Upper Tribunal (Immigration and asylum chamber), 2016-01-06, IA/39440/2014
| Jurisdiction | UK Non-devolved |
| Date | 06 January 2016 |
| Published date | 17 August 2016 |
| Hearing Date | 17 December 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/39440/2014 |
Appeal No. IA/39440/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/39440/2014
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 17 December 2015 |
On 6 January 2016 |
|
|
|
Before
DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW
Between
MS ABIOLA HELEN PASEDA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE Secretary of State FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Mohammad Chaudhry Afzal, am agent instructed by International Immigration Advisory Services
For the Respondent: Mr D Clarke, a Home Office Presenting Officer
DECISION AND REASONS
Introduction
-
This is an appeal by the appellant against a decision of the First-tier Tribunal dismissing her appeal against a decision taken on 16 September 2014 to refuse her application for leave to remain in the UK under Article 8.
Background Facts
-
The claimant is a citizen of Nigeria who was born on 14 February 1982. She has a daughter, Stephanie Omotolani Damilola Paseda who was born in the UK on 2 September 2006. The appellant entered the UK illegally in November 2002. On 8 November 2010 she applied for leave to remain under the Immigration Rules HC395 (as amended) on the basis of private and family life. That application was refused with no right of appeal. On 21 March 2011 she applied for a reconsideration and on 28 May 2014 in response to a one stop notice was made by the appellant’s representative which resulted in a fresh decision on 16 September 2014 refusing the application, The reasons for refusal were that the respondent considered that it would be reasonable for both the appellant and her daughter to leave the UK and re-locate to Nigeria.
The Appeal to the First-tier Tribunal
-
The appellant appealed to the First-tier Tribunal. In a determination promulgated on 2 June 2015, Judge Paul dismissed the appellant’s appeal. The First-tier Tribunal found that the appellant was a vague and unsatisfactory witness and that her claims in relation to risk on return to Nigeria were not credible. The judge found that it would be perfectly reasonable for the appellant’s daughter to re-locate to Nigeria, there was no reason to believe that any interruption to her education would be significant or unduly harsh, Nigerian culture places a high premium on a good education. The judge found that the appellant had not demonstrated that she does not have close family, social or cultural ties with Nigeria.
The Appeal to the Upper Tribunal
-
The appellant sought permission to appeal to the Upper Tribunal. On 15 October 2015 First-tier Tribunal Judge Hollingworth granted the appellant permission to appeal. The grant of permission suggests that an arguable error of law has arisen in respect of the judge’s approach to s55. Thus, the appeal came before me.
Summary of the Submissions
-
The grounds of appeal and skeleton argument assert that the First-tier Tribunal judge and the respondent did not follow the case-law and Policy essentially arguing that 7 years is the relevant period for considering that lengthy residence can lead to the development of ties that it would be inappropriate to disrupt. It is asserted that the judge erred by failing to mention s55 of the Borders, Citizenship and Immigration Act 2009 (‘s55’) let alone fulfilling the duties imposed under it. It is also asserted that the case of Osawenze [2014] EWCA referred to by the judge is not applicable as the children were aged 4 and 1 in that case.
-
Mr Afzal submitted that EX.1 clearly doesn’t require a child to be a British Citizen. When a child has lived in the UK for over 7 years he/she attracts rights. The case of Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 197 (IAC) (‘Azimi-Moayed’) sets out that in the development of personal and social contacts there is a magic line drawn at 7 years when considering the private life of children. He submitted that when a child has lived in the UK for 7 years it must be considered to be in the child’s best interests under s55 to remain in the UK. The key test is the length of residence – the intention in the legislation is clear. Section 55 was brushed aside by both the respondent and the First-tier Tribunal judge. The wrong approach was taken by the Secretary of State. There was no consideration of the 2nd of the duties – to have regard to the statutory guidance which describes procedures and training. Paragraphs 1.14, 1.15, 2.6, 2.7, and 2.8 apply the most. In JO and Others (section 55 duty) Nigeria [2014] UKUT 00517 (IAC) it was held that it is necessary for the reviewing court to take cognizance of the guidance.
-
In relation to Stephanie Mr Afzal submitted that she is attending school, is well integrated. There are no health issues.
-
Mr Clarke submitted that there was no material error of law in the First-tier Tribunal decision. Regarding Azimi-Moayed he referred me to the headnote at point iv) – the first 4 ears of a child’s life are focussed on the parents. The period accrued by Stephanie is not 7 years it is the number of years from the age of 4. The material time accrues is 5 years. In MK and JO the failure to make reference to the guidance is not an error as long as the duty is complied with. The appellant has not referred to anything in the guidance that the Secretary of State has not complied with. He submitted that it is absolutely clear at paragraph 51 that the judge considered s55. He followed EV (Philippines) and Others v SSHD [2014] EWCA Civ 874 finding that it is perfectly reasonable that the child could re-locate. At paragraph 18 he considered the evidence and at paragraph 21 the judge looked at the educational position. At paragraph 19 the judge considered risk on relocation finding the appellant’s account was not credible. The judge applied a reasonableness test and applied Azimi-Moayed. As set out in the case of Dube (ss.117A – 117D) [2015] UKUT 90 (IAC) there is no need to refer to s117 as long as the factors are taken into account. At paragraph 24 the judge considered AM Malawi finding that it does not tip the balance. It is difficult to see how the judge can be said not to have dealt with s117. Paragraph 15 is a reiteration of the respondent’s submissions it is not the judge’s own reasoning in relation to the case of Osawenze.
-
In reply Mr Afzal submitted that the requirement is for a period of 7 year’s residence. That cannot be split between periods when the child is under and over 4 years of age.
Legislative Provisions
Nationality and Immigration Act 2002 (‘NIA Act’)
-
As from 28 July 2014 statutory provisions in a new Part 5A of the 2002 Act (inserted by s.19 of the Immigration Act 2014) requires, in legislative form for the first time, the Tribunal to take certain factors into account when determining whether a decision made under the Immigration Acts breaches respect for private and family life. The decision in the instant case is a decision made under the Immigration Acts. The relevant provisions provide:
-
Section 117A sets out the scope of the new Part 5A headed “Article 8 of the ECHR; Public Interest Considerations” as follows:
‘117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).’
-
The considerations listed in s.117B are applicable to all cases and are:
‘117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to...
To continue reading
Request your trial