Upper Tribunal (Immigration and asylum chamber), 2021-05-10, HU/18028/2019
| Jurisdiction | UK Non-devolved |
| Date | 10 May 2021 |
| Published date | 24 May 2021 |
| Hearing Date | 30 March 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/18028/2019 |
Appeal Number: HU/18028/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/18028/2019
THE IMMIGRATION ACTS
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Heard remotely via video (Skype for Business) |
Decision & Reasons Promulgated |
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On 30 March 2021 |
On 10 May 2021 |
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Before
UPPER TRIBUNAL JUDGE blum
Between
ADEGOKE EMMANUEL ALABI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr Semega-Janneh, counsel, instructed by Farani Taylor Solicitors
For the respondent: Mr E Tufan, Senior Home Office Presenting Officer
This decision follows a remote hearing in respect of which there has been no objection by the parties. The form of remote hearing was by video (V), the platform was Skype for Business. A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing.
DECISION AND REASONS
Background
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This is an appeal against the decision of Judge of the First-tier Tribunal Raikes (“the judge”) promulgated on 21 January 2020 in which she dismissed the human rights appeal of Mr Adegoke Emmanuel Alabi (“the appellant”) against a decision of the Secretary of State for the Home Department (“the respondent”) dated 24 October 2019 refusing the appellant’s human rights claim.
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The appellant is a national of Nigeria who was born on 9 July 1975. He entered the UK as a visitor on 15 July 2004. He overstayed. On 24 April 2008 he applied for an EEA Residence Card but this was refused on 29 April 2009. On 26 March 2012 he again applied for an EEA Residence Card but this was refused on 4 September 2012. On 15 November 2012 he applied for an EEA Residence Permit but this was refused on 20 July 2013.
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The appellant’s next application was a human rights claim made on 24 October 2019 and based on his length of residence in the UK and his relationship with Olubunmi Racheal Mokuolu (“the sponsor”), a Nigerian national with an EU right of permanent residence in the UK.
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In her decision refusing the human rights claim the respondent accepted:
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That the appellant did not fall for refusal under the Suitability requirements of Appendix FM;
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That the appellant met the Eligibility Relationship requirements of paragraphs E-LTRP.1.1. to 1.12. of Appendix FM;
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That the appellant met the Eligibility Financial requirements of Appendix FM;
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That the appellant met the Eligibility English Language requirements of Appendix FM;
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That the appellant did NOT meet the Eligibility Immigration Status Requirements at paragraphs E-LTRP.2.1. to 2.2. of Appendix FM because his previous leave as a visitor in 2004 was only valid for 6 months and he had therefore been without lawful leave for over 14 years.
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The respondent was not satisfied that the appellant met the requirements of EX.1 of Appendix FM as there were considered to be no ‘insurmountable obstacles’, as understood with reference to EX.2, preventing the couple continuing their relationship in Nigeria. Nor was the respondent satisfied that there were ‘very significant obstacles’ to the appellant integrating in Nigeria, as required by paragraph 276ADE(1)(vi) of the Immigration Rules. The respondent was not satisfied there were any exceptional circumstances such that a refusal of the human rights claim would result in a disproportionate interference with Article 8 ECHR.
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The appellant appealed the respondent’s decision to the First-tier Tribunal pursuant to s.82 of the Nationality, Immigration and Asylum Act 2002.
The Decision of the First-tier Tribunal
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The judge had before her a 401-page bundle of documents prepared on the appellant’s behalf and which contained, inter alia, statements from the appellant and his sponsor, and a letter from the Trent Vale Medical Practice dated 17 December 2019. The judge heard oral evidence from the appellant and his sponsor.
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At [4] of her decision the judge summarised the Reasons for Refusal Letter with reference to the points contained in paragraph 4 (i) to (v) above. At [13] to [21] the judge set out the relevant legal framework and applicable legal principles derived from caselaw.
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The judge set out her ‘Findings of Facts on the Evidence’ at [26] to [40]. The judge found that the appellant had been inconsistent in his evidence relating to his family in Nigeria and that he had a mother and brother in Nigeria with whom he remained in contact [28]. The judge rejected the appellant’s claim that, if removed to Nigeria, he would be left on his own with no help or support and no-one he could rely on [29]. The judge found that the appellant had obtained a senior school certificate in Nigeria and that he worked in the Nigerian construction industry for 4 to 5 years before he left the country, and that there was no independent evidence that, as a result of his age, the appellant would struggle to find employment [30]. The judge found that the appellant could speak Yoruba and English [31]. The judge found that the sponsor had family in Nigeria with whom she maintained contact [34]. The judge noted the absence of any evidence that, as a Christian, the appellant would face any difficulties as a result of the political situation in Nigeria [35]. No challenge has been made to any of these findings.
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At [32] the judge stated:
“In addition to this and when considering the Appellant’s claim, I note that much has been made of the fact that the Respondent accepted that he is in a genuine and subsisting relationship with his partner, a Nigerian citizen who has permanent residence in the UK, as well as the fact that he also satisfies the financial and English language requirements of the Rules. It has been stated that were the Appellant to be making an application from outside of the UK he would be granted one. However, I am satisfied that notwithstanding the fact that he has met some of the Rules by fulfilling some of the requirements, I also note that this is an Appellant who entered the UK on a six-month visit visa and did not return to Nigeria when he should have done so.”
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At [33] the judge noted that the appellant had resided in the UK for 11 years without valid leave when he entered his relationship with his sponsor and that the resultant family life had been developed in the full knowledge that the appellant had no lawful status in the UK and that his position was entirely precarious.
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At [37] the judge found that the appellant could not meet the requirements of Appendix FM because of his immigration status, and at [38] and [39] the judge found that there were no insurmountable obstacles to the relationship continuing in Nigeria. There has been no challenge to this finding. Nor has there been any challenge to the judge’s finding that the appellant did not meet the requirements of paragraph 276ADE(1)(vi). The judge noted that the appellant had spent the formative years of his life in Nigeria, that he speaks the language, and that he has close family members who would be able to assist in providing him with emotional and moral support [40].
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The judge then considered whether the decision to refuse the human rights claim was proportionate under Article 8 outside of the Immigration Rules. The judge satisfied herself, by reference to the appellant’s length of residence and his relationship with his partner and extended family in the UK, that his proposed removal would constitute an interference with Article 8, both in respect of his private and family life [44]. Having found that the proposed interference was in accordance with the law and necessary in a democratic society, the judge then considered whether the decision was proportionate. At [50] the judge reiterated that there were no significant obstacles to the appellant’s integration in Nigeria and that his sponsor would be able to return to Nigeria with him, should she choose to do so, and re-establish herself with him in that country. The judge stated:
“The Appellant and his partner are well qualified and whilst they are seeking medical assistance with their wish to start a family, there is nothing to suggest that this could not continue in Nigeria were they to choose to live together there. I am therefore not satisfied that in the particular circumstances of this case, there are compelling reasons as to why family and private life as is cannot continue outside the United Kingdom.”
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At [51] the judge indicated that she had taken into account the factors in s.117B of the Nationality, Immigration and Asylum Act 2002, and in particular s.117B(6), and concluded that, on the evidence before her, it would not be unreasonable for the appellant to leave the UK and return to Nigeria.
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At [52] the judge stated:
“I am satisfied that he [the appellant] was unable to meet the eligibility immigration status rules and given his partner’s status has not been able to meet the exceptions within the Rules. Further, in my view, he has provided no credible or plausible reason as to why he remained in the UK for the length of...
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