Upper Tribunal (Immigration and asylum chamber), 2021-10-20, HU/13936/2019
| Jurisdiction | UK Non-devolved |
| Date | 20 October 2021 |
| Published date | 04 November 2021 |
| Hearing Date | 16 July 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/13936/2019 |
Appeal Number: HU/13936/2019 (V)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/13936/2019 (V)
THE IMMIGRATION ACTS
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Heard at Field House via Skype for Business |
Decision & Reasons Promulgated |
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On 16th July 2021 |
On 20th October 2021 |
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Before
UPPER TRIBUNAL JUDGE RIMINGTON
Between
Mrs O Y H
(anonymity direction MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Christina Nicholas, instructed by Quintessence Solicitors
For the Respondent: Ms Julie Isherwood, Senior 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 her or any member of her 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.
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The appellant is a citizen of Nigeria born on 28th February 1981 and she appeals the Secretary of State’s decision of 16th July 2019 to refuse her human rights claim. This followed the Secretary of State’s refusal to revoke her deportation order. The appellant had been convicted on 4th October 2005 of one count of using a false instrument (false passport and visa) and was sentenced to ten months’ imprisonment and recommended for deportation to Nigeria under Section 3(6) of the Immigration Act 1971. In 2007 she married her British national husband in Nigeria and the couple have two British children born in 2008 and 2010. The appellant in 2017 made an application to have her deportation order revoked on the basis of her human rights. No decision was forthcoming and by 9th April 2019 her husband and two children relocated to the United Kingdom.
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The appellant challenged the decision of First-tier Tribunal Judge M A Khan dated 16th November 2020 dismissing her appeal. That decision was set aside for inadequate reasoning and the matter resumed in the Upper Tribunal before me for remaking.
The Secretary of State’s Refusal
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It is acknowledged in the reasons for refusal letter that the appellant first made an application to revoke the deportation order two years prior to the appellant’s British spouse and children moving to the United Kingdom in 2019. The Secretary of State’s refusal letter noted that the appellant was convicted on 4th October 2005 at Isleworth Crown Court, and she was recommended for deportation.
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Her application was considered under Ruiz Zambrano v Office national de l'emploi (Case C-34/09) EU:C:2011:124; [2012] QB 265. It was acknowledged that both the children had British citizenship and that the appellant considered that if the deportation order remained in force, she would be unable to “render the maternal obligations she owes to her British children who have entitlement to reside in the UK”. It was also acknowledged that the father was visually impaired and receiving medical treatment in the United Kingdom and with the submissions was enclosed a certificate of vision impairment dated 24th October 2018 completed by an ophthalmologist at St Thomas’ Hospital which assessed the husband to be severely sight-impaired (“blind”). The appellant’s husband also has type 2 diabetes. Notwithstanding that, it was considered that the children had resettled in the UK and were living with their father and that Zambrano would not be engaged because the appellant was not their primary carer and there was no requirement for them to leave the UK.
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Under Article 8 of the ECHR, it was stated that the Immigration Rules at paragraph A362 and paragraphs A398 to 399D set out the practice to be followed by officials acting on behalf of the Secretary of State when considering an Article 8 claim made by a foreign criminal. Additionally, Parliament’s views were set out at Sections 117A to 117D in Part 5A of the Nationality, Immigration and Asylum Act 2002.
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It was concluded that the appellant had been convicted of an offence which had caused “serious harm”, as evidenced by the court recommendation for the appellant’s deportation and that the appellant “committed an offence involving the deception of the immigration authorities at port when the maintenance of an effective immigration system is paramount for the security of the UK and protection of its citizens”. It was considered that the appellant’s deportation was required unless an exception applied. The Secretary of State considered Section 55 based on all the information supplied and it was noted that the appellant was able to live with her children in Nigeria in a functioning family unit providing for their welfare and best interests.
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It was not considered that it would be unduly harsh for the children to relocate to live with the appellant in Nigeria, their country of origin where they had previously lived with her. They would be able to assert their nationality in their country of birth and they will have retained their familiarity with Nigerian culture and social norms and could resume their education there. Article 8 did not guarantee the country in which the family life may be maintained.
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Further, the relationship with the appellant’s husband was formed and developed in Nigeria and progressed to marriage and these matters did not indicate that the conditions for her in Nigeria were unduly harsh.
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It was not considered it would be unduly harsh for the children to live in Nigeria. She had lived in Nigeria for twelve years and had successfully established herself there.
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Even if the appellant’s husband did not wish to relocate to Nigeria it would not be unreasonable for the children to maintain contact with their father from abroad through modern means of communication and through his visits to Nigeria. The children could additionally receive remittances from their father in the UK to support them in Nigeria and then, should they wish to, return to the UK to take up their right of abode.
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Alternatively, the children could live in the United Kingdom with their British father and thus assert their British nationality and benefit from any relevant rights and entitlements which such status confers.
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The appellant had not provided evidence of further details of the children’s current circumstances in the UK, including evidence of their residence here and the current caring arrangement. It was unclear when the children entered the UK and there was no evidence to conclude that the appellant’s presence was needed to prevent the children from being ill-treated or their health or development being impaired. While the appellant’s husband had vision impairment, there was no indication of Social Services or other agencies being involved and the school expressed no concern about the children’s welfare.
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It would appear that the appellant’s husband had had vision issues for some time and was considered that there was no evidence of any adverse material impact upon the children arising from the appellant’s removal from the UK.
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She claimed to have a family life with her husband and thus paragraph 399(b) of the Immigration Rules was considered. It was accepted she had married a British citizen and it was additionally accepted that he was currently resident in the UK but no documentary evidence demonstrating a subsisting relationship had been provided, including photographic evidence, and no dictated statement or supporting letter form the appellant’s sister had been furnished.
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It was not accepted it would be unduly harsh for the appellant’s husband to live in Nigeria. He had only recently returned to the UK, having married and fathered both of the children, and he had extensive experience of living in Nigeria.
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He could receive a remittance from his sister to aid his resettlement in Nigeria.
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It was not accepted it would be unduly harsh for the appellant’s husband to remain in the UK even though she had been deported. He could enjoy the various rights and entitlements in the UK and is clearly accessing the National Health Service provisions in respect of his visual impairment without any undue hindrance and could access state support. He could also access charitable support. There was no evidence that he was dependent on the appellant and that they could remain in contact with both the appellant and her children.
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The appellant did not meet the three limbs of paragraph 399A of the Immigration Rules. She was not socially and culturally integrated in the United Kingdom, and it was clear that there were no significant obstacles to her living in Nigeria. She worked as a banker and could seek other forms of employment should she wish to do so if they were compatible with childcare needs. She was currently living apart from her husband and her claimed children and it was considered she could maintain contact with these family members through modern means of communication.
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It was not considered that there were very compelling circumstances which applied to her deportation.
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In...
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