Upper Tribunal (Immigration and asylum chamber), 2016-01-15, IA/23187/2014 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 15 January 2016 |
| Published date | 13 September 2016 |
| Hearing Date | 17 December 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/23187/2014 & Ors. |
Appeal Numbers IA/23187/2014
IA/23193/2014
IA/23198/2014
& IA/23200/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers IA/23187/2014
IA/23193/2014
IA/23198/2014
& IA/23200/2014
THE IMMIGRATION ACTS
|
Heard at South Shields |
Decision and Reasons promulgated |
|
On 17 December 2015 |
On 15 January 2016 |
|
|
|
Before
The President, The Hon. Mr Justice McCloskey
and Upper Tribunal Judge Plimmer
Between
ABOLAGI SHAKIRU ISMAIL
THEODORA ENOOBONG ISMAIL
MERCY AYOMIKUN TEMITOPE INEMABASI ISMAIL
SAMUEL TOLUWANI ANIEKAN OPEOLUWA ISMAIL
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
Appellants: Mr J Walsh, of Counsel, acting pro bono.
Respondent: Mr J Parkinson, Senior Home Office Presenting Officer.
DECISION AND REASONS
Introduction
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This Tribunal, by its decision promulgated on 11 December 2104, concluded that the decision of the First-tier Tribunal (the “FtT”), dated 04 September 2014, was contaminated by material error of law and set same aside accordingly. The underlying decision is that of the Secretary of State for the Home Department (the “Secretary of State”), dated 08 May 2014, whereby the applications of the four Appellants for leave to remain in the United Kingdom under Article 8 ECHR were refused.
The Secretary of State’s Decision
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It is convenient to adopt [2] – [9] of the earlier decision of this Tribunal. These conjoined appeals originate in a decision dated 08 May 2014 made on behalf of the Secretary of State. The context of the decision is apparent from the opening passage:
“... You have asked that your case be considered under the [ECHR]. You claim it will breach your human rights to return you to Nigeria, a country which is listed in section 94(4) of the Nationality, Immigration and Asylum Act 2002.”
The case made by the Appellants was summarised by the decision maker in the following terms:
“You have stated that removal would be a breach of your human rights because you have established private life during your time in the United Kingdom, particularly your daughter ... who is now over seven years of age and has spent the whole of her life in the United Kingdom, so you do not feel it would be reasonable to expect her to leave the United Kingdom ...
[Further] you claim that you and your family have a fear of returning to Nigeria due to the fact that you no longer have any links to Nigeria, where there is a very high level of poverty and unemployment and poor standards of education and health care which would inflict physical and mental stress on the children and the family as a whole.”
The decision maker concluded, firstly, that the Appellants’ claims could not succeed under Appendix FM and paragraph 276ADE of the Immigration Rules. In particular, the assessment was made that the parents had submitted no evidence that they have lost all family, social and cultural ties with Nigeria. The parents’ evidence that both had attempted to find work there during the preceding three years was noted.
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It was acknowledged that the older of the two children had lived continuously in the United Kingdom for at least seven years. This triggered consideration of whether it would be “reasonable to expect [her] to leave the United Kingdom. The decision maker reasoned as follows:
“It is usually considered in the best interests of the child to remain in the family unit with their parents and siblings. The children would not be separated from their parents, as the family would be expected to return to Nigeria as a whole unit. Both you and your wife grew up in Nigeria and would be able to support the children in the family and outside in the wider community in order to help them to adapt to living in Nigeria and learning the language if required ... You and your wife have family living in Nigeria and they could also help and support the children to integrate into the way of life ...
[The older child] ... is young enough to adapt to the education system in Nigeria ... Primary education in Nigeria begins at six years of age and lasts for six years ... Education to junior secondary level (from 6 to 15 years of age) is free and compulsory ...
Neither child has any health problems. Any friendships formed in the United Kingdom can be continued from abroad by modern methods of communication ...
You have not submitted any evidence to show that [the older child] has formed exceptional bonds with anyone in the United Kingdom which would make it unreasonable to expect her to live in Nigeria ... [or] ... that there is exceptional physical or emotional dependency on other members of the family in the United Kingdom outside your immediate family unit.”
It is then stated that due consideration has been given to the needs and welfare of the children as required by Section 55 of the Borders, Citizenship and Immigration Act 2009 (the “2009 Act”). This is followed by a rehearsal of the factors put forward in support of the contention that it would be in the childrens’ best interests to remain in the United Kingdom. Stripped to its essentials, the case made was that this country provides a much better place for the education, care and development of the children than Nigeria. This case was rejected, essentially on the same grounds as the case advanced under the Immigration Rules
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Finally, the decision maker purported to consider the Appellants’ cases under the rubric of “exceptional circumstances”. The passage which follows appears to be directed to the first Appellant, the father of the family:
“You have attempted to obtain leave to remain using false documents and your wife obtained entry clearance by deception. You have remained in the United Kingdom beyond the period of granted leave to remain and your wife has remained beyond the period of granted leave to enter. You failed to bring your children under immigration control following their births, when you submitted applications for leave after they were born in the United Kingdom.”
The decision continues:
“You have not submitted any evidence that there are compelling compassionate circumstances which would lead to a grant of leave to remain because it would not be reasonable to expect the children to leave the United Kingdom. Education and health services are available in Nigeria, albeit not necessarily to the same standard as in the United Kingdom.”
In accordance with the usual practice, removal decisions were made in respect of all four Appellants one week later. Being immigration decisions, these attracted a right of appeal which the Appellants duly exercised.
Decision of the FtT
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The First-tier Tribunal the “FtT”) allowed the appeals. The basis of its decision is encapsulated in the following passage, in [89]:
“I am therefore satisfied that in the context of my findings set out above the Respondent’s removal decisions were not a proportionate and fair balance between the relevant competing considerations.”
The appeals were allowed under Article 8 ECHR accordingly
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The “findings set out above” in the determination are, on analysis, the following:
(a) The first two Appellants entered the United Kingdom legally, but have now over stayed following exhaustion of their application and appeal rights.
(b) (In terms) the Appellants’ extensive periods of residence in the United Kingdom is a weighty factor: see [48].
(c) The third and fourth Appellants, the children, have spent the whole of their lives in the United Kingdom and are integrated into UK society.
(d) The fourth Appellant has special educational requirements because of his elective mutism, giving rise to the need for speech therapy intervention.
(e) The parents have been lawfully present in the United Kingdom during most of their sojourn.
(f) The act of registering each child’s birth demonstrated “a willingness to engage with the authorities”.
(g) The two children “are positively thriving in a school with excellent pastoral care ... [and] ... clearly feel very much a part of the school community and are progressing well ... [and] ... the school and the surrounding community are parents and members of the congregation at church where they attend are extremely attached to the children and family as a whole”.
(h) “Every resource available to the teaching staff and pupils has been engaged for the benefit of these children”.
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Next, having referred to ZH (Tanzania) [2011] UKSC 4, the Judge reasoned that a period of substantial residence as a child may become a weighty consideration in the balance of competing factors because –
“During such a lengthy period of time roots are put down, personal identities are developed, friendships are formed and links are made with the community outside the family unit”.
The Judge then noted the periods during which the two children had been attending school, the parents’ heavy...
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