Upper Tribunal (Immigration and asylum chamber), 2014-07-10, IA/30889/2013
| Jurisdiction | UK Non-devolved |
| Date | 10 July 2014 |
| Published date | 25 September 2014 |
| Hearing Date | 03 July 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/30889/2013 |
Appeal Number: IA/30889/2013
Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30889/2013
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 3 July 2014 |
On 10 July 2014 |
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Before
Deputy Upper Tribunal Judge Pickup
Between
Amina Gad-Asomaning
[No anonymity direction made]
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the claimant: Mr R Arkhurst, instructed by ROCK Solicitors
For the respondent: Ms K Pal, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
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The claimant, Amina Gad-Asomaning, date of birth 13.11.87, is a citizen of Ghana.
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This is the appeal of the Secretary of State against the determination of First-tier Tribunal Judge Seifert, who allowed the claimant’s appeal on human rights grounds against the decision of the Secretary of State, dated 9.8.13, to refuse her application made on 14.1.13 for leave to remain in the UK outside the Immigration Rules on compassionate grounds with reference to articles 3 and 8 ECHR, and to remove her from the UK.
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The First-tier Tribunal Judge heard the appeal on 23.10.13, but the decision was not promulgated until 4.2.14.
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First-tier Tribunal Judge Astle granted permission to appeal on 7.4.14.
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Thus the matter came before me on 13.5.14 as an appeal in the Upper Tribunal. As set out in my decision, promulgated on 15.5.14, I found there was an error of law in the making of the decision of the First-tier Tribunal such that the determination of Judge Seifert should be set aside. I set the decision of the First-tier Tribunal aside and adjourned the continuation hearing, reserved to myself. In doing so, I preserved the findings of fact of the First-tier Tribunal and gave leave to the claimant to adduce further evidence to bring her circumstances up to date and in particular as to the health of her daughter.
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In summary, I found that the First-tier Tribunal Judge went straight from considering private life under paragraph 276ADE to an article 8 ECHR proportionality assessment, without considering whether there were compelling circumstances not sufficiently recognised in the Immigration Rules to justify doing so. The judge failed to follow the approach set out in the prevailing case law, including MF (Nigeria) in the Court of Appeal, and Gulshan in the Upper Tribunal, judgements promulgated before that of the First-tier Tribunal. I also found that in the light of MM (Zimbabwe), in conducting the article 8 proportionality assessment undue weight had been placed on the claimant’s health issues, which were and remain insufficient to cross the article 3 threshold, as conceded by Mr Arkhurst.
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My error of law decision is annexed to this determination.
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Thus the matter was relisted before me on 3.7.14. The representatives agreed that as the facts were preserved there was no need for any further oral evidence and the matter could proceed by way of submissions.
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In addition to the immigration history set out in refusal decision and the First-tier Tribunal decision, the other preserved findings of fact include the following:
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That the claimant and Mr Ayeni both entered the UK illegally and have no legal basis to remain;
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That the claimant and Mr Ayeni were in a genuine relationship as partners, had developed a private life in the UK, and have two children born in the UK in 2008 and 2012;
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That the claimant is HIV positive and has a treatment regime at public expense under the NHS (to which she is not in fact entitled) and that her drug treatment regime is not available in Ghana but that her condition does not reach the article 3 threshold;
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That the evidence of the claimant and Mr Ayeni as to her medical and emotional condition, their children, their home and family circumstances, and social connections is credible, to the extend that family and private life in the UK has been established;
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That neither the claimant nor Mr Ayeni provided a complete account of their work histories in the UK or their relationships with claimed family members;
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That the claimant had not shown that she had no ties to Ghana, including family, social and cultural. She spent the formative years of her life in Ghana;
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That removal directions have been given for removal to Ghana or Nigeria and that if returning to either country the family would be returning together;
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It follows from the above that the family would not be split up by the Secretary of State’s decision, but removed together either to Ghana or Nigeria.
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Pursuant to section 55 of the Borders Citizenship and Immigration Act, I have to take into account as a primary consideration the best interests of the two children, born in the UK but Nigerian citizens. Whilst a primary consideration it is not necessarily the paramount consideration and is not a trump card over all other considerations.
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In her submissions, Ms Pal referred me to Azimi-Moayed and others (decisions affecting children; onward appeals) [2013] UKUT 00197 (IAC) in relation to the approach to the best interests of children.
(1) The case law of the Upper Tribunal has identified the following principles to assist in the determination of appeals where children are affected by the appealed decisions:
i) As a starting point it is in the best interests of children to be with both their parents and if both parents are being removed from the United Kingdom then the starting point suggests that so should dependent children who form part of their household unless there are reasons to the contrary.
ii) It is generally in the interests of children to have both stability and continuity of social and educational provision and the benefit of growing up in the cultural norms of the society to which they belong.
iii) Lengthy residence in a country other than the state of origin can lead to development of social cultural and educational ties that it would be inappropriate to disrupt, in the absence of compelling reason to the contrary. What amounts to lengthy residence is not clear cut but past and present policies have identified seven years as a relevant period.
iv) Apart from the terms of published policies and rules, the Tribunal notes that seven years from age four is likely to be more significant to a child that the first seven years of life. Very young children are focussed on their parents rather than their peers and are adaptable.
v) Short periods of residence, particularly ones without leave or the reasonable expectation of leave to enter or remain, while claims are promptly considered, are unlikely to give rise to private life deserving of respect in the absence of exceptional factors. In any event, protection of the economic well-being of society amply justifies removal in such cases.
Onward appeals
(2) Duties to have regard as a primary consideration to the best interests of a child are so well established that a judge should take the point for him or herself as an obvious point to be considered, where the issue arises on the evidence, irrespective of whether the appellants or the advocates have done so.
(3) Although in some cases this may require a judge to explore whether the duty requires further information to be obtained or inquiry to be made, the judge primarily acts on the evidence in the case. Where that evidence gives no hint of a suggestion that the welfare of the child is threatened by the immigration decision in question, or that the child’s best interests are undermined thereby, there is no basis for any further judicial exploration or reasoned decision on the matter.
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In all the circumstances, given the ages and limited life in the UK, I do not find that there are in this case developed social cultural or educational ties that it would be inappropriate to disrupt in the absence of compelling circumstances to the contrary.
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I bear in mind that given their ages the children’s life will have revolved around the claimant and Mr Ayeni. Only the older child will have had any schooling in the UK. I find that their best interests are clearly to remain with their mother and Mr Ayeni, whether in the UK, Nigeria, or Ghana. I have taken into account the recent information as to their health. However, they are young and will be able to quickly adapt to life with the family outside the UK. It is obvious that they come nowhere near close to meeting the requirements under paragraph 276ADE for private life in the UK, nor has it been shown that it would be unreasonable to expect them to accompany their mother on her removal from the UK.
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Without needing to set out reasons in detail, bearing in mind the concessions made by Mr Arkhurst, it is obvious and I so find that the claimant has failed to demonstrate that she meets either the requirements of Appendix FM or paragraph 276ADE of the Immigration...
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