Upper Tribunal (Immigration and asylum chamber), 2020-10-26, HU/19519/2018
| Jurisdiction | UK Non-devolved |
| Date | 26 October 2020 |
| Published date | 09 November 2020 |
| Hearing Date | 12 October 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/19519/2018 |
Appeal Number: HU/19519/2018 [V]
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/19519/2018 [V]
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 12 October 2020 |
On 26th October 2020 |
Before
UPPER TRIBUNAL JUDGE GLEESON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
T O (Nigeria)
[ANONYMITY ORDER MADE]
Respondent
Representation:
For the appellant: Ms Julie Isherwood, Senior Home Office Presenting Officer
For the respondent: Mr Nigel Vaughan, legal representative with NBS Solicitors.
DECISION AND REASONS
Anonymity order
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) The Tribunal has ORDERED that no one shall publish or reveal the name or address of T O who is the subject of these proceedings or publish or reveal any information which would be likely to lead to the identification of him or of any member of his family in connection with these proceedings.
Any failure to comply with this direction could give rise to contempt of court proceedings.
Decision and reasons
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The Secretary of State appeals with permission against the decision of the First-tier Tribunal allowing the claimant’s appeal against her decision on 10 September 2018 to refuse the appellant’s application for leave to remain on human rights grounds. The claimant is a citizen of Nigeria.
Background
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The claimant arrived in the United Kingdom in 2004, but has never had leave to enter or remain.
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On 6 July 2005, she was arrested trying to board a flight to Canada, using a stolen British passport. The claimant pleaded guilty to attempting to obtain services by deception and on 2 September 2005, she was sentenced to 12 months’ imprisonment, with a recommendation for deportation. The claimant had claimed asylum when arrested. She benefited from an in-country right of appeal on which she was appeal rights exhausted on 24 April 2006.
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The claimant began a relationship with her former partner, and in October 2005, while she was in prison, she gave birth to a daughter who is a British citizen and is now 15 years old.
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The claimant’s current partner came to the United Kingdom in 2000 and has lived here for 20 years, including some years before their relationship began. He has been granted a Parental Rights Order in respect of the older daughter.
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On 28 December 2006, a deportation order was signed. On 27 March 2007, the claimant failed to report and was treated as an absconder.
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On 8 December 2011, the claimant had another daughter with her current partner, who has permanent residence in the United Kingdom under the Immigration (European Economic Area) Regulations 2016 and is a Nigerian citizen. Their daughter together is 8 years old.
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On 20 April 2011, the claimant brought herself to the attention of the authorities when she made an application under the asylum legacy programme. She was in a new relationship with her current partner.
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The claimant next made three applications to revoke the deportation order, in 2011, 2012 and 2013 which were unsuccessful. Following the failure of her last revocation application, the claimant absconded again from 21 November 2014 until 10 September 2015.
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On 5 September 2016, the claimant’s partner achieved permanent residence in the United Kingdom under the EEA Regulations, and by October 2017, the parties had been living together for two years. The claimant applied for an EEA family members’ residence card, which was refused on two occasions, in 2016 and 2018. On 14 May 2018, the claimant applied for leave to remain again, but voided that application.
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The application the subject of the present appeal was made in further submissions, resulting in a refusal letter dated 12 September 2018. The Secretary of State refused to revoke the deportation order or grant leave to remain on human rights grounds.
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In 2020, the claimant’s partner visited Nigeria for a funeral. He does still have connections there, family and friends.
Refusal letter
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The Secretary of State did not dispute the nationality of the claimant’s children, nor that they lived with her and her current partner as part of a family unit. However, she did not consider that it would be unduly harsh for the claimant’s partner or children to remain in the United Kingdom without the claimant, or that there were very compelling circumstances outweighing the United Kingdom’s right to control immigration.
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The Secretary of State also considered that as both the claimant and her partner were Nigerian, it was open to them to take the children with them and to return to Nigeria as a family. Alternatively, the claimant’s partner could look after the girls in the United Kingdom.
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The claimant appealed to the First-tier Tribunal.
First-tier Tribunal decision
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On 18 February 2020, First-tier Judge Bunting began with the Devaseelan starting point, a decision by First-tier Judge Mulholland in 2017, on which permission to appeal to the Upper Tribunal was refused. Judge Mulholland noted that the claimant had used multiple identities for herself and her children, and had not attempted to correct this.
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Judge Mulholland’s primary finding was that both girls would be able to reside with the claimant’s current partner and that there was no breach of the EEA Regulations as they would not be required to leave the European Union. Judge Mulholland was not satisfied by the claimant’s account that her elder daughter was not in touch with her father, following his release from prison in 2014, and made a secondary finding that he would be in a position to assume responsibility for her.
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Judge Mulholland dismissed the EEA Regulations appeal. There were in addition decisions from First-tier Judges Herlihy and Hanratty. The decision of Judge Herlihy did not add significantly to the factual matrix. That of Judge Hanratty made a negative credibility finding, but the appellant did not attend and he did not have the opportunity to see her evidence tested in cross-examination.
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The present decision is based on oral evidence, with cross-examination. The judge found that both children were at school and in education and had a private life outside the home. The section 55 best interests of both children were to stay with their mother, whether she was in the United Kingdom or in Nigeria. In addition, it was in their best interests to remain in the United Kingdom and grow up as British citizens.
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The First-tier Judge found that it would be unduly harsh for the children to live in the United Kingdom without their mother, with reference to paragraph 399(a) and 399(b) of the Immigration Rules HC 395 (as amended). The claimant was the primary carer, since her partner had employment but she did not. The bond between mother and daughter was strengthened by this. There was a letter from the older child (albeit unsigned) emphasising that she wanted her mother to remain. The younger child was said to be clingy and ‘too heavily reliant’ on the claimant.
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The judge applied KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 and concluded that the bond between the claimant and her children was sufficiently different from that of most families to make her removal unduly harsh. The elder daughter was just choosing her GCSEs, which she would study from September 2020. Moving her now would be significantly detrimental to her education. She had a circle of friends and interests, within and outside school. The younger girl did not speak or understand Yoruba, although she would learn eventually, but it was the circumstances of the older girl which were determinative on Article 8 ECHR grounds because of her age and educational circumstances.
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The judge took account of the claimant’s unlawful status in the United Kingdom. He then gave separate consideration to section 117C and section 117B(6) which he correctly found to be inapplicable, as this is a case where a deportation order has been made. The 12-month sentence placed the claimant at the lower end of ‘medium’ offending, although passport offences were always serious.
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The judge noted the public interest in deportation, but the present claimant had committed only one offence, 13 years ago, and was ‘long past the point of being rehabilitated’. Delay was a factor, but given the long periods of absconding, not one which carried much, if any, weight in this appeal.
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In the event that the claimant did not meet the terms of the exceptions, Judge Bunting considered that this was a ‘near miss’ and that in her peculiar circumstances, the appeal should be allowed.
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The Secretary of State appealed to the Upper Tribunal.
Permission to appeal
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There were two grounds of appeal: first, that the First-tier Tribunal decision failed to provide adequate reasons on a material matter, the question of undue harshness; and second a material misdirection, again with reference to undue harshness, with reference to Secretary of State for the Home Department v PG (Jamaica) [2019] EWCA Civ 1213 at [39]. With respect, both grounds appear to be the same.
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