Scottish Court of Session Decisions

Act: Caskie; Drummond Miller LLP

Alt: Webster; OAG

1 May 2014

Summary

[1] The applicant is a national of Nigeria who entered the UK legally with a student entry clearance visa valid from 25 January 2007 until 30 September 2008. Various extensions were granted. On 30 October 2009 he applied timeously for leave to remain in the Tier 1 (highly skilled) post study category. He was granted leave to remain until 18 November 2011. In February 2010 he married a woman of Nigerian nationality and she was granted time limited leave to enter the UK as his partner. They have a child born in the UK in October 2011 and the applicant, his wife and child live together in family in Aberdeen.

[2] A few days prior to the expiry of his Tier 1 category leave to remain, on 16 November 2011, the applicant applied for a variation of his leave to remain. The said application was on the basis that the applicant had a son (M) born in the UK as a result of a relationship in Scotland with a woman of Polish nationality, Ms H, an EU citizen. Ms H and the son (M) live together in Aberdeen. It was not disputed by the parties that the applicant's son (M) was born in November 2008. Some references in the Tribunal decisions to his date of birth in 2011 were in error. The said application was considered by the respondent under article 8 of the European Convention on Human Rights (ECHR) and refused.

[3] The relationship of the applicant with Ms H and the birth of his son(M) predated the marriage of the applicant to his wife. There was dispute about the circumstances of contact between the applicant and his son. There had been contact up to about October 2011 including a short period when the son stayed with the applicant and his wife when Ms H visited Poland. But difficulties developed. The applicant stated contact difficulties arose as a result of a change in attitude of Ms H. Eventually, in about March 2012, the applicant instructed solicitors to facilitate contact with his son. Thereafter in July 2012 instructions were given by the applicant to a second set of solicitors to raise legal proceedings seeking contact. At the date of the hearing of the First-tier Tribunal, there had been virtually no contact for at least nine months between the applicant and his son. An order for maintenance had been made against the applicant and the applicant made payments to the Child Support Agency. Maintenance was not always paid regularly.

[4] An appeal from the respondent's refusal decision was heard by the First-tier Tribunal and refused on 10 July 2012. Permission to appeal to the Upper Tribunal was granted on 30 July 2012. The Upper Tribunal held in the determination promulgated 29 November 2012 in paragraph 25 that:

"In summary: the appellants have not shown that the determination of the First-tier Tribunal erred on any point of law, such that it ought to be set aside, and that determination shall stand. In any event, if a fresh decision were required, that would have been again to dismiss the appeal on all grounds."

It was not disputed by parties that by the date of consideration by the Upper Tribunal, contact between the applicant and his son had been agreed on a voluntary basis between the applicant and Ms H.

[5] On 22 January 2013, an application for permission to appeal to this court was refused by the Upper Tribunal. I quote the reasons in the words recorded by the judge of the Upper Tribunal.

"Reasons for decision: the applications are only insistence upon the appellant's article 8 case. They disclose no arguable propositions of error of law in the FtT or the UT."

Submissions on behalf of the applicant

[6] Counsel for the applicant adopted the note of argument for the applicant. Counsel was critical of the finding by the First-tier Tribunal that the applicant did not have a family life in the UK with his son for the purposes of article 8 ECHR. He prayed in aid Berrehab v Netherlands (1988) 11 EHRR 322.

[7] Counsel accepted that the First-tier Tribunal had purported to address the question about proportionality on the hypothesis that the applicant did have a family life for the purposes of article 8 ECHR. Reference was made to paragraph 38 of the decision of the First-tier Tribunal. Counsel criticised the reasoning in said paragraph and submitted that there was no proper consideration of article 8 and the best interests of the applicant's son (M) on the alternative basis which the First-tier Tribunal purported to consider.

[8] Counsel submitted that the Tribunals had erred in misunderstanding the evidence about the date and circumstances in which the applicant tried to resume contact with his son by contacting solicitors and in wrongly treating the applicant as if he had no legal status in the UK. He submitted that no proper assessment of the article 8 rights of the applicant's child (M) had been made at Tribunal level.

Submissions by counsel for the respondent

[9] Counsel for the respondent adopted the written note of argument on behalf of the respondent. Counsel set out some general propositions which were not in dispute about the legal test at this stage of proceedings. In relation to the merits, counsel drew attention to the fact that the various grounds of appeal, apart from ground four (viii) which was added by minute of amendment, were not argued before the Upper Tribunal. He submitted that these grounds cannot therefore raise an issue of law arising from the decision of the Upper Tribunal under reference to SB v Secretary of State for the Home Department [2013] CSIH 89 and MBR v Secretary of State for the Home Department [2013] CSIH 66.

[10] In relation to the decision making about proportionality, counsel drew attention to the terms of paragraph 38 of the decision of the First-tier Tribunal and submitted that the First‑tier Tribunal was entitled to reach the conclusion. In addition, the Upper Tribunal was entitled to conclude, as they did in paragraph 21, that the conclusion reached was properly open to the First-tier Tribunal and that adequate reasons were given.

[11] In any event the Upper Tribunal stated in paragraph 24:

"If a fresh decision did have to be made, that would start with the fact that a contact agreement is in place (although there was no offer to show the actual regularity and quality of contact). The next point of reference must be the Immigration Rules. These allow for family visits and for applications for entry clearance based on contact with the child. Both such applications require to be made from abroad. I would have found with little hesitation that it is not disproportionate to expect the first appellant to comply with the rules, insofar as he wishes to further his family life with Matthew."

