dire circumstances which she suggests, or if she had even feared that might happen, she would and could have taken action to make alternative arrangements for them in Nigeria long before her asylum was granted, and the subsequent application was made outside the rules.”
The Judge went on to give detailed reasons for his rejection of the appellants' case that (a) they were financially and emotionally dependent on their mother; (b) their father had flogged them, and passed money intended for their support to their grandmother; (c) their grandmother had abused them when the father was away; (d) their father had made repeated calls to them, putting them under pressure to return to him; (e) they were in circumstances of destitution and vulnerability in Nigeria, and/or (f) likely to be destitute; and (g) could not safely or reasonably return to the care of their father. He considered the appellants' appeals to be predicated on the false assumption that because the relationship between the mother and her husband had been toxic, so too must their relationship with their father and in turn the grandmother.
The Judge found on the balance of probabilities that (1) the appellants' circumstances were not treated with any urgency at all; (2) the fact that their applications were left until they were over 18 and no longer complied with the Rules was indicative of that fact; (3) the husband had been in agreement with the mother that his daughters should join her in this country; (4) there had been “a concerted attempt to present deliberately a picture of pending destitution”.
As to the law, the Judge concluded:
“42. … having regard to the evidence at this appeal I do not accept that the...
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