Upper Tribunal (Immigration and asylum chamber), 2017-08-07, AA/05798/2015
| Jurisdiction | UK Non-devolved |
| Date | 07 August 2017 |
| Published date | 12 September 2017 |
| Hearing Date | 19 July 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/05798/2015 |
Appeal Number: AA/05798/2015
Upper Tribunal (Immigration and Asylum Chamber)
Appeal Number: AA/05798/2015
THE IMMIGRATION ACTS
|
Heard at Birmingham Employment Tribunal |
Decision promulgated |
|
on 19 July 2017 |
on 7 August 2017 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
OPF
(Anonymity direction made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Miss Dhaliwal instructed by Genesis Law Associates Ltd
For the Respondent: Mrs H Aboni Senior Home Office Presenting Officer
ERROR OF LAW DECISION AND REASONS
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This is an appeal against a decision of First-tier Tribunal Judge Ford promulgated on 27 February 2017 in which the Judge dismissed the appellant’s appeal on all grounds.
Background
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The appellant is a national of Nigeria born on [ ] 1974. The appellant entered the United Kingdom in 2004 lawfully as a student, with leave extended until it expired in early 2006. The appellant’s wife entered the United Kingdom as a visitor in 2006. The appellant and his wife met after she entered the United Kingdom. They started their relationship after the appellant’s leave had expired.
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The appellant’s first child E was born in the UK on [ ] 2007, their second child EI was born in the UK on [ ] 2010, their third child EIO was born in the UK on [ ] 2013, and their fourth child OOF was born in the UK on [ ] 2016.
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An application to regularise the appellant’s status was made on 25 November 2011, seeking leave to remain on human rights and humanitarian protection grounds, which was refused on 22 May 2012. On 7 June 2013, the appellant applied for leave to remain on human rights grounds with his wife and children as named dependents. On 21 August 2013, the appellant applied for asylum with his wife and children as dependents. The applications made in 2013 were refused in a decision dated 18 March 2015 which is the subject of the appeal before the Judge.
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Having considered the evidence with the required degree of anxious scrutiny the Judge sets out her findings of fact from [39] to [79] of the decision under challenge, which can be summarised in the following terms:
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The appellant delayed significantly in making this claim for asylum waiting from 2006 until 2011 until he made his first application to regularise his stay following the birth of his children [39].
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This is not a case that turns on credibility issues. The respondent delayed in the decision-making process but no prejudice to the appellant or his wife was made out as they benefited from the support given within the education system in the UK for children with special educational needs and for health care provided by the NHS. The appellant has made no financial contribution to the cost of his children’s care or their education and nor have he or his wife made any financial contribution to the cost of her four caesarean sections or for the support she has received for all her pre-or postnatal care [40].
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The appellant worked illegally in the United Kingdom from 2006 onwards and only stopped working when it became clear to his employer he had no permission to do so [41].
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The appellant and his wife has secured additional educational qualifications in the UK including accountancy qualifications, health and social care NVQs and additional qualifications for the security industry [42].
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The appellant’s wife is a qualified primary school teacher in Nigeria [43].
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It was accepted neither the appellant’s family nor his wife’s family in Nigeria are accepting of their two older sons who have autism [44].
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It was not accepted either the appellant’s family or his wife’s family intended to do any harm to the autistic children but if they did there was no real risk they would achieve their intentions [45].
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The appellant and his wife are caring parents who are very supportive of their children and intent upon meeting the children’s needs. They have learned a lot about the support of their two sons who have autism. E suffers from severe autism requiring a high level of educational support which he receives in a special school he attends in the UK [45].
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There was no estimate of how much E’s placement costs the public purse although the Judge has judicial knowledge from sitting in another jurisdiction that the cost of such specialist placement runs into tens of thousands of pounds per annum [46].
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EI attends mainstream school and there is insufficient evidence to establish he has been assessed as needing a specialist placement. The child receives additional teaching assistance at school as well as input from a special education needs teacher and speech and language therapy services. There is no up-to-date evidence from the school as to how they are coping with his special education needs and progress he is actually making [47].
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In relation to EIO, the Judge was not satisfied he has a diagnosis of autistic spectrum disorder at the present time. The child uses an inhaler. The Judge was not satisfied on the evidence that such medication was not available in Nigeria [48].
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In relation to OOF, the Judge was not satisfied the medication she requires is not available in Nigeria [49].
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The appellant’s wife suffers from depression. In late December/early January 2017 she decided to leave the two younger children on their own in the family home when she went to collect the two older children. As a result, social services became involved although the outcome of their investigation was that there were no ongoing protection concerns [50]
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Whilst accepting the appellant’s wife has been in receipt of antidepressants there was no evidence to conclude such medication was not available in Nigeria [51].
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The appellant claimed asylum asserting the family face a real risk of persecution in Nigeria because the two older children suffer from autism and also claim to be at real risk of persecution on account of their religious beliefs as Christians [52].
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The appellant’s wife lived in Lagos before coming to the UK and claims her former husband threatened her after he learned she had fallen pregnant by the appellant after coming for a visit in 2006 [53].
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Few details of threats have been provided [54].
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The appellant grew up in Ibadan, Oyo State where he studied in the local polytechnic [55].
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The appellant and his wife have family members in Nigeria [56].
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The move to Nigeria will be contrary to the best interests of E and have a detrimental impact upon him causing him distress, anxiety and upset. As a severely autistic child changes to his routine might be distressing. A move to Nigeria will mean his special educational needs will not be as well supported as they are in the UK [57].
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E will not only have to face changing his schooling, his home and his community, but also be removed from the only society has known since birth in the UK. E has some understanding of Yoruba and the Judge was not satisfied that his understanding of this language was significantly worse than his understanding of English [58].
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E has an understanding of Yoruba as both his parents speak this language [59].
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EI has less severe autism but also severe delay in his understanding of language and social communication skills. The Judge was not satisfied on the evidence that he requires a placement in a special school [60]. EI’s best interests are to be permitted to remain at his present school in his present home and community without disturbance. He was born in the UK and has lived here throughout his life [61].
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None of the children have lived in the UK for seven years prior to the date of application [62].
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Neither the appellant nor his wife or children can be returned safely to the north-east of Nigeria or the Niger Delta or to Akwa Ibom State where they would face an unacceptably high level of risk due to their religious beliefs and the children’s autism in these areas [63].
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The Judge was not satisfied the same level of risk exists elsewhere in Nigeria. Whilst the appellant provided evidence a placement at a specialist autism school in Abuja was unaffordable he had not provided evidence to show a placement at Pacific School in Lagos will be unaffordable or of equal cost to the special school in Abuja. Nor has he provided evidence to contradict what is stated in the refusal letter that the appellant and his wife could seek assistance from the Zamarr Institute in Abuja who provide specialist autism associates, or to...
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