Upper Tribunal (Immigration and asylum chamber), 2020-01-14, HU/23979/2018 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 14 January 2020 |
| Published date | 05 March 2020 |
| Hearing Date | 20 November 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/23979/2018 & Ors. |
Appeal Numbers: HU/23979/2018
HU/23946/2018
HU/23951/2018
HU/23971/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/23979/2018
HU/23946/2018
HU/23951/2018
HU/23971/2018
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 20th November 2019 |
On 14th January 2020 |
|
|
|
Before
UPPER TRIBUNAL JUDGE RIMINGTON
Between
mr GGL (First Appellant)
mrs TUL (Second Appellant)
mr CDL (Third Appellant)
miss PML (fourth appellant)
(aNONYMITY DIRECTION made)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Ms S Iqbal, Counsel instructed by W H Solicitors
For the Respondent: Mr S Walker, Home Office Presenting Officer
DECISION AND REASONS
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings. The order is made because there are minors involved.
-
The appellants appealed against the determination of the First-tier Tribunal dated 12th November 2018 dismissing their appeal against the Secretary of State’s refusal of their human rights claim on 12th November 2018.
-
The appellants, Nigerian nationals born in 1984 and 1985, are husband and wife and their two children born in 2015 and 2018. The first appellant entered the United Kingdom as a student in 2011 and his wife entered as his dependent in 2014. Their leave expired on 18th October 2017 but on 22nd September 2017, they made an application on human rights grounds for leave to remain which was refused and ultimately generated this appeal.
-
The grounds of appeal to the Upper Tribunal were as follows
-
that the judge had gone beyond the limitation of the grounds of appeal to the First-tier Tribunal and failed to properly consider the human rights claim. It was accepted that no protection claim was made and that the claim was limited to human rights grounds only and that was a matter which was confirmed by Counsel at the hearing. That, however, did not mean that the events on which proper and credible protection claim could have been made were irrelevant and the claim was based on those same events which should have been considered against a different test, that being paragraph 276ADE. The events referred to and relied on were such that there would be very significant difficulties to their return and integration in Nigeria. The judge failed to determine all matters raised by the appeal and it was arguable that the outcome of the appeal may have been different had the judge considered the appeal within the context of the Rules.
-
the judge failed to have regard to relevant policies which rendered the decision potentially unlawful. The judge failed to have regard to the Secretary of State’s policies and give anxious scrutiny to the human rights claim as there was no reference to the Secretary of State’s policy document.
-
there was a material misdirection on material matters. The judge was required to apply the correct threshold when considering whether Article 8 of the ECHR was engaged. Failure to refer to the Secretary of State’s relevant policy documents and country information provided a significant barrier to the judge’s ability to conduct the required best interests test. In giving substantial weight to the public interest question and maintaining immigration control the judge failed to give any consideration to the absence of any public interest removal from the UK of those genuine and subsisting parental relationships with a qualifying child and failed to have regard to the importance of freedom of expression.
-
The judge gave inadequate reasons. The first appellant made specific reference to the EASO report of Country Guidance: Nigeria (AB261 to 322) as supporting his assertions and the judge provided no reasons for failing to give any weight to this document. Insofar as the judge’s comments regarding “bare assertions of difficulties” may relate to employment, the Secretary of State’s own policy documents on internal relocation the Country of Origin Information Report: Nigeria March 2019 (see paragraph 4.1.1 AB345) CPIN (AB339 to 353) referred to another EASO report, and would therefore fall for disclosure in its own right and added weight to the EASO report. The socio-economic report corroborated the first appellant’s supposedly bare assertion with regards to the difficulties obtaining employment, the rising trend in unemployment. Another EASO report regarded the targeting and individuals in Nigeria and provided further background information regarding the indigene settlers issue relevant to the human rights claim.
Analysis
-
I take the grounds together as they are intertwined.
-
At paragraph 2 the judge recorded at the outset of the appeal that the appellant’s representative, Mr Mupara, made clear that he was only seeking to argue the appeal on the basis of Article 8 ECHR outside of the Immigration Rules. He made plain that he was not seeking to rely on private life provisions of the ECHR within the Rules.
-
Although the grounds and the submissions of Ms Iqbal submitted that the judge should have considered paragraph 276ADE with reference to very significant obstacles it was made clear that the protection issue was not pursued. Indeed, as the judge records at paragraph 4 of his determination the appeal was not being argued within the Immigration Rules either but outside those Rules.
“On behalf of the First Appellant it was argued that his circumstances and those of his family were exceptional and that it was appropriate to look at Article 8 outside of the Rules” [4].
-
The Record of Proceedings of the hearing on 21st June 2019 record that exactly and state, “No protection claim” “only outside the Immigration Rules”.
-
In passing, I observe that that submission itself indicates that there were no very significant obstacles to return to Nigeria, as encapsulated by the Immigration Rules at Paragraph 276ADE(1)(vi). This particular rule sets out as follows:.
‘276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
…
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK’.
-
It is not open to the appellant once the representative has specifically declined to rely on Paragraph 276ADE (vi) to raise it again in the grounds of appeal.
-
The judge, nevertheless, appropriately directed himself in relation to the relevant case law, in particular R (Agyarko) [2017] UKSC 11 and KO (Nigeria) [2018] UKSC 453. R (Agyarko) [2017] UKSC 11 emphasises the test of ‘unjustifiably harsh consequences’ to be applied when considering a challenge under Article 8 on human rights grounds the refusal of leave to remain or removal. That is the test the judge clearly applied.
-
It is not made out, from a careful reading of the decision as a whole, that the judge failed to consider all the relevant factors. The judge at paragraph 7, found the first appellant had visited various countries since his birth in 1984 because his father was a diplomat and had returned to Nigeria from time to time between the ages of 17 to 27 years. (He is now in his thirties). He had various family members such as his mother father and sibling who lived partly in Nigeria and partly in Senegal. His wife also had relations in Nigeria. The first appellant was a mechanical engineer, with a PhD from Brunel University and with work experience and his wife an architect who also had work experience.
-
The judge noted that he had regard to all of the evidence and there is no indication that the judge failed to consider the Country Policy Information Note on Nigeria March 2019 and the references within the reports to poor socio economic factors could hardly be said to apply to the appellants bearing in mind their high degree of education and work experience. Indeed, the CPIN referenced that Nigeria had made significant progress in socio economic terms since 2005.
-
There is no doubt that the judge did address the points made regarding difficulties in securing employment and considered the evidence in the round and gave adequate reasoning for his findings. This can be gleaned from the consideration at paragraph 7 that: -
“The First Appellant has been...
To continue reading
Request your trial