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

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

[2011] UKUT 315 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Mr Justice Blake, President

Senior Immigration Judge Jarvis

Between
O E-A
O O. E-A
O O. E-A
I E-A
Appellants
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Mr M Rudd, instructed by Gulbenkian Andonian Solicitors

For the Respondent: Ms D Cantrell Senior Home Office Presenting Officer

E-A (Article 8 — best interests of child) Nigeria

  • (i) The correct starting point in considering the welfare and best interests of a young child would be that it is in the best interests of a child to live with and be brought up by his or her parents, subject to any very strong contra-indication. Where it is 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 does not involve any separation of family life.

  • (ii) Absent other factors, the reason why a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations is that in the course of such time roots are put down, personal identities are developed, friendships are formed and links are made with the community outside the family unit. The degree to which these elements of private life are forged and therefore the weight to be given to the passage of time will depend upon the facts in each case.

  • (iii) During a child's very early years, he or she will be primarily focused on self and the caring parents or guardian. Long residence once the child is likely to have formed ties outside the family is likely to have greater impact on his or her well being.

  • (iv) Those who have their families with them during a period of study in the UK must do so in the light of the expectation of return.

  • (v) The Supreme Court in ZH (Tanzania) [2011] UKSC 4 was not ruling that the ability of a young child to readily adapt to life in a new country was an irrelevant factor, rather that the adaptability of the child in each case must be assessed and is not a conclusive consideration on its own.

DETERMINATION AND REASONS
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 examinations and then seeking the required work experience. She did not, however, complete the necessary period of work experience as Lloyds bank, for whom she had been working, were unable in the event to sponsor her as a tier 2 PSB applicant. As it was too close to the expiry of her leave by the time she discovered the inability of Lloyds to sponsor her, she made the application that became the subject of her appeal. The Immigration Judge finds that it was by no means certain that the fourth appellant would have succeeded in a tier 2 application even if there had been a sponsor and sufficient time in which to lodge it.

6

The Secretary of State refused applications for an extension of stay on 26 October 2010. The respondent 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 so that the applications fell to be refused under para 322(1) of HC 395 (as amended). She went on to consider the applications under article 8 ECHR, taking the view that whilst the appellants may have established a private and family life in the UK, they would all be returning home together as a family. The state having the right to control entry of non-nationals into its territory, it did not follow that an individual could choose where to enjoy private life, and any interference with the private lives of the appellants was justified in the interests of immigration control.

The Immigration Judge's decision
7

The Immigration Judge noted that the first appellant had failed to produce any certificates to show that he had been awarded an MSc Information Technology as claimed. In addition, she took into consideration that the appellants were all granted leave to remain on the strength of the first appellant's claimed qualification of post graduate diploma in business management dated July 2008 (p62 appellants' bundle) from the Cambridge College of Learning (CCOL). He also lodged a transcript of his academic record at CCOL which states that he commenced the course in October 2007 and finished in July 2008. The judge took into account the guidance of the Tribunal in NA and Ors (Cambridge College of Learning) Pakistan [2009] UKAIT 00031 in which it was held that the CCL never ran any such course and that a person relying upon a certificate of such an award will be making a false representation and will fall foul of para 322(1A) of the Immigration Rules. Without going so far as to find that the first appellant does fall foul of para 322(1A), the judge concludes that the case law guidance is contrary to his evidence and that his credibility is thereby adversely affected.

8

The Immigration Judge took into consideration the evidence going to private life outside of work in the UK. The first and fourth appellants are said to be active members of the Lovesoul Choir and have raised money for charity. The first appellant is said to be a volunteer teacher at Covenant Life Ministries where the second and third appellants attend Sunday school. The second appellant has been a pupil at the Holy Family Catholic Primary School, Southampton, since 3 September 2009. The third appellant has attended the Trust Taplins Childcare Learning Centre nursery since 2 February 2009.

9

The Immigration Judge concluded that the first and fourth appellants are well educated individuals. The first appellant has worked for a considerable period of time in Nigeria in the IT field. He has a registered business in the UK, but it is not operational. He has a business in Nigeria in partnership. The first appellant is qualified as a lawyer and has been employed as such in Nigeria. She has added to her work experience whilst in the UK. Both have their parents in Nigeria and the appellants have visited Nigeria since having come to the UK. There are siblings, most of whom appear to be abroad. There was no reason why the first and fourth appellants would not be able to take up work again in Nigeria, whether in their own businesses or as employees.

10

As for the second and third appellants, the judge deals with their appeals at para 29 of her determination. She was referred by the respondent to the case of Holub and Anor v SSHD [2000] EWCA Civ 343, stating that it was held that a child's right to education whilst in the UK does not carry with it the right to stay here. The Immigration Judge noted that whilst the respondent must take into consideration any educational difficulties it is said that a child will suffer if returned to the country of origin as part of the compassionate grounds for granting exceptional leave, she is not obliged to take a view as to whether the child's right under article 2 of Protocol 1 will be infringed there.

11

The Immigration Judge noted that the second appellant was in her first year at primary school and that the third appellant, (who was at nursery), was born in the UK. However, noting that the whole family would return home together, she finds that the second and third appellants are of an age where they will be able to re-adapt to life in Nigeria. There are English speaking schools and they would attend such a school or schools, following which, any problems they may have had in understanding the accents of their grandparents in the course of visiting Nigeria, or visits by the grandparents to the UK, would soon be overcome.

12

The Immigration Judge concluded that the respondent's decision entailed no breach of family and private life rights of any of the appellants.

13

The First-tier Tribunal granted permission to appeal on 7 April 2011 only in relation to ground 2 of the grounds:

“Ground 2 refers to ZH (Tanzania) [2011] UKSC 4. It is arguable that in her assessment of the effect on the children of removal the Immigration Judge does not give effect to the principle of the centrality of the welfare of the children as set out in ZH(Tanzania), and to that extent it is arguable that the Immigration Judge made a material error of law.”

Appellants' Submissions
14

Mr Rudd on behalf of the appellants submitted a written skeleton argument dated 12 July 2011 on which he relied. It was accepted that the...

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