Upper Tribunal (Immigration and asylum chamber), 2016-02-02, IA/334862014 & ors
| Jurisdiction | UK Non-devolved |
| Date | 02 February 2016 |
| Published date | 01 November 2016 |
| Hearing Date | 15 December 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/334862014 & ors |
IA/33486/2014
IA/33494/2014
IA/33495/2014
IA/33498/2014
IA/33509/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/33486/2014
IA/33494/2014
IA/33495/2014
IA/33498/2014
IA/33509/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 15th December 2015 |
On 2nd February 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY
Between
K J J
K a D
S A D
S M a
H O D
(anonymity direction made)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Miss D Ofei-Kwatia instructed by
For the Respondents: Mr T Melvin, Home Office Presenting Officer
DECISION AND REASONS
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The Appellants are mother, father and their three children born on 5 August 2005, 14 May 2007 and 7 April 2012. They appeal against the decision of the Secretary of State, who on 6 August 2014 considered their claims under Article 8 of the European Convention on Human Rights both within and outside the Immigration Rules. In respect of the first and second Appellants consideration was given to the partner route and the parent route and the Secretary of State concluded that the requirements of neither route was met. The Secretary of State then went on to consider the first and second Appellants’ case under paragraph 276ADE(1) of the Rules and concluded that they could not meet the requirements in terms of the length of residence and had not demonstrated that there were very significant obstacles to integration into Nigeria.
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The applications of the three children were considered under the child route and a decision was taken in relation to their private life under paragraph 276ADE. The Secretary of State also concluded that they did not meet the requirements of leave to enter under the child route and that the requirements of paragraph 276ADE (iv) were not met. Consideration was also given as to whether there were exceptional circumstances which would mean removal was inappropriate and it was concluded that there were not. The Secretary of State also considered s55 of the Borders, Citizenship and Immigration Act 2009 and concluded that the family could return to Nigeria together and the children could be educated there.
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The Appellants appealed against that decision and in a determination dated 5 February 2015 First-tier Tribunal Judge Sweet allowed their appeals. The first and second Appellants had been in the UK illegally since 2006. The third, fourth and fifth Appellants were 9, 7 and 2 at the date of the hearing and were all born here. At paragraph 29 of the decision the First-tier Tribunal found that in the light of the evidence provided, both oral and documentary, the third Appellant met the requirements of paragraph 276ADE (iv) and the first and second Appellants met the requirements of paragraph 276ADE (vi).
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Permission to appeal was granted on 16 April 2015 by First-tier Tribunal Judge De Haney. Permission was granted on the basis that the First-tier Tribunal’s bare assertion at paragraph 29 that he was satisfied that the Appellants could meet the requirements of paragraph 276ADE was arguably inadequate to explain to the parties why one had won and the other had lost the appeal. He found that there was an arguable error of law.
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At a hearing on 8 September I concluded that there was a material error of law in the decision of the First-tier Tribunal. The First-tier Tribunal referred to the requirements of Section 55 of the Borders, Citizenship and Immigration Act 2009 and stated that he did not consider that it would be appropriate for the family to be separated and concluded that it would not be reasonable for them to return to Nigeria where there were “significant obstacles in their integrating into Nigerian society”. There were no reasons given for this conclusion. The short determination disclosed no findings justifying his conclusion that there would be very significant obstacles to the Appellants integrating into Nigerian society or indeed the reasonableness of expecting the children to return to Nigeria. There were no findings in relation to the extent of the Appellants’ integration into the UK or the extent of their ties to Nigeria.
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I determined that the appeals should be reheard in the Upper Tribunal.
Evidence and Submissions
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In the light of the fact that the eldest child had become a British Citizen on 7 December 2015 I heard submissions from both representatives as to how to proceed. Mr Melvin relied on MK (section 55 – Tribunal options) Sierra Leone [2015] UKUT 223 (IAC) and submitted that in the light of the change of circumstances, remittal to the Secretary of State for reconsideration and a fresh decision was appropriate. Ms Ofei-Kwatia submitted that the citizenship was not a surprise to the Respondent. The application was made in 2012 and there would be further delay if the matter was remitted. She submitted that there was sufficient material before the Tribunal to make a decision on the best interests of the children. I was satisfied that I was sufficiently equipped on the evidence before me to make an adequate assessment of the best interests of the children.
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The First Appellant adopted her witness statement before the First-tier Tribunal. She said that she was happy to be here and the children had family and friends here and enjoyed activities. If they had to return to Nigeria they would have no money for school fees, food and accommodation as they did not have any support. Her mother, father and older sister were there. Her partner had his mum, dad and one brother and one sister. She was living with her parents prior to coming to the UK. He rented an apartment. Her parents were not happy with her because she was pregnant out of wedlock. She would not be able to live with her partner’s parents because they did not want him to marry her. She had no savings or assets. Her son was in year 6 at primary school. Her second child was in year 4.
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Mr Melvin asked if there was anything preventing her return. She said her parents were preventing her. She had a Nigerian passport and came to the UK aged 26. She left school in 2005 and did not have a University education. She was in school until she was 25. She started late and had never had a job. She had a secondary school certificate. Whilst in the UK she went to people’s houses to do hair. She could not be a hair stylist in Nigeria because if you did not have money you could not do business. You had to do hair in salons. If she went to University she could get another job. Her parents could not support her. They had not talked to her. There was no one to sponsor her through university. Her partner worked for a construction company for three years in Nigeria. Since 2005 her family had not wanted her in Nigeria. She had not married as they had no parental support. Her family wanted her to abort the pregnancy and since then she had been staying here. They did not go elsewhere in Nigeria because they did not know anybody there. She did not get a house with her partner because he was not making money.
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They waited until they had children before trying to regularise their stay because a lot of people told them to do nothing and she was told after 7 years she could apply. Her uncle took her to a lawyer. He said you have to wait for seven years. She made no attempt to contact the authorities for 7 years. She had children at NHS hospitals and put children into government schools. She had not applied for any benefits. Her financial support came from her uncle and the little job she was doing. She did not live with her uncle and rented an apartment. Her uncle gave them £350 every month and she had money from her job. Her partner cleaned houses and ironed. He did not pay national insurance or tax. Mr Melvin asked if it would it be fair to say that she had deliberately avoided UK authorities and was using her children to make a claim to remain in the UK. She said it was not true because she didn’t know how this system worked. When her son was 6 her uncle took her to a lawyer. He said wait for seven years.
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There were state schools in Nigeria. The main language and education system was English. State education was free. You had to buy books. In re-examination she said that she started school at 7 years old and remained in school until the age of 25 because she repeated 3 classes twice. She was not allowed to enter into a customary marriage without consent. She was not in contact with her siblings. Her sister supported her parents and husband’s family and did not want him to marry her.
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I asked why her uncle could not send £350 to Nigeria. She said her uncle wanted her...
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