EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lady Smith Lord McGhie	[2013] CSIH 88 XA138/12 OPINION OF THE COURT delivered by LADY SMITH in the APPEAL by A F Appellant; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondents: Against a decision of the Upper Tribunal (Asylum And Immigration Chamber) _______________

Act: Byrne; Drummond Miller LLP

Alt: Webster; Office of Advocate General

25 October 2013

[1] This is an appeal against the decision of the Upper Tribunal (Asylum and Immigration Chamber) promulgated on 13 December 2011, dismissing the appellant's appeal against a decision of the First‑tier Tribunal promulgated on 19 January 2011. The First‑tier Tribunal refused his appeal against the respondent's decision not to grant his request for leave to remain in the United Kingdom.

Background facts

[2] The appellant was born on 10 January 1985, in Nigeria. On 26 April 2007, he made an application for entry to the UK at Lagos in his own identity. It was refused. Then, on 19 February 2008, he made an application for entry to the UK at Abuja in a false identity, using the name "Michael Adesoji", said to have been born on 31 January 1980, and he sought to support that application by reference to a false passport. It too was refused. Thereafter, on 14 March 2008, he was successful in obtaining a working visa for a two year period but "during which employment was only permitted for one year". He arrived in the UK on 17 April 2008.

[3] The appellant remained in the UK after his visa expired, thereby becoming an "overstayer".

[4] The appellant still has, on the findings of fact made by the First‑tier Tribunal, family and a means of support in Nigeria.

[5] As to what the appellant did after he arrived in the UK, on the findings of fact made by the First‑tier Tribunal, he began working - at cleaning jobs - in April 2008 and carried on working via an agency, throughout the two year period of his visa notwithstanding that he only had permission to work for one year.

[6] Regarding his personal life, the appellant met his partner in August 2008. She is South African. She came to the UK on 22 September 2007 at the age of 16 years, from South Africa. She entered as a dependent of her mother and was granted indefinite leave to remain in 2008. In or about March or April 2009, she moved to Glasgow - from Bradford - to live with the appellant. She became pregnant and their son was born on 3 May 2010; he was, accordingly, about seven months old at the time of the appeal hearing before the First‑tier Tribunal (on 6 December 2010). He is a British citizen. The appellant's partner and his son could return with him to Nigeria. Alternatively, the family could go to South Africa.

[7] On the findings of the Upper Tribunal, the appellant's son is also entitled to South African citizenship, based on the fact that his mother was a South African citizen at the time of his birth. Further, the Upper Tribunal records that it was accepted, on behalf of the appellant, that his child also seems to be eligible for Nigerian nationality. The Upper Tribunal judge thus concluded, at paragraph 14 of his written reasons:

"The child either has or can acquire with no difficulty, citizenship of both Nigeria and South Africa as well as the UK."

In September 2010, the appellant was detained on account of his being an overstayer.

The respondent's refusal letter

[8] The respondent's refusal decision was dated 22 October 2010. The relevant refusal letter demonstrates that she had regard to the appellant's article 8 rights and those of his son. She had regard to various authorities including the case of Chikwamba v Secretary of State for the Home Department 2008 1 WLR 1420, in respect of which the appellant was advised:

"The Secretary of State considers that the facts of your client's case can be distinguished from the case of Chikwamba v Secretary of State for the Home Department [2008]. The House of Lords considered the lawfulness of arguing that a person relying on Article 8 should leave the United Kingdom in order to apply for entry clearance. The House of Lords found that only in a small number of cases involving family life, and particularly those involving children, will returning the appellant to make an entry clearance application be appropriate. In your client's case we are not arguing that he should return to make an entry clearance application and as such it is considered that this case law does not apply to your client's case. This is because it is considered reasonable to expect his partner, who is a national of South Africa, to return with him to Nigeria. Whilst your client's partner has been granted indefinite leave to remain this does not of itself prevent her from going to Nigeria."

That is, the respondent did not refuse the appellant's application on the basis that she was applying a policy, let alone a policy to the effect that an applicant who can return to his home country and apply for leave to enter the UK from there, ought to do so. On the contrary, she proceeded on the basis that, on the particular facts of his case, he could return, with his family, and remain in his country of origin.

The judgment of the First‑tier Tribunal

[9] At the hearing before the First‑tier Tribunal, much of the appellant's evidence was not believed. At paragraph 25, the immigration judge states:

"I have not found the Appellant a witness of truth. On the contrary, I am satisfied that he is prepared to exaggerate, underplay, or misinterpret matters to his own advantage without any hesitation at all - and on occasion with some ingenuity, no matter for disingenuous."

He refers to one aspect of his evidence as being "duplicitous" (paragraph 25), another aspect of his evidence as being based on a "fictional fulcrum" (paragraph 26), other evidence as being not "genuine, accurate or truthful" and concluded that overall, his history and his evidence demonstrated:

"....the Appellant's complete, perfect contempt for the United Kingdom's law and regulations insofar as they thwart his clear intent - by whatever means and in whatever guise to gain entry and to remain here." (paragraph 31).

