Upper Tribunal (Immigration and asylum chamber), 2021-06-28, IA/30792/2014
| Jurisdiction | UK Non-devolved |
| Date | 28 June 2021 |
| Published date | 13 July 2021 |
| Hearing Date | 25 May 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/30792/2014 |
Appeal Number: IA/30792/2014
IAC-AH-KRL-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30792/2014
THE IMMIGRATION ACTS
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Heard at Field House Face to Face |
Decision & Reasons Promulgated |
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On the 25th May 2021 |
On the 28th June 2021 |
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Before
UPPER TRIBUNAL JUDGE RIMINGTON
Between
mr A U O
(anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr E Fripp, instructed by D J Webb & Co Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer
DECISION AND REASONS
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The appellant appeals against the decision by the respondent dated 15th July 2014 (served on 21st July 2014) to remove the appellant from the United Kingdom under Section 10 of the Immigration and Asylum Act 1999, and the refusal under the immigration rules and on human rights grounds on 15th July 2014 of the appellant’s application dated 30th May 2014.
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The appellant is a citizen of Nigeria, born on 3rd May 1989, and had been granted entry clearance as a visitor on 22nd July 2004 valid until 22nd January 2005, He landed in the United Kingdom on 1st August 2004, aged 15 years old.
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In 2006 he was included as a dependent child on the application submitted by his mother but that was withdrawn in July 2007. He was included as a dependant of his father in an application dated 20th April 2007 which was rejected, and the resubmission rejected again on 14th November 2007 and the appellant was served with a notice of liability to removal in line with his father as an illegal entrant. His father had arrived in the United Kingdom in 1981 and the appellant’s mother joined her husband in London in 1999. A further application made by the appellant’s father was refused on 2nd December 2009, a humanitarian protection claim was refused on 28th July 2010. The appellant made an application on his own behalf which was refused on 30th August 2013. The appellant made a further application on 30th May 2014 which was refused and which generated this right of appeal.
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The human rights’ decision dated 15th July 2014 under appeal considered that the appellant met the suitability requirements for consideration of limited leave to remain either as a partner or parent under Appendix FM. At the time, the appellant however had no partner and was rejected under Appendix FM of the Immigration Rules because he was not in a relationship and was further rejected under Appendix FM because he was not a parent of a child in the United Kingdom.
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The appellant appealed on 30th July 2014, in accordance with the previous appeal regime under Sections 82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), (amended with transitional provisions on 6th April 2015), that his return to Nigeria and the decision was not in accordance with the law, not in accordance with the immigration rules, the discretion should have been exercised differently and the decision was unlawful under section 6 of the Human Rights Act 1998 and would breach his human rights.
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The appeal against the decision of 15th July 2014 has a long and protracted history. His appeal against removal was allowed by First-tier Tribunal Judge Kimnell on 4th March 2015 who noted that the appellant had been present in the UK for over ten years, came as a child, had spent his time well obtaining qualifications, including his masters degree in pharmacy and was capable of making a significant contribution to the community in the United Kingdom. The appellant stated that he had ambitions to study further and qualify as a surgeon. Judge Kimnell found it to be a marginal case but on balance the decision to remove him was a disproportionate interference with his Article 8 rights.
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The Secretary of State appealed that decision on the basis that the judge failed properly to apply Section 117B of 2002 Act and secondly failed to conduct an adequate balancing exercise attaching too much weight to the respondent’s qualifications and potential future contribution to the United Kingdom. On 8th September 2016, Upper Tribunal Judge Kamara and Deputy Upper Tribunal Judge Harris found the First-tier Tribunal Judge had attached too much weight to the respondent’s ability to speak English and to the likelihood of him becoming financially independent given his qualifications in pharmacy, in line with Rhuppiah and the Secretary of State for the Home Department [2016] EWCA Civ 803. Additionally the judge erred in relation to Section 117B(4) and (5) in that there was no recognition that the appellant’s presence in the United Kingdom was overwhelmingly unlawful and initially precarious. The judge did not identify any “compelling reasons” which merited allowing the appeal outside the Rules.
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The matter was remitted to the First-tier Tribunal. It was heard again by First-tier Tribunal Judge Grant on 15th March 2017. The appellant did not learn until 16th November 2017 that his appeal had been dismissed. The judge noted the appellant was gifted academically and had a younger brother who was a successful professional footballer but found that he had gone to university and lived an independent life. The appellant had not established that he had enjoyed family life ties above normal family ties within the meaning of Article 8 as per ‘AA v United Kingdom’ (sic). She noted that the three years the appellant had spent in the United Kingdom as a minor unlawfully was entirely the responsibility of his parents but that as an adult, he knew his immigration status was precarious and he had no right to be in the United Kingdom. She found he was integrated, motivated and an upstanding member of his local community and did not arrive at his own behest. She found there were no insurmountable obstacles to the appellant’s reintegration into Nigeria and that he had a brother there already with whom although he was not in contact, and an aunt and he could locate and old friends from school.
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That decision of the First-tier Tribunal was again challenged on 29th November 2017 by an application for permission to appeal, this time by the appellant. The matter came before Deputy Upper Tribunal I A Lewis on 11th July 2018. Regrettably, no decision was promulgated until 14th June 2019, over two years since the refusal by First-tier Tribunal Judge Grant. When the decision was promulgated Deputy Upper Tribunal Judge Lewis found an error of law in the approach by the First-tier Tribunal to the family life of the appellant and set aside the decision.
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On 16th January 2016, a child had been born to the appellant following a relationship. That relationship had broken down by the date of the birth of the child. I acknowledge that the decision of Judge Grant was set aside but the evidence recorded is relevant. It is right to state that First-tier Tribunal Judge Grant noted that the appellant has numerous family members in the UK, comprising his father, his mother, his younger brother, six cousins and two aunts. She also noted that the appellant has a daughter in the UK called GF and that the appellant and the mother had split up when the child was a few weeks old and
“He has not been allowed to have contact with the child since. The mother of the child has now moved back to Hull where her parents live and taken GF with her. The appellant has sought legal advice about seeking contact with his daughter but was told that because he has no lawful presence in the United Kingdom he would not qualify for any kind of legal aid and the fact he is unlawfully in the UK would also be considered a negative factor in terms of being able to provide any kind of stability for his daughter.
The appellant is not seeking to capitalise on the fact that he has a child in the UK. He cannot prove that GF is his daughter because he does not have a birth certificate showing his name as the father, but he presumes DNA testing could prove that, but in the absence of the mother volunteering to allow the child to be tested he would have to pursue this through the Family Court”.
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The above sets out the position of the appellant vis-à-vis his daughter as in 2017. At that point there was no evidence that he was indeed the father of his child, but it does indicate that he had been considering attempts to have contact with his child and that he had not ignored those prospects. In the bundle before me there was a DNA Profiling test report dated 19th December 2018 which demonstrated that the appellant was indeed the biological father.
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In relation to the resumed matter the appellant’s solicitors wrote to the Tribunals in July 2019 submitting that the appellant had ongoing proceedings in the Family Court concerning contact with his daughter and that an application had been made to the courts for those proceedings and any orders by the court to be disclosed to the Tribunal. It was noted that the appellant would obviously wish to rely on those matters in any resumed hearing and that the matter should be adjourned to September 2019. It was made...
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