Counsel submitted that it was plain from the approach of the Upper Tribunal that in the Upper Tribunal's opinion, even if the decision was remade, the appeal would have no prospect of success.

Discussion

[12] It was not disputed in this case that the application on behalf of the applicant was lodged before 19 August 2013 and therefore RCS 41.56 does not apply. Counsel for both parties accepted that the relevant test to be applied in considering the application is set out in Hosseini v SSHD 2005 SLT 500. The test is that:

"(a) the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard."

In this case it was not submitted on behalf of the applicant that there is "some other compelling reason".

[13] I consider this to be a relatively simple case which unfortunately has a complicated history. I am satisfied that counsel for the applicant was entitled to make submissions in relation to the appeal on article 8 ECHR grounds broadly interpreted. It did not appear to be in serious dispute that counsel for the applicant was correct in submitting that the First-tier Tribunal fell into error in concluding on the facts that this was a case in which article 8 was not engaged. The Upper Tribunal stated the Lower-tier Tribunal "may have gone a little far in deciding that there was no family life between the appellant and [M]". I read "may have gone a little too far" as an acceptance of an error of law. If that is not the correct interpretation of the Upper Tribunal's decision, I would have no difficulty in concluding that the First-tier Tribunal plainly erred in law in concluding that article 8 was not engaged. There has been an understandable focus in this case about whether article 8 is or is not engaged. As a result it appears to me there has been some lack of focus on the decision making if a view is taken that article 8 is engaged.

[14] The Upper Tribunal and counsel for the respondent relied on the fact that the First-tier Tribunal apparently went on to consider the case on the basis of the hypothesis that article 8 was engaged. It was submitted by counsel for the respondent that this meant the First-tier Tribunal did properly consider the issues. Reference was made to paragraph 38 of the decision of the First-tier Tribunal.

[15] Paragraph 38 of the decision of the First-tier Tribunal states:

"... If however Article 8 has to be considered I have to consider proportionality. The appellant and M have not seen each other for around 9 months and there is little evidence of contact before that although in 2010 [the son] stayed with his father for a short period as Ms H had an emergency she had to attend to in Poland. It is not clear but it seems that this was before [the son] was born. Based on the evidence and the lack of credibility in the appellant's evidence I find that it would not be disproportionate to remove the appellant from the United Kingdom with his wife and their child. Neither of the appellants has any status in the United Kingdom at present. They have overstayed."

[16] In paragraph 39 the First-tier Tribunal purports to consider the best interests of the child (M). The conclusion, which is not in dispute, so far as residence in concerned, is that it is in the best interests of M to be with his mother. The further conclusion is made that if the appellant returns to Nigeria this will not affect M in any detrimental way. That conclusion appears to be based on the fact that there has been for a period very limited contact between M and his father. No reasons are given as to why it is not considered to be in the best interests of M to have the opportunity for present and future contact with his father who appears to be a well-educated, law abiding, high achieving Nigerian who is well settled in family life in the same town as M. M is a child of mixed nationality and his father provides not only a father figure for M but access to Nigerian culture and family life in the city where M resides. Obviously in many family situations where there has been a change of partner and a half sibling born of the new union, there are and can be difficulties. Generally when considering the best interests of a child, the solution to these difficulties, from the perspective of the child's best interests, is not to forcibly separate child and the parent who is seeking contact (or who has contact) and force the parent to remove across the world. It is not in dispute that the best interests of the child, albeit a paramount consideration, are not the only relevant consideration. There may be other considerations which weigh in the balance which would lead to the conclusion that it was not disproportionate in all the circumstances to remove a parent. I cannot however find in the reasoning of the First-tier Tribunal a properly focused consideration of the article 8 rights of M. I do not therefor agree with the conclusions of the Upper-tier Tribunal set out in paragraph 21 to the effect that the Lower-tier Tribunal gave more than adequate reasons for her conclusion in the alternative on the basis that article 8 was engaged.

[17] In paragraph 24, the Upper Tribunal consider the matter on the hypothesis that a fresh decision did have to be made. The Upper Tribunal take into account that a contact agreement was in place at the time of their consideration. The Upper Tribunal then states "the next point of reference must be the Immigration Rules". In that assessment, I can see no structured approach in relation to the best interests of M in considering article 8.

[18] In these circumstances I consider that no proper assessment of the article 8 rights of M, taking into account his best interests as a paramount consideration, has been made. I am persuaded that the appeal would have a real prospect of success and I grant leave to the applicant.

[19] The second issue advanced by counsel on behalf of the applicant was to the effect that the Upper Tribunal had erred in law as it had failed to properly assess the facts and conclude that discretionary leave to remain in the UK should have been granted on the basis of MS (Ivory Coast) [2007] EWCA. In the case of MS there was an undertaking by the Secretary of State not to remove the appellant pending the outcome of contact proceedings (provided they were pursued expeditiously). No such undertaking was given in the present case. The factual circumstances in MS were also very different. In the present case, there is nothing to prevent the applicant from pursuing contact proceedings on a voluntary basis with consent of his former partner or by an application to the court. In any event the issue appears to have been superseded in that contact is now agreed. I am not prepared to grant leave to appeal on this point.