As to what the appellant and his partner would do if his appeal was unsuccessful, the appeal was not presented to the First‑tier Tribunal as one in which any decision had been made that the appellant would, on being returned to Nigeria, apply for leave to enter the UK from there. That was an option but then so was the option of the appellant and his partner going to Nigeria - or South Africa - and remaining there.

[10] On any reading of the immigration judge's written reasons, he plainly had regard and gave careful consideration to:

·      The fact that the appellant's son is a British national ;

·      The fact that since a child was involved, there was "a strong presumption in favour of preserving a settled status in the UK";

·      The fact that the appellant's son would be separated from his father if the decision was that the appellant would return to Nigeria alone;

·      The fact that it could not be assumed that the appellant's son would be afforded the same state care and education in South Africa or Nigeria as he would in the United Kingdom;

·      The fact that if the appellant did apply for leave to enter the UK, he would not be barred by the operation of paragraph 320(7B) of the relevant Immigration Rules; and

·      That the article 8 rights of the appellant's son, including those relating to his status as a British citizen, required to be afforded considerable weight.

He summarises his conclusions at paragraph 38:

"This has not been an easy determination. I have very much borne in mind the points raised in Chikwamba and given considerable weight to the rights of the partner and their infant son as a British national per Beoku Betts. Nonetheless, it is given to this Tribunal to weigh the evidence and reach a conclusion on the issue of proportionality. For the reasons set out above, I am satisfied removal on these facts is proportionate and have so concluded."

Those reasons were to the effect that notwithstanding those rights of the appellant's partner and son, once account was taken of the age of the child, of it being open to the family to go, as a unit, to Nigeria or South Africa (the countries of origin of the child's parents, where they had respectively been brought up), of the short length of the appellant and his partner's residence in the UK, of application by the appellant for entry from Nigeria being a possibility - which would not occasion prejudicial delay, of none of what was relied on by the respondent being such as to preclude the appellant's removal and of the dishonesty engaged in by appellant in connection with his immigration applications, removal was proportionate notwithstanding that article 8 was engaged. Put shortly, the immigration judge of the First‑tier Tribunal carried out a balancing exercise in which the significance and importance of the child's interests, including his status as a British citizen, were clearly recognised.

[11] Further, although he made his decision prior to the decision of the Supreme Court in the case of ZH (Tanzania) v Home Secretary [2011] AC 166, the immigration judge had taken account of the child's status as a British national.

The judgment of the Upper Tribunal

[12] In addition to those facts relied on by the First‑tier Tribunal, the Upper Tribunal found, on the basis of material placed before them, that the appellant's son was entitled to South African and Nigerian nationality, as noted above.

[13] The conclusions of the Upper Tribunal are summarised at paragraph 24:

"There was, as the Judge found, rather more on the respondent's side of the balance in this case than the formal requirement that applications are to be made from abroad. The appellant does not have as appalling an immigration history as Ekinci, but he had used deceit towards the immigration authorities (and again as a witness) and had overstayed. The respondent's decision involved either a minor element of family separation or none at all, depending on choices open to the family. The judge was entitled to find that, on balance, the appellant's departure to Nigeria would not be disproportionate. He gave more than adequate reasons for coming down on the side he did. There is no error of law in the determination of the First Tier Tribunal, and it shall stand."

Submissions for the appellant

[14] Mr Byrne, advocate, submitted that there were two issues namely (a) whether the First‑tier Tribunal adequately discharged its duty to treat the child's best interests as a paramount consideration, and (b) whether the First‑tier Tribunal had identified a good or sensible reason for sending the appellant back to Nigeria to apply for entry to the UK from there.

[15] Regarding the first issue, Mr Byrne stressed that the decision had predated the judgments of the Supreme Court in the case of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. It was therefore almost inevitable that the decision of the immigration judge would be inconsistent with ZH which showed that there needed to be a prospective analysis. It was not just a matter of the child's circumstances as at 2011. As a British citizen the child had a free standing status. Mr Byrne referred, in particular, to Baroness Hale of Richmond at paragraphs 30 and 32, Lord Hope of Craighead at paragraphs 40 and 41, and to Lord Kerr of Tonaghmore at paragraphs 46 and 47. Mr Byrne submitted that the First‑tier Tribunal had failed to address the matter of the child's best interests; they had not been treated as being a paramount consideration.

[16] Regarding the second issue, Mr Byrne made this submission under reference to the case of Chikwamba. Notwithstanding that the blanket policy referred to in that case was not subsisting at the time that the respondent considered the appellant's case, the decision had a broad application and it meant that the immigration judge had been obliged to identify a sensible reason for return. It had not been shown that it was appropriate to require the applicant to return to apply to re- enter the UK. He also referred to the case of Secretary of State for the Home Department v Hayat [2012] EWCA Civ 1054.

