Upper Tribunal (Immigration and asylum chamber), 2016-10-05, IA/29196/2014 & Others
| Jurisdiction | UK Non-devolved |
| Date | 05 October 2016 |
| Published date | 27 July 2018 |
| Hearing Date | 08 June 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/29196/2014 & Others |
Appeal Numbers: IA/29196/2014
IA/29204/2014, IA/29213/2014
IA/29219/2014, IA/29224/2014
IA/29231/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/29196/2014,
IA/29204/2014, IA/29213/2014,
IA/29219/2014, IA/29224/2014,
IA/29231/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 8 June 2016 |
On 5 October 2016 |
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Before
LORD TURNBULL OF THE COURT OF SESSION
SITTING AS A JUDGE OF THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE PERKINS
Between
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gn e |
First Appellant |
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o o e |
Second Appellant |
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s c e |
Third Appellant |
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f i e |
Fourth Appellant |
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f d e |
Fifth Appellant |
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d c c e |
Sixth Appellant |
(ANONYMITY DIRECTION made)
Appellants
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Miss M Sirikanda, Solicitor, Ahmed Raheman Carr
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer
DECISION AND REASONS
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Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 we make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the appellants. Breach of this order can be punished as a contempt of court. We make this order because the case concerns the welfare of children and they are entitled to privacy.
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This case comes before us following a transfer order. It has previously been heard by Deputy Upper Tribunal Judge G A Black who found an error of law and set aside the decision of the First-tier Tribunal. She gave reasons for that finding in a Decision and Reasons sent to the parties on 21 April 2016. A copy is appended hereto.
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Deputy Judge Black also ordered the Respondent to file and serve any written submissions within 14 days of her decision that there was an error of law being sent to the parties. No such submissions were sent.
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The Appellants appeal a decision of the Respondent on 9 July 2014 to remove them from the United Kingdom. It is the Appellants’ case that their removal would contravene the United Kingdom’s obligation under the European Convention on Human Rights and, more particularly, that the Third, Fourth and Fifth Appellants were entitled to remain under paragraph 276ADE of HC 395 because, at the date of application, they had lived in the United Kingdom continuously for at least 7 years and it would not be reasonable to expect them to leave. We note that the application was originally made on 3 April 2013 and reconsidered on 9 July 2014. The decision of 9 July 2014, the decision of the First-tier Tribunal that Deputy Judge Black has set aside and Deputy Judge Black’s Decision and Reasons all considered the case on the basis that the Third, Fourth and Fifth Appellants were entitled to consideration under paragraph 276 ADE. We deduce therefore that the reconsidered decision assumed a date of application that brought those Appellants within the rule. Clearly it is too late now to go behind that and Mr Bramble did not seek to change the Respondent’s position.
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There were written submissions before the Upper Tribunal dated 4 April 2016 and an addendum to those written submissions from the Appellants provided to us the day before the hearing.
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The Appellants are all members of the same family and are citizens of Nigeria. The First and Second appellants are married to each other. The First Appellant was born in 1966 and she is the wife of the Second Appellant who was born in 1960.
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It is clear that the First and Second Appellants entered the United Kingdom with permission. The First Appellant entered as a visitor in September 2005 and left during the currency of her leave. She returned in February 2006 shortly before her leave lapsed and remained. The Second Appellant was given entry clearance as a visitor on several occasions, most recently in October 2008. Although the First and Second Appellants’ appeal may well be subject to the same decision as the appeals of the other Appellants, their circumstances are rather different from those of the other four Appellants who are their children. Put simply, the First and Second Appellant have exhibited an irresponsible attitude to immigration control. That cannot be said of their children.
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The decision letter dated 9 July 2014 states, correctly, that neither the First nor the Second Appellant are eligible for leave to remain as parents because they are not settled lawfully in the United Kingdom. Nevertheless, the letter accepts, unremarkably, that the First and Second Appellants are in a genuine and subsisting parental relationship with minor children who are in the United Kingdom and have been for a least seven years immediately preceding the application.
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It is the Respondent’s contention that it would not be unreasonable to expect the children to leave the United Kingdom.
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The Third Appellant was born in January 2002 and the Fourth Appellant was born in April 2004. They entered the United Kingdom in September 2005. It follows that the Third Appellant is now 14 years old and has lived in the United Kingdom for very nearly nine years. The Fourth Appellant is now 12 years old and has lived in the United Kingdom for nearly seven years. The Fifth and Sixth appellants have lived all their lives in the United Kingdom. The Fifth Appellant was born in September 2006 and so is now about 10 years old. The Sixth Appellant was born in August 2011 and so is now 5 years old.
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This is not a case where we have the benefit of an independent social worker’s report or other objective evidence about the family. It appears to us, and is not in dispute, that the Appellants live together as a nuclear family which is generally happy and supportive. There are school reports and supporting letters from a Church pastor, a youth club and a sports club.
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The evidence points to the family members having made their home in the United Kingdom and much of their social life is enjoyed through associations that they have made at a local independent evangelical church. It is to the discredit of the First and Second Appellants that they have established a private and family live in the United Kingdom knowing that they have been there without leave. That point aside (we will return to it below, it is not insignificant) we know nothing to their discredit. Further, as far as we are aware, there are no obvious compelling reasons that make it particularly desirable for them to remain in the United Kingdom. For example, these are not appeals by people with particular medical, educational or social needs.
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The Appellants remind us that we are obliged by Section 55 of the Borders, Citizenship and Immigration Act 2009 to make the best interests of the children a prime consideration. We cannot do that without ascertaining what we find their best interests to be.
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In the absence of contrary pointers, we regard it as clearly in the best interests of the minor Appellants to live with their siblings and parents and that family unity is, generally, a more compelling factor than the financial and other advantages of remaining in the United Kingdom. Nevertheless, the evidence points to the children being settled there and we have no doubt that as far as each child is concerned it is in that child’s best interests to remain in the United Kingdom with the rest of his family if that can be achieved lawfully. It does not follow from this that the appeals will be allowed because children cannot always have their best interests satisfied but we must bear in mind as a primary consideration that that is where their best interests lie.
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We also find that the children have little for them in Nigeria. There is a supplementary statement from the second appellant saying that the children have “minimal understanding of our local language in Nigeria”. The Second Appellant explained that he and his wife tried to teach their children the language but there is no opportunity to speak it outside the home and they have little incentive to learn. Although the evidential basis for this claim is exceedingly thin, consisting of little more than an unsigned statement, we accept it because it is so inherently plausible. The parents do not suggest the children have no knowledge of a local language in Nigeria or that they could not learn it, but assert and we accept, that they do not presently speak a Nigerian language.
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We have read and considered the oral and written submissions and have considered the evidence mentioned there include statements and letters from the Third, Fourth and Fifth Appellants. Again the claims are unremarkable and all the better for not being exaggerated.
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We accept that the Third Appellant is doing well at school and details are given of his successful involvement in the national “Magistrate’s Mock Trial Competition” and to his being a useful goalkeeper. He is also involved in church work.
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His sister, the Fourth Appellant, is a...
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