Upper Tribunal (Immigration and asylum chamber), 2023-04-28, HU/08195/2020
| Appeal Number | HU/08195/2020 |
| Hearing Date | 17 January 2023 |
| Published date | 16 May 2023 |
| Date | 28 April 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2021-001299
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2021-001299 First-tier Tribunal No: HU/08195/2020 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 28 April 2023
Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
CASSANDRA OSAOYANMWEN IJEWEREME
(NO ANONYMITY ORDER MADE)
Appellant
and
THE ENTRY CLEARANCE OFFICER
Respondent
Representation:
For the Appellant: Mr R. Ahmed, Counsel instructed by Hussain Immigration Law Limited
For the Respondent: Mr T. Melvin, Senior Home Office Presenting Officer
Heard at Field House on 17 January 2023
DECISION AND REASONS
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By a decision promulgated on 29 October 2021, First-tier Tribunal Judge Hanley (“the judge”) dismissed an appeal brought by the appellant against a decision of the Entry Clearance Officer dated 21 October 2020 to refuse her human rights claim for entry clearance as the adopted child of a partner of a British citizen. The judge heard the appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The appellant now appeals to this tribunal with the permission of First-tier Tribunal Judge Moon.
Factual background and the findings of the judge
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The appellant is a citizen of Nigeria born on 26 March 2003. She applied for entry clearance as the adopted child of Evelyn Aibangbee (“the sponsor”), a Nigerian citizen who entered the UK on 13 November 2019 as the fiancée of a British citizen. The sponsor is the appellant’s maternal aunt. The appellant’s case was that her mother had abandoned her to the care of her grandmother when she was a small child. The grandmother died in 2007 and the sponsor has been responsible for bringing her up ever since. On 30 June 2017, a Nigerian court issued an adoption order in favour of the sponsor. On 2 May 2020, when she was still a child, the appellant made the application for entry clearance. It was refused for broadly the same reasons as the judge dismissed the appeal.
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The judge heard the appeal on 5 October 2021, by which time the appellant was an adult. He heard evidence from the sponsor, her husband, John Osagie, whom she married shortly after her arrival in the UK, and from Wilson Isuru-Ajaguna, a neighbour of the appellant and the sponsor from their time living in Nigeria.
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In a detailed and lengthy decision which set out much of the evidence, the judge found that the appellant could not satisfy paragraphs 309A (de facto adoptions) or 314 (adopted child of a parent with limited leave to enter or remain) of the Immigration Rules. The appellant could not meet paragraph 314 because inter-country adoptions post-dating 3 January 2014 are no longer recognised in respect of Nigeria. The (UK) Department for Education had not issued a Certificate of Eligibility. She could not satisfy paragraph 309A since she and the sponsor were no longer living together and had not done so for the 12 months immediately preceding the application (paras 84 – 89). The judge noted that AA (Somalia) v Entry Clearance Officer (Addis Ababa) [2013] UKSC 81 and R (AK and others) v Secretary of State for the Home Department [2021] EWCA Civ 1038 had subjected paragraph 309A of the rules to significant criticism, but concluded that he had no jurisdiction to consider the validity of the rule, and he had not been invited to do so by the sponsor, who had acted for the appellant in person (para. 88).
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The judge accepted that the appellant and the sponsor enjoyed “family life” for the purposes of Article 8 of the European Convention on Human Rights (“the ECHR”) but found that the decision to refuse entry clearance was proportionate: see paras 91, and 119 to 121. He had not been given a truthful picture of the appellant’s current circumstances in Nigeria. The evidence had been contradictory. There was limited documentation concerning the Nigerian adoption. The appellant did not present a birth certificate registered at the time of her birth (her birth was registered on 10 September 2019). The sponsor’s financial support for the appellant could continue as at present. The factors on the appellant’s side of the scales were outweighed by those militating against her admission. The judge dismissed the appeal.
Issues on appeal to the Upper Tribunal
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On a fair reading of the grounds of appeal, and in light of Mr Ahmed’s formulation of the issues in his oral submissions, the appellant contends that the judge fell into error on the following bases. First, through failing properly to analyse the appellant’s claim to be entitled to succeed on the basis of her de facto Nigerian adoption. He failed to engage with the criticisms of paragraph 309A in AA (Somalia) and R (AK and others). Secondly, the judge failed to address the appellant’s best interests as a child at the time she made the application.
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The Secretary of State relied on a rule 24 notice dated 4 February 2022.
Entry clearance and positive obligations under the ECHR
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The essential question which lay beneath the judge’s analysis was whether the requirements of the ECHR subjected the UK to a positive obligation to admit the appellant: see the discussion in R (oao Bibi) v Secretary of State for the Home Department [2015] UKSC 68 at paras 25 to 29, and in R (oao MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10 at paras 38 and 40 to 44. In positive obligation cases, the question is whether the host country has an obligation towards the migrant, rather than whether it can justify the interference under Article 8(2). But the principles concerning negative and positive obligations are similar. As the Strasbourg Court held in Gül v Switzerland (1996) 22 EHRR 93:
“In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the state enjoys a certain margin of appreciation…” (paragraph 106)
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In practice, the question of whether a fair balance has been struck is determined by looking first to the Secretary of State’s Immigration Rules, and then by reference to Article 8 “outside the rules”. As to the latter assessment, Part 5A of the 2002 Act contains a number of public interest considerations to which the tribunal must have regard when considering the proportionality of the refusal of entry clearance. In addition, it is settled law that the best interests of the child are a primary consideration when assessing proportionality under Article 8(2) of the ECHR.
No error in the judge’s analysis of paragraph 309A or the appellant’s claimed de facto adoption
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In my judgment, the judge was right to apply paragraph 309A in its “unvarnished” form, without purporting to modify its application in light of the criticism it has received from the Supreme Court and Court of Appeal in AA (Somalia) and R (AK and others) respectively.
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First, as the judge observed, in a human rights appeal, there is no jurisdiction to consider challenges to the Immigration Rules. A judge must consider the question of Article 8 as articulated by the rules, and outside the rules. To the extent that an immigration rule fails properly to articulate the requirements of the ECHR, any potential unlawfulness under section 6 of the Human Rights Act 1998 arising from the rule being applied is readily averted by a judge analysing Article 8 outside the rules. That is precisely what the judge did.
Secondly, the appellant’s reliance on AA (Somalia) and R (AK and...
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