Submissions for the respondent

[17] By way of introduction, Mr Webster submitted that there was a common theme as between ZH and Chikwamba and it was that neither of the issues to which they related presented the appellant with a trump card. Both cases recognised that there was a factual issue which required the decision-maker to exercise judgment. ZH did not say that nationality was a short or pithy answer to removal and Chikwamba did not say that having to return to the home country for a short period before returning to the United Kingdom was a complete answer to the proportionality issue either. ZH turned on facts which were significantly different from those in the present case. Hayat also turned on its own facts. Chikwamba was decided in the context of a blanket policy of removal for appellants to reapply for entry from their own country; the policy did not apply in this case nor had the respondent relied, in refusing the appellant's application, on policy.

[18] Further, the task for the First-tier Tribunal had been to exercise a discretion in the sense that the immigration judge was not bound by the authorities relied on to reach a particular conclusion. Both ZH and Chikwamba recognised that a First‑tier Tribunal has a judgment to make as to the assessment of proportionality. The decision reached was, in this case, well within the bounds of what could be considered reasonable. It was plain from the terms of the First‑tier Tribunal which factors weighed with him.

[19] Mr Webster submitted that it was clear from the reasons given by the First‑tier Tribunal that the immigration judge had in fact given careful consideration to the fact of the child's British nationality and that regarding the second issue, he had, similarly, given careful consideration to all the relevant facts. It was open to him in the particular circumstances of this case which included that the appellant's partner and child could go back to Africa with him, - thereby avoiding any family separation - that they could live in Nigeria or South Africa (this was not a case where the only option presented was that the appellant would go back and immediately reapply for entry) and the various negative adverse aspects of the appellant's immigration history, to decide as he did. His reasoning could not be faulted.

Relevant law

[20] The effects of art 8 ECHR, art 3.1 of the United Nations Declaration on the Rights of the Child and sec 55 of the Borders, Citizenship and Immigration Act 2009 are that in a case such as the present, the best interests of the child are a paramount consideration. However, the need to afford the best interests of any child a primacy of consideration does not mean that they require to be addressed at the first stage of the exercise: H v Lord Advocate 2012 SLT 799. "Best interests" broadly describes the well being of a child but it does not mean that identifying a child's best interests must lead inexorably to a decision which conforms with those interests (ZH - Baroness Hale at paragraphs 25 and 26).

[21] A child's right of citizenship is "of particular importance in assessing [his] best interests...." and is a "significant and weighty factor" but it is not a trump card (ZH - Baroness Hale at paragraph 30; Lord Hope at paragraph 41). The importance of the status of British citizenship arises because of the social and cultural rights which, as an aspect of private life, attach to it, as discussed in ZH at paragraphs 30, 32, 41, and 47.

[22] Accordingly, the citizenship rights of the child of an applicant who seeks leave to remain in the UK require to be carefully considered. They are a weighty factor but the British citizenship of such a child is not, of itself, determinative of the issue of whether the best interests of the child will be prejudiced if the applicant is removed. Nor is it, of itself, determinative of the application.

[23] Regarding the matter of returning an applicant to reapply for entry from his home country, it is clear from Chikwamba, that if the decision to remove is made because the respondent is applying a policy to that effect, the consequent engagement of article 8 means that the decision must be justified by reference to some sensible reason for doing so (see the useful summary by Elias LJ in Hayat at paragraph 30 (a) and (b)). However, it is clear that that line of authority has no application if the decision was not based on policy.

Decision
[24] The findings in fact made by the First‑tier Tribunal - as expanded by the Upper Tribunal regarding the child's additional rights to South African and Nigerian citizenship - were not challenged. Those facts can clearly be distinguished from those of ZH and of Chikwamba. In ZH, the children were 12 and nine years old, had been born in the UK and had never been resident anywhere else. Removal would have separated them from their father, with whom they could not have remained as he would have been unable to care for them full time due to his poor health. In Chikwamba, separation of a child of four years from her father would have been the inevitable outcome of returning the mother to what would, furthermore, have been harsh and unpalatable conditions in her country of origin; the father could not go back there. Further, importantly, the central issue was whether it was open to the respondent to operate a policy of, as a matter of routine, returning all such applicants to apply for re‑entry irrespective of their particular circumstances.

[25] Whilst the immigration judge at First‑tier Tribunal stage did not have the benefit of the judgments in ZH, whether by reason of prescience or otherwise, it is, we consider, clear that he did in fact accord significant weight to the fact that the appellant's child was a British citizen. To suggest that he did otherwise is simply not tenable. Equally, however, nationality is not a trump card and he required to take account of the whole circumstances which included the very young age of the child, the availability to the child of family life with parents who had only been in the UK for a short period in one of their countries of origin, and the extent to which the appellant's immigration history involved dishonesty and deception. The immigration judge in the First‑tier Tribunal took account of all these factors and carried out a careful weighing exercise when making his assessment of proportionality.

[26] As for the Chikwamba issue, we are satisfied that it does not arise. The respondent's refusal in this case did not arise from the application of any policy at all, let alone the type of policy which was criticised in that case.

[27] We cannot, in these circumstances, conclude that there was any error on the part of either tribunal. It was open to the First‑tier Tribunal, on the facts, to refuse the appeal and order the appellant's return. This appeal is, accordingly, refused.