Upper Tribunal (Immigration and asylum chamber), 2018-08-28, HU/16419/2016 & Others
| Jurisdiction | UK Non-devolved |
| Date | 28 August 2018 |
| Published date | 10 September 2018 |
| Hearing Date | 30 July 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/16419/2016 & Others |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/16419/2016
HU/18289/2016
HU/18293/2016
HU/18294/2016
THE IMMIGRATION ACTS
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Heard at Field House On 30th July 2018 |
Decision & Reasons Promulgated On 28th August 2018 |
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Before
UPPER TRIBUNAL JUDGE JACKSON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And
BAA
EAF
EAF
IAF
(ANONYMITY DIRECTIONs MADE)
Respondents
Representation:
For the Appellant: Ms J Isherwood, Home Office Presenting Officer
For the Respondents: First Appellant, in person
DECISION AND REASONS
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The Secretary of State appeals against the decision of First-tier Tribunal Judge Rowlands promulgated on 14 February 2018 in which the appeals against the decision to refuse the applications for leave to remain on the basis of family and private life dated 13 June 2016 were allowed. For ease I continue to refer to the parties as they were before the First-tier Tribunal, with the First Appellant and her three children as the Appellants and the Secretary of State as the Respondent.
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The Appellants are all nationals of Nigeria, born on 16 February 1982, 10 June 2008, 31 October 2009 and 16 December 2014 respectively. The First Appellant is the mother of the remaining Appellants, who are three of her four children. The First Appellant claims to have entered the United Kingdom on 28 April 2002 with a visa valid for six months. She has remained unlawfully in the United Kingdom ever since and only sought to regularise her stay here on 23 July 2010 when an application was made for leave to remain on the basis of private and family life, albeit initially rejected, it was resubmitted and then refused on 26 October 2010. A review was requested, which was refused and a further application made on 5 July 2012 which was refused on 22 August 2013. An application made on 7 October 2015 was also rejected and on 21 December 2015 a statement of additional grounds was received by the Respondent which was treated as a further application for leave to remain. The other, Appellants are all children who were born in the United Kingdom and have remained here without any leave to remain since.
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The Respondent refused the application on 13 June 2016 on the basis that none of the Appellants could meet the requirements of the Immigration Rules, either under Appendix FM or paragraph 276ADE. In relation to Appendix FM, paragraph EX.1 was given express consideration and it was accepted that the First Appellant was in a genuine subsisting parental relationship with the other three Appellants, one of whom had resided in the United Kingdom for over seven years and was therefore a qualifying child, however, it was not considered unreasonable to expect the children to leave the United Kingdom as part of the family unit. There would be no language barriers on return and the First Appellant, as a Nigerian national who had resided there for 20 years, could assist with integration.
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In relation to the First Appellant’s private life, she did not meet the residence requirements set out within paragraph 276ADE, nor was it considered that there would be any very significant obstacles to her reintegration into Nigeria because she has spent the majority of her life there and would have retained cultural ties. As to the private lives of the three child Appellants, all were Nigerian citizens who would be returning as a family unit and able to integrate into Nigeria without any language barriers. The youngest child was only two years old and would not therefore have formed any meaningful relationships outside of the immediate family. The First Appellant would be able to maintain her children in Nigeria and provide for their safety and welfare. There is a functioning educational system available to the child Appellants in Nigeria and a healthcare system which could be accessed if needed. There was a lack of evidence of any current medical conditions or treatment in relation to the child Appellants. The best interests of the children were considered under section 55 of the Borders, Citizenship and Immigration Act 2009 with a conclusion that it would be in the children’s best interests to remain with their mother and to return to Nigeria.
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Judge Rowlands allowed the appeal in a decision promulgated on 14 February 2018, purportedly on “immigration grounds”, a point to which I return below. In essence, the First-tier Tribunal found that it would be unreasonable to expect the child Appellants to relocate to Nigeria because they had spent all of the lies in the United Kingdom and know no other society or culture and have no connection with Nigeria other than it being the birth place of their parents.
The appeal
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The Respondent appeals on three grounds as follows. First, that the First-tier Tribunal erred in law in treating the best interests of the children as the primary consideration and failing to balance these against the public interest in this case, including the First Appellant’s poor immigration history and the family’s financial dependence on the state. Secondly, that the First-tier Tribunal erred in law in failing to make any findings on whether the child Appellants had a genuine and subsisting relationship with their father, what if any level of contact they had with him and how this impacted, if at all on their assessment of the best interests and whether it was reasonable to expect him to leave the United Kingdom. Thirdly, that the First-tier Tribunal failed to give adequate reasons for its conclusion that it would be unreasonable to expect the child Appellants to leave the United Kingdom.
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Permission to appeal was granted by Judge Davies on 12 June 2018 on all grounds.
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At the oral hearing, Ms Isherwood on behalf of the Respondent relied on the written grounds of appeal and made further oral submissions. In particular, she highlighted that there were no findings made in relation to the child Appellants’ relationship with their father, with contradictory evidence before the First-tier Tribunal as to their relationship. The Appellants’ case being that they had little contact with the father, who has no status in the United Kingdom, but the medical evidence referred to parents in the plural and involvement of ‘dad’ which suggested full involvement and called into question the First Appellant’s credibility. The First-tier Tribunal failed to engage with these points at all made no findings as to this relationship, which was a relevant material consideration to the assessment of reasonableness.
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Further, although the First-tier Tribunal referred to the cases of MA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 705 and EV (Philippines) v Secretary of State Stayed for the Home Department [2014] EWCA Civ 874, the guidance contained therein was not followed in the findings reached in these appeals. In particular, there was evidence before the First-tier Tribunal of the availability of education and health care facilities in Nigeria; it was not for the Respondent to contradict the Appellants’ claim to have no family or property in Nigeria and the adverse immigration history and reliance on public funds were relevant factors which should have also been taken into account when assessing the reasonableness of the child Appellants leaving the United Kingdom.
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Ms Isherwood accepted that an application for naturalisation had been made in relation to the eldest child, the Second Appellant. This application had been made after the decision of the First-tier Tribunal and could not therefore be relevant to the error of law stage of this hearing. If the decision of the First-tier Tribunal was set aside, the outcome of this application would however be relevant and could be taken into account if made by the time of any future hearing.
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The First Appellant attended the hearing person as although she has legal representatives on record in relation to the appeals, she was unable to afford representation for this hearing. She provided evidence of the application for naturalisation by the Second Appellant and essentially sought the mercy of the Upper Tribunal based on what she described as a challenging family situation with three of her children having significant health problems. She also described a somewhat turbulent relationship with the children’s father but some involvement from him to help with looking after the three children to carry out his role as a parent, such that he was told to do certain things in relation to their medical problems.
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I explained to the First Appellant the role of the Upper Tribunal in determining whether the has been an error of law in the First-tier Tribunal’s decision and what evidence can be taken into account in that regard. The First Appellant made no further submissions in relation to the decision of Judge Rowlands specifically.
Findings and reasons
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The First-tier Tribunal’s decision sets out the Appellants’ claim and evidence, including immigration history and the Respondent’s reasons for refusal. The findings of fact are not clearly distinguished from a recitation of the evidence and submissions but appear to be contained in paragraphs 18 to 20 which state as follows:
“18. The family circumstances are now clearly set out. The first Appellant appears to be claiming that she is a single parent who is reliant on...
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