Upper Tribunal (Immigration and asylum chamber), 2016-12-05, HU/00899/2015 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 05 December 2016 |
| Published date | 19 October 2020 |
| Hearing Date | 17 November 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/00899/2015 & Ors. |
Appeal Numbers: HU/00899/2015
HU/00900/2015
HU/00902/2015
HU/00903/2015
Upper Tribunal Appeal Numbers: HU/00899/2015
(Immigration and Asylum Chamber) HU/00900/2015
HU/00902/2015
HU/00903/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision and Reasons Promulgated |
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On 17th November 2016 |
On 05th December 2016 |
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Before
UPPER TRIBUNAL JUDGE GLEESON
Between
OSKK and others
(anonymity order made)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr E Ikwuazom, instructed by Ernst Law Solicitors
For the Respondent: Mr E Tufan, a Senior Home Office Presenting Officer
DECISION AND REASONS
Anonymity
The First-tier Tribunal made an order pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I continue that order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008: unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall identify the original appellant, whether directly or indirectly. This order applies to, amongst others, all parties. Any failure to comply with this order could give rise to contempt of court proceedings.
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This is the appeal of a husband and wife and their two minor children, all Nigerian citizens, who have permission to appeal against the decision of the First-tier Tribunal Judge (Hatton Cross hearing centre) dismissing their appeals against the respondent’s decision to refuse them leave to remain in the United Kingdom on the basis of their private and family life in the United Kingdom.
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The principal appellant came to the United Kingdom in 2004 on a multiple-entry visit visa, valid until 13 August 2006. He overstayed. The principal appellant was arrested in November 2005, on suspicion of handling stolen goods, but gave an alias. He was notified in that identity of his liability to detention and granted temporary admission, and in February 2006, he absconded. In September 2006, having not embarked, he was again encountered working illegally and given temporary admission again, in the alias identity. He absconded, and returned to Nigeria. An application for a further 5-year multi-entry visit visa in August 2006 was refused.
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The principal appellant entered the United Kingdom in February 2008, with the second appellant, who must have been pregnant, because on 2 July 2008, the third appellant was born in the United Kingdom. It is their case that they have not left the United Kingdom since February 2008. The visit visa on which they entered expired on 11 December 2009. On 9 February 2010, the fourth appellant was born.
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Human rights applications for leave to remain were made in October 2010 (refused with right of appeal) and July 2011 (refused, no right of appeal). In May 2012, the appellants sought a reconsideration of the latter decision.
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On 22 August 2013, the principal appellant was arrested in possession of a false employee identity document for the London Underground, which would have enabled him to work on the underground. It is his case, which the respondent has never disputed, that although he possessed the document he had not used it. The principal appellant gave his own name on arrest, but a fingerprint match linked him to the alias previously used for his stolen goods and illegal working arrests. The appellant was convicted of possessing or controlling articles for use in fraud, and received a community sentence (60 hours unpaid work). He did not receive a custodial sentence.
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The appellant chased the outstanding reconsideration request in May 2014, June 2014 and April 2015. On 28 April 2015, the respondent served him with form RED.0001 notifying him of his immigration status (or lack thereof) and liability to detention and removal. The status of the second, third and fourth appellants is that of dependents in the principal appellant’s application, and they also now have no leave to remain and are liable to detention and removal to Nigeria.
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The appellant appealed to the First-tier Tribunal which dismissed his appeal. The Judge considered the provisions of section 117B(6) and set out his views thereon at [22] - [25] in his decision. However, at [27], he said this:
“27. Having concluded that it would not be unreasonable to require the children to leave the United Kingdom, I go on to consider the position of the parents. For the reasons stated above, I find that they are unable to benefit from the provisions of section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (as amended). I recognise for the purposes of section 117B(2) that the mother and the father speak English. However, I find that section 117B(3) weighs against them as they are not financially self-sufficient and I consider that due to their relative lack of education and the father’s criminal record, they are likely to be dependent on benefits if granted leave to remain in this country.
28. However, I find that it is section 117B(1) that weighs most heavily against them. This provision highlights the fact that the maintenance of effective immigration control is in the public interest. In this case, the mother has never had any lawful basis for being in this country. The father has been in the country without leave for a number of years, has previously overstayed an earlier visit visa, and has failed to comply with reporting restrictions imposed on him in the past. …”
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The First-tier Tribunal dismissed the appeal. The appellants appealed to the Upper Tribunal. Leave to appeal was granted only in relation to ground 3 of the grounds, in which the appellants argued that the First-tier Tribunal had failed to consider section 117B(6) in relation to these appellants. The assertion that the principal appellant and his dependents cannot benefit from section 117B(6) is unexplained and is plainly wrong: the principal appellant’s is not a foreign criminal as defined by section 117D(2) of the 2002 Act, because his criminal conviction did not entail a period of imprisonment of at least 12 months, or cause serious harm, nor is it contended that he is a persistent offender. He is not subject to automatic deportation as a foreign criminal, pursuant to Section 32 of the UK Borders Act 2007.
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The provisions of section 117B(6) are applicable to the principal appellant’s circumstances. Section 117B, so far as relevant, is as follows:
“117B (1) The maintenance of effective immigration controls is in the public interest. …
(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.”
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Qualifying child is defined at section 117D(1) as:
“117D(1) In this Part - …
“qualifying child” means a person who is under the age of 18 and who—
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more; …”
The date when the period of 7 years falls to be assessed is the date of hearing: see MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705 at [13].
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It is not in dispute that the principal appellant (and indeed the second appellant) has a genuine and subsisting parental relationship with both his children, the third and fourth appellants. Both children are Nigerian, not British citizens, and were born in the United Kingdom. The elder child is now 8 years old. She is therefore a qualifying child under section 117D(1)(b).
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This application turns on the question whether it is reasonable for that child to leave the United Kingdom, applying section 117D. As seen above, the First-tier Tribunal Judge did consider that and reach the conclusion that it would be reasonable for both children, and in particular the qualifying child, to accompany their parents to Nigeria.
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I have been directed by Mr Ikwuazom to the consideration of section 117B by the Upper Tribunal in Treebhawon and others (section 117B(6)) [2015] UKUT 00674 (IAC), Rajendran (s117B – family life) [2016] UKUT 00138 (IAC) and PD and Others v Secretary of State for the Home Department [2016] UKUT 108 (IAC). The appellant also relies on the decision of the Court of Appeal in EV (Philippines) [2014] EWCA Civ 874, which predates the introduction of section 117.
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All of the existing jurisprudence was considered by Lord Justice Elias, with whom Lady Justice King and Sir Stephen Richards concurred, in MA (Pakistan) and his conclusions on the proper approach are to be found at [45]-[47]:
“46. … the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled ‘Family Life (as a partner or parent) and Private Life: 10 Year Routes’ in which it...
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