Upper Tribunal (Immigration and asylum chamber), 2015-06-09, IA/22120/2014 & ors
| Jurisdiction | UK Non-devolved |
| Date | 09 June 2015 |
| Published date | 21 August 2015 |
| Hearing Date | 12 May 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/22120/2014 & ors |
Appeal Numbers: IA/22120/2014
ia/22129/2014
ia/22131/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/22120/2014
ia/22129/2014
ia/22131/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 12 May 2015 |
On 9 June 2015 |
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Before
The HON Mr JUSTICE EDIS
DEPUTY UPPER TRIBUNAL JUDGE RIMINGTON
Between
Sharon Gabriel Egboigbe-Ade
Msr Emmanuel Francis Shanu-Abu
Miss Isabella Edowaye Toyin Shanu-Abu
(NO aNONYMITY DIRECTION MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr A Cooray, instructed by the Joint Council for the Welfare of Immigrants
For the Respondent: Miss A Fijiwala, Home Office Presenting Officer
DECISION AND REASONS
The Appellants
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The appellants are mother and two children, born on 19 December 1967, 7 September 2006 (the first child was 7 years old when the decision of the SSHD which is the subject of this appeal was made) and 20 December 2013 respectively and citizens of Nigeria. They appealed against the respondent's decision made on 2 May 2014 refusing them leave to remain in the United Kingdom further to Article 8 of the European Convention on Human Rights.
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The first appellant entered the United Kingdom as a visitor on 29 October 2004 but overstayed when her visit visa expired on 1 March 2005. Both the second and third appellants were born in the United Kingdom. The appellants' applications for leave were made on 21 October 2013. At the date of application the second appellant was over 7 years old.
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On 24 December 2013 the first appellant’s application was refused with no right of appeal but on 8 April 2014 the respondent wrote to request further information and then served the appellants with IS151A notices prior to refusing their applications. This gave a right of appeal, which the appellants exercised.
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The appellants’ appeals came before First-tier Tribunal Judge Metzer on 20th January 2015 and he proceeded to dismiss their appeals on human rights grounds on 29th January 2015.
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Application for permission to appeal was made on the basis that the second appellant fell clearly within the terms of the Enforcement Instructions and Guidance: Chapter 53 – Extenuating Circumstances. The introduction to this Guidance sets out the policy which it seeks to promote:-
“It is the policy of the Home Office to remove illegal migrants from the UK unless it would be a breach of the Refugee Convention or ECHR, or there are exceptional circumstances for not doing so in an individual case. Separate guidance exists on how to consider an asylum claim or an application for leave to remain on the basis of family or private life. This guidance concerns further exceptional circumstances claiming that removal would be inappropriate.”
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It was submitted that although the First-tier Tribunal judge referred to having had regard to Chapter 53 nothing in the determination elucidated her reasoning and the judge fell into error in omitting to make any clear findings on the matter which was at the heart of the appeal as argued. Had Chapter 53 been properly considered, it was likely the outcome would have been in their favour.
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It was asserted that Chapter 53 stated that exceptional circumstances must be considered where raised, and that an application fee was paid for the second appellant with the result that Chapter 53 should have been applied to the second appellant separately. The respondent was required to give due weight to the best interests of the children and the second appellant in particular because of his longer connection with the United Kingdom. The factors to be considered under Chapter 53 were that the second appellant had nothing standing against his character and he had not failed to comply with any requirement of him, and although he had never had leave to remain this had never been in his control. He had accrued seven years’ residence in the United Kingdom and the delay was not attributable to him.
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Moreover more weight should be attached to the length of time a child has spent in the UK compared with an adult. This was sufficient to bring the second appellant within the terms of the policy.
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Further as the respondent had never applied the policy to the second appellant the decision under Article 8 could not be in accordance with the law as any interference could not be proportionate when the second appellant clearly met the terms of the policy.
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Curiously the grant of permission to appeal made by First-tier Tribunal Judge Simpson, in response to the application, departed from the terms set out above but stated that the appellant's grounds were that
(a) the judge erred in failing to give reasons for dismissing the second appellant's appeal when the second appellant, a minor, had lived in the UK for more than seven years;
(b) the judge failed to consider whether there were exceptional circumstances meriting a grant of leave to remain.
Further, Judge Simpson found it was arguable that there was an error in law as the decision was silent as to EV (Philippines) & Others [2014] EWCA Civ 874 and there was only a cursory examination of the Razgar [2004] principles. The judge did not appear have to considered proportionality or the best interests of the children despite the guidelines in EA (Article 8 – best interests of the child) Nigeria [2011] UKUT 315 (IAC). There was no mention of paragraph 117A and B of the 2002 Act.
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At the hearing before us Mr Cooray expanded on his grounds of appeal and relied on those set out in writing. In essence it was wrong for the respondent not to consider the policy and it was wrong for the judge not to have considered the validity of the decision of the respondent against her own published policy.
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The Home Office Presenting Officer argued that the judge had taken into account the policy and even if there was an error by the respondent the judge had taken into account many other factors. The grant of permission to appeal made no reference to Chapter 53 but, all that taken into account, there would be no material difference to the decision.
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Ms Fijiwala submitted that the judge had not taken into account factors which would have been to the disadvantage of the appellants such as Section 117 and EV (Philippines). With regard to Section 117B(6) the judge had found that it was not unreasonable to expect the child appellants to leave the United Kingdom and it was clear the judge had taken into account the relevant case law. Even if the respondent had not considered the policy, the judge had.
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Mr Cooray, in reply, argued that the policy applied equally to the children as to the adult. The appellants were entitled to have a decision applicable to each one of them and although the applications were made jointly there were three different sets of facts and three different sets of fees paid. Mr Cooray asserted that there was nothing in Chapter 53 which excluded consideration of the children. If a child were an unaccompanied minor the policy would apply.
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At the hearing, Mr Cooray centred his challenge to the decision, on his written grounds for application for appeal, which we have described above. Nonetheless for completeness we also address the contents of the grant of permission which relates to the best interests of the children. The challenge relates primarily to the second appellant.
Conclusions
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There is no merit in the assertion that the judge failed to consider the Razgar [2004] UKHL 27 principles and an overall reading of the decision makes clear that the judge considered the proportionality and the best interests of the children. At [17] the judge accepts that the first and second appellants had established a right to a private life in the United Kingdom on the basis that “the first appellant having been in the United Kingdom for over ten years and on the documentary evidence the second appellant’s schooling in the United Kingdom”.
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The judge specifically referred to Razgar and set out the background to the appeal at [18]. He took into account the best interests of the children and, in essence, gave consideration to their welfare as a primary factor (ZH (Tanzania) (FC) (Appellant) v SSHD [2011] UKSC 4). He noted that the family would be returned together and would travel to Nigeria together [19]. He identified the key question in relation to the second appellant, further to Section 117(6), which was that the second appellant was educated here had lived continuously in the UK for at least 7 years, but nonetheless he found it would be reasonable to expect the second appellant to leave the UK for Nigeria albeit the second appellant had no knowledge of Nigeria. On an overall reading of the decision the judge made his reasoning clear that the second appellant could adapt to life in Nigeria. The judge also took into...
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