E-A (Article 8: Best Interests of Child: Nigeria)

JurisdictionUK Non-devolved
JudgeSenior Immigration Judge Jarvis
Judgment Date22 July 2011
Neutral Citation[2011] UKUT 315 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date22 July 2011

[2011] UKUT 315 (IAC)

Upper Tribunal (Immigration and Asylum Chamber)

Blake J, President and Jarvis SIJ

E-A (Article 8—Best Interests of Child) Nigeria
Representation

Mr M Rudd instructed by Gulbenkian Andonian Solicitors, for the Claimant;

Ms D Cantrell, Senior Home Office Presenting Officer, for the Secretary of State.

Cases referred to:

Holub and Holub v Secretary of State for the Home Department [2000] EWCA Civ 343; [2001] 1 WLR 1359; [2001] Imm AR 282; [2001] INLR 219

LD (Article 8—best interests of child) Zimbabwe [2010] UKUT 278 (IAC); [2011] Imm AR 99; [2011] INLR 347

NA and Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031

ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 WLR 148; [2011] 2 All ER 783; [2011] Imm AR 395; [2011] INLR 369

Legislation judicially considered:

Borders, Citizenship and Immigration Act 2009, section 55

European Convention on Human Rights, Article 8

Human rights — Article 8 of the ECHR — right to family and private life — best interests of the child — a first and primary consideration — very young children — intra-family bonds — ability to adapt — expectation of return —ZH (Tanzania)[2011] UKSC 4 applied

The Claimants, citizens of Nigeria, were a family consisting of husband, wife and two young children. The first Claimant entered the United Kingdom in 2004 as a student. The second and fourth Claimants entered in 2005 as the dependent child, then aged six months, and wife of the first Claimant. The third Claimant was born in the United Kingdom in 2006. The Claimants were granted periods of leave to remain as a student and dependent family members until August 2008. Further leave was granted until September 2010 when the first Claimant obtained leave as a Tier 1 (Post-Study Work) Migrant.

The Claimants applied for an extension of stay. The Secretary of State for the Home Department refused the applications as she was not satisfied that leave to remain was being sought for a purpose covered by the Immigration Rules or that there were any exceptional, compelling or compassionate circumstances to justify granting leave to remain outside the Rules. She also concluded that, while the Claimants might have established a private and family life in the United Kingdom, they would be returning home as a family and any interference was justified in the interests of immigration control.

On appeal, the Immigration Judge was referred to case law which stated that a child's right to education whilst in the United Kingdom did not carry with it the right to remain in the country. The Judge noted that the second Claimant was in her first year at primary school and that the third Claimant was born in the United Kingdom but concluded that the children were of an age where they would be able to re-adapt to life in Nigeria. Accordingly, the Judge dismissed the appeal, holding that the Secretary of State's decision did not breach the Claimants' rights to family and private life under Article 8 of the ECHR.

Before the Upper Tribunal, the Claimants submitted that the Judge had failed to apply the guidance in ZH (Tanzania) v Secretary of State for the Home Department[2011] UKSC 4 and in particular had failed to treat the best interests of the children as a first and primary consideration.

Held, dismissing the appeal:

(1) The Judge's general conclusion that the children were of an age where they would be able to re-adapt to life in Nigeria was unsupported by reasons and overlooked the fact that the older child would have little or no memory of Nigeria, having left at the age of six months, and the younger child had never lived in Nigeria. Accordingly there was a material misdirection and analysis of the best interests of the children entirely through the prism of the right to education was too narrow an approach. The decision would be set aside and remade (paras 28–29).

(2) The correct starting point in considering the welfare and best interests of a child would be that it was in the best interests of a young child to live with and be brought up by his or her parents, subject to any very strong contra-indication. Where it was in the best interests of a child to live with and be brought up by his or her parents, then the child's removal with his parents did not involve any separation of family life. Here, the parents and children were Nigerian. The parents came for the temporary purpose of study by the first Claimant and neither they nor the children had any basis of expectation that they would be allowed to make their future home in the United Kingdom. The children had no connection with the United Kingdom through nationality or any other nexus independent of being part of the parents' household. There was also no evidence to suggest that the return of the children to Nigeria placed them at any risk of harm or prejudice to their welfare (paras 35–36).

(3) Absent other factors, the reason why a period of substantial residence as a child might become a weighty consideration in the balance of competing considerations was that in the course of such time roots were put down, personal identities were developed, friendships formed and links made with the community outside the family unit. The degree to which those elements of private life were forged and therefore the weight to be given to the passage of time would depend upon the facts in each case. While the children had been in the United Kingdom for a considerable amount of time, the nature and degree of private life that they had forged was still of a personal, intra-family nature (paras 39–40).

(4) During the period of residence from birth to the age of four, a child would be primarily focused on self and the caring parents or guardian. Long residence after that age, when a child was likely to have formed friendships outside the family, would have greater impact on the well-being of the child. Although a move to Nigeria required some adaptation to a new home, new school and church, there was no reason why it would not be a positive experience for the children who would be supported by their parents. Furthermore, apart from their parents, the children had no family members in the United Kingdom, whereas they had both sets of grandparents and no doubt other relatives in Nigeria (paras 41–42).

(5) It was important to recall that although the Claimants might have been in the United Kingdom lawfully, they came for a temporary purpose with no expectation of being able to remain in the country. The expectation was that they would all return to Nigeria once the first Claimant's studies were completed. Those who had their families with them during a period of study in the United Kingdom had to do so in the light of the expectation of return (para 43).

(6) The Supreme Court in ZH (Tanzania) did not rule that the ability of a young child to adapt readily to life in a new country was an irrelevant factor but that adaptability was not a conclusive consideration on its own. In the instant case, the expectation had always been that they would in due course have to change their place of residence and adapt. The fact that the children had lived in the United Kingdom all or most of their lives and were expected to move to a country they did not yet know did not make the move to Nigeria disproportionate. There must be individual consideration and assessment of best interests in each and every case. Requiring the Claimants to return to Nigeria was justified by the public interest of maintaining firm and fair immigration control and was a proportionate measure and a fair balance between the competing interests (paras 45–49).

Determination and reasons

Senior Immigration Judge Jarvis:

The Facts

[1] The appellants, citizens of Nigeria, whose dates of birth are given as 6 January 1968; 14 April 2005; 8 November 2006, and 2 April 1979 respectively, shall be referred to as the first, second, third and fourth appellants in this determination. They appeal against decisions of Immigration Judge Gurung-Thapa, who dismissed the appellants' appeals on human rights grounds pursuant to Article 8 ECHR, in a determination issued on 31 January 2011.

[2] The immigration history of the appellants is this. The first appellant entered the UK on 30 November 2004 as a student. The second and fourth appellants entered the UK on 27 October 2005 in possession of valid entry clearance as the dependents of their student father/husband, with leave until 4 February 2006.

[3] The first, second and fourth appellants were granted periods of leave to remain as a student and his dependent family until 31 August 2008, as was the third appellant, following her birth in the UK on 8 November 2006.

[4] A further period of such leave was granted to the appellants from 17 September 2008, when the first appellant was granted leave as a tier 1 post study work migrant under the points based system (PBS), to 17 September 2010.

[5] The fourth appellant is qualified as a lawyer in Nigeria where she had worked as a lawyer before coming to the UK in 2005. She took steps to take the Qualified Lawyers Transfer Test (QLTT) to enable her to practise as a solicitor in England and Wales, passing the necessary...

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