Upper Tribunal (Immigration and asylum chamber), 2019-05-01, HU/12204/2017
| Jurisdiction | UK Non-devolved |
| Date | 01 May 2019 |
| Published date | 02 July 2019 |
| Hearing Date | 11 April 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/12204/2017 |
Appeal Number: HU/12204/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/12204/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 11 April 2019 |
On 1 May 2019 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE SYMES
Between
VIVIAN [O]
(ANONYMITY ORDER NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr L Youssefian (for Wimbledon Solicitors)
For the Respondent: Mr I Jarvis (Senior Presenting Officer)
DECISION AND REASONS
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This is the appeal of Vivian [O], a citizen of Nigeria, born 24 May 1999, against the decision of the First-tier Tribunal of 23 July 2018 dismissing her appeal, itself brought against the refusal of her human rights claim of 3 October 2017.
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The Appellant was granted entry clearance to study in the UK on 17 September 2016. Following her arrival she made an application for indefinite leave to remain on the basis of being the adopted child of a settled parent, her aunt [HE], a British citizen. Her aunt’s husband [OE] has leave to remain until 13 April 2019.
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The background facts to her adoption were based on her mother ([SO]) having had a severe stroke in 2005 meaning she could not move her right side, and her father being seriously injured in a car accident leaving him with brain damage. They had been reduced to destitution and lived on the streets in rural towns near Benin City. She had younger siblings who she claimed were cared for her by her grandmother, Victoria; however, Victoria did not have the capacity to care for the Appellant too. Victoria had helped with her daily care when she was younger.
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In the UK she lived with the Sponsor, Ms [E], whose maternal aunt was the Appellant's grandmother. Ms [E] had adopted the Appellant under Nigerian law. She had broken ties with her parents subsequently.
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Her application was refused because the Secretary of State was not satisfied that the adoption order was legally effective as only [SO] was named therein as the adopting parent, the Appellant was now aged over 18, the Sponsor was married and thus did not have sole responsibility for the Appellant's welfare, and there was no evidence that the adopting party had been assessed as eligible and suitable to adopt from overseas by an adoption agency in the UK. Nor did the evidence satisfactorily demonstrate that there were no other relatives to care for the Appellant.
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The First-tier Tribunal noted that the Sponsor earned over £24,000 annually, had paid off her mortgage on her home, and had savings exceeding £21,000. The most relevant evidence before it given the disposition of the appeal was:
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Of the adoption:
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An undated letter from the Appellant’s parents consenting to the adoption, from a city address and written after her arrival in the UK; and
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An Order from the Magistrates Court in Nigeria of 26 October 2016 recording a magistrate making an adoption order in the Sponsor's favour.
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Of the Appellant's mother’s health: a letter from the management board of the Central Hospital, Benin City, of 24 August 2017, from the principal medical officer, stated the Appellant's mother was receiving physiotherapy and incapable of performing her normal duties following a stroke in 2005.
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The Sponsor’s witness statement set out that she visited Nigeria regularly to check on the welfare of the Appellant's relatives. She had visited Victoria in 2015, discovering that Victoria would contact the Appellant's parents when that was necessary by tracking them down on the streets, which could take days. The Sponsor had made the responsible decisions in the Appellant's life since she was aged around six years old, for example insisting that she continued with her schooling when her parents wanted her to start work. The Appellant had become withdrawn and depressed since the refusal.
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The First-tier Tribunal did not accept the historical facts advanced by the Appellant. The documents leading to the adoption order had not been produced. The Order did not mention the Appellant’s father and the supporting evidence underlying that application had not been produced to the First-tier Tribunal; the Appellant and Sponsor were absent (so thought the Judge below), though a probation officer was present.
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The medical evidence relating to the parents was of unknown provenance. The Sponsor could have found out more about the family problems in Nigeria given her frequent visits there and it was not credible that were things as bad as claimed that further enquiries would not have been made; accordingly her claim to have last had contact with them in December 2017 was not believed.
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There were thus no serious and compelling reasons indicating that exclusion was undesirable. The nearest comparator Rule was that addressing adult dependent relatives and the Appellant’s case fell far short of the care threshold therein. Given her credibility findings, the Judge did not accept there was family life between the Appellant and Sponsor. The Appellant had not lived in the UK for long and had done so over a period when her leave was precarious given she only held short-term student leave.
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Grounds of appeal contended that
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A material error of fact had been committed given that the records of the adoption hearing in fact included information which the First-tier Tribunal seemed to have overlooked;
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It was not tenable to hold against the Appellant the fact that the letter from her parents bore a city address given that the letter was undated;
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There had been no cross examination of the Appellant such as to make it clear the degree to which her evidence was in issue;
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The Appellant had not stated she had last had contact with her parents in 2017, but in September 2016 and evidence had been overlooked as to the steps she had taken to track down her parents via enquiries of other relatives;
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The Judge had made findings without an evidential basis, as where he considered it unlikely the Appellant's mother would still be receiving treatment many years after her stroke;
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The existence of family life had been rejected without reference to the evidence regarding the Appellant's dependency on the Sponsor or the fact that the latter had had sole responsibility for her upbringing for a significant period.
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The First-tier Tribunal granted permission to appeal on 10 January 2019 given the evidence indicating that the Appellant's mother may have been present at the adoption hearing.
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Before me Mr Jarvis for the Secretary of State took a pragmatic stance, explaining that there were clearly difficulties with the reasoning of the First-tier Tribunal. Even aside from the question as to whether or not a fair procedure was adopted, there was no clear evidential basis for the finding that the Appellant’s account was undermined by an undated letter giving a city address, and it was wrong to speculate as to the duration of medical treatment following a stroke. Mr Youssefian stressed that these flaws were truly fundamental ones.
Findings and reasons
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I accept that there were indeed material errors of law in the decision of the First-tier Tribunal. It is useful to set out the relevant Immigration Rules in order to put the human rights claim in context. Although the refusal letter cited a child migration route under Appendix FM, that does not seem to be especially relevant, given that the Rules on adoption are so much more on point.
“Requirements for indefinite leave to remain in the United Kingdom as the adopted child of a parent or parents present and settled in the United Kingdom
311. The requirements to be met in the case of a child seeking indefinite leave to remain in the United Kingdom as the adopted child of a parent or parents present and settled in the United Kingdom are that he:
(i) is seeking to remain with an adoptive parent or parents in one of the following circumstances:
…
(c) one parent is present and settled in the United Kingdom and has had sole responsibility for the child’s upbringing; or
(d) one parent is present and settled in the United Kingdom and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; … and
(ii) has limited leave to enter or remain in the United Kingdom, and
(a) is under the age of 18; or
(b) if aged 18 or over, was given leave to enter or remain with a view to settlement under paragraph 315 or paragraph 316B and has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom in accordance with Appendix KoLL; and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) can, and will, be accommodated and maintained adequately without recourse to public funds in accommodation which the adoptive parent or parents own or occupy exclusively; and …
(vi)
(a) was adopted in accordance with a decision taken by the competent administrative authority or court in his country of...
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