Upper Tribunal (Immigration and asylum chamber), 2019-11-19, HU/18848/2018 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 19 November 2019 |
| Published date | 05 February 2020 |
| Hearing Date | 06 November 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/18848/2018 & Ors. |
Appeal Numbers: HU/18848/2018; HU/18850/2018; & HU/18852/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/18848/2018
HU/18850/2018
HU/18852/2018
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 6 November 2019 |
On 19 November 2019 |
|
|
|
Before
UPPER TRIBUNAL JUDGE KEITH
Between
‘ASA’
‘OEA’
‘AIA’
(ANONYMITY DIRECTION MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
By virtue of the third appellant being a child, unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. Failure to comply with this direction could lead to contempt of court proceedings.
Representation:
For the Appellants: Mr Z Jafferji Counsel, instructed by Oasis Solicitors
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer
DECISION AND REASONS
-
These are the approved record of the decision and written reasons which were given orally at the end of the hearing on 6 November 2019.
-
This is the remaking of the decision in the appellants’ appeals against the respondent’s refusal of their human rights claims.
-
The appellants, citizens of Nigeria, sought leave to remain in the United Kingdom (the ‘UK’) on the basis of their human rights, specifically their right to a private and family life. The respondent refused their claims in a decision dated 24 August 2018 (the ‘Refusal Letter’).
-
On 29 May 2019, First-tier Tribunal Judge P-J S White (the ‘FtT’) dismissed the appellants’ appeals against the refusal of the appellant’s human rights claims. The central issue was whether it would be reasonable to expect the third appellant, as a ‘qualifying child’ within the meaning of the Nationality, Immigration and Asylum Act 2012, to leave the UK. While the FtT concluded that it would be in the best interests of the third appellant to remain in the UK with his parents, that was not an end of the matter. The FtT concluded that it would be reasonable to expect the third appellant to return with his parents, rather than to separate him from them. The appellants appealed and asserted that by reference to MA (Pakistan) & others v SSHD [2016] EWCA Civ 705 and MT and ET (child’s best interests; ex tempore pilot) [2018] UKUT 00088 (IAC), powerful reasons were needed to justify removal of a ‘qualifying’ child and in particular, family and private was likely to deepen when the period of time spent by the child in the UK was at a later age, as in the third appellant’s case; and that any analysis should not blame the third appellant for his parents’ adverse immigration history.
-
This Tribunal, then comprising Upper Tribunal Judges Hanson and Keith, set aside the FtT’s decision, allowing the appeal, as set out in the error of law decision dated 2 October 2019 in the Annex to these reasons. We preserved the FtT’s conclusions that it would be in the best interests of the third appellant that he remains with his parents in the UK. The remaking hearing would therefore focus on the extent to which it would not be reasonable to expect the third appellant to leave the UK. Given the narrowness of the factual issues and the legal questions to be answered, we regarded it as appropriate that the Upper Tribunal should remake the FtT’s decision, based on the present conclusions, which we do so now.
The issue in this appeal
-
The sole issue in remaking the FtT’s decision is whether it would not be reasonable to expect the third appellant to leave the UK, for the purposes of section 117B(6) of the 2002 Act. It is accepted that the first and second appellants have genuine and subsisting parental relationships with the third appellant and that he is a ‘qualifying child’ for the purposes of the 2002 Act as he has lived in the UK for a continuous period of nine years, having entered the UK in July 2010, and his date of birth is 6 August 2005, so that he was 4 years old when he entered the UK and is now 14 years old, and is due to start his GCSE’s next year. In answering the question about whether it would not be reasonable to expect the third appellant to leave the UK, this is a hypothetical question, rather than an assessment of whether he would leave the UK. In answering the question, I should not have regard to his parents’ adverse immigration history, but at the same time, the assessment needs to be carried out on a ‘real-world’ analysis, noting that all of the appellants are Nigerian nationals who have never had settled leave to remain in the UK.
-
If it would not be reasonable to expect the third appellant to leave the UK, then there is no public interest in his parents’ removal, as they are not subject to deportation orders, so that all of the appellant’s human rights appeals would necessarily succeed.
The first appellant’s evidence
-
In terms of the documents, I was provided with the original hearing bundle, to which I do not refer in any detail except to the first appellant’s witness statement, which he readopted before me in this hearing; and a supplemental bundle, which included the first appellant’s second witness statement of 21 October 2019 and a number of other documents, which I have considered, even where I do not refer to them expressly.
-
In terms of the appellants’ evidence, the first appellant’s witness statements broadly outlined his prior immigration history and he accepted that he had entered the UK on a student visa in August 2016 aged around 30; had come to train as a chartered accountant through the ACCA qualification; and was joined by his wife, the second appellant in November 2008; and then by the third appellant in July 2010; and their subsequent children have since been born in the UK. The family live together at a privately rented address in Belvedere.
-
The first appellant works as a courier part-time dropping leaflets to houses and his wife sometimes provides catering for their church. He is registered as self-employed although, as he candidly accepted in oral evidence, his earnings are relatively low and he relies substantially on church members for both the family’s accommodation expenses and also their other living costs. The first appellant had previously been prevented from continuing with his studies in 2014 because the London School of Business and Finance would not agree to his continuing his studies without his leave to remain being extended and he was not able to successfully extend his leave.
-
In assessing the first appellant’s oral evidence, I found him to be a frank and credible witness who was willing to accept points that were not necessarily in his favour. As a consequence, I place significant weight on his evidence. By way of example, he confirmed that his mother continues to live in a suburb of Lagos, in a four-bedroom home and that there would be accommodation to which the appellants could return, if so required. He also accepted that he would be able to obtain work as a book-keeper in Nigeria, a role that he had carried out prior to coming to the UK, albeit based on his experience of having worked as a book-keeper, he did not believe that he would earn a sufficient income to support his wife and children, which was precisely the reason why his family in Nigeria had originally funded his studies in the UK, so that he could gain qualifications as a fully-qualified accountant.
-
He confirmed that his father sadly has passed away in January of 2018; his mother is retired, on a limited pension; his brother is near to retirement and has a family of his own to support and his only other sibling, a sister, is a housewife and is unable to financially support the appellants on their return to Nigeria.
-
The first appellant confirmed that while he himself had attended state education in Nigeria during his youth, his experience was that the Nigerian state school system had deteriorated substantially since, so that not only would the third appellant be required to repeat a year because of the transitional arrangements around the differently structured education system in Nigeria; but that the quality of that education would, whilst providing education at a basic level, be sufficiently poor that the family would need to actively consider whether to delay entry to the state school system and try and somehow to find the money to fund private education for the third appellant.
-
Similarly, with regard to the suburb in which the family would be returning, whilst the first appellant did not seek to overstate the matter and whilst the suburb in Lagos had been a good one when he left Nigeria, his evidence, having remained in contact with his family, is that, sadly, the suburb has deteriorated so it in general terms is not as safe as it once was.
The respondent’s submissions
-
The respondent’s submissions were, without any criticism of them, brief. Mr Tarlow submitted that the first appellant was fairly self-sufficient and had found work in the UK, but had also worked as a book-keeper in...
To continue reading
Request your trial