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Cite as: [2019] ScotCS CSOH_28

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OUTER HOUSE, COURT OF SESSION

[2019] CSOH 28

P919/18

OPINION OF LORD BURNS

In the petition

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Petitioner

Respondent

15 March 2019

Petitioner: Winter; Drummond Miller LLP

Respondent: Webster; Office of the Advocate General

[1] This is a petition for judicial review of a decision of the Upper Tribunal Immigration

and Asylum Chamber dated 8 June 2018 refusing the petitioner permission to appeal to that

Tribunal from a decision of the First-tier Tribunal (FtT).

[2] The petitioner is a Nigerian national born 3 July 1978. He came to the United

Kingdom on 26 January 2007 having married an EU national after which he obtained a

spouse visa valid until 8 July 2007. He then was granted an EEA residence card for a period

of five years. His wife returned to her country of origin but the petitioner stayed in the

United Kingdom. He had a relationship with a woman here by whom he had a child B who

was born in the UK on 23 April 2009. The petitioner did not live with the child’s mother but

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had regular contact with the child until the relationship broke down in 2014. Allegations

had been made against him concerning the child B and another older child of the petitioner

which were false and in respect of which no criminal proceedings were taken. An

application for a permanent EEA residence card was refused on 23 April 2013. He applied

for leave to remain on 23 May 2016 on the basis that he was the parent of a United Kingdom

national and on the basis of his private life. That application was considered under the

10 year parent and private life routes under appendix FM and paragraph 276ADE(1) and

outside the Immigration Rules. The application was refused in a letter dated 5 February

2017. Permission to appeal was refused by the FtT. He then applied for permission to

appeal from the Upper Tribunal. That was refused on 8 June 2018.

[3] The FtT judge was satisfied that the petitioner was the father of B. The central issue

was whether or not the petitioner had established that he had a genuine and subsisting

parental relationship with her. If so, he would come under the exception set out in EX1 of

Appendix FM of the Immigration Rules. Even if he was unsuccessful under paragraph EX1,

he could succeed outwith the rules in terms of section 117B of the Nationality, Immigration

and Asylum Act 2002 since the public interest would not require his removal if he had a

genuine and subsisting parental relationship with B and it would not be reasonable to expect

B to leave the United Kingdom. The latter proposition was not in dispute.

[4] The evidence before the FtT demonstrated that the petitioner had some continuing

contact with B between 2009 and 2014 until the petitioner’s relationship with B’s mother

came to an end. The petitioner explained in his statement to the FtT that he would go over

and see B and her mother and they would occasionally come to his house to stay over. Then

he did not see B for a period. That was because of the allegations made against him and

because of “processes and procedures” conducted by the Social Work Department he could

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not see B. He stated that he was advised by solicitors not to try and establish contact. In the

course of 2015 he still wanted to see B and decided to approach family law solicitors in

Glasgow for assistance. However he had by that time lost touch with B’s mother and did

not know where she was. He found an old contact number for the mother and discovered

that they were in Walsall. He arranged to see B in Walsall in about September 2016.

Around this time the child was taken from her mother and put into care in Walsall. When

the petitioner learned of this, he instructed a family law solicitor in Walsall to obtain access

to her. The family court was asked to allow access and there was evidence before the FtT

that the first session of supervised contact with B occurred on 26 October 2017. There was a

plan for this to develop but, at the time of the hearing, he was still waiting to hear further

from the local authority about that plan.

[5] The FtT refused the appeal on the basis that the petitioner had not demonstrated that

he had a genuine and subsisting parental relationship with B. She had always stayed with

her mother and the petitioner had never stayed with the child on any permanent basis. He

had never tried to obtain custody of her. Although it would not be reasonable for B to leave

the United Kingdom and be separated from her mother, she could remain in the United

Kingdom even if the petitioner went back to Nigeria. The judge considered the matter

under reference to article 8 of ECHR and section 117B of the 2002 Act. It was noted that the

petitioner was an over-stayer. There was no evidence that he tried to keep in touch with his

other children. The judge accepted that the child would be happy to see the petitioner but

had only seen him for one day in 2017 under supervision. It was noted that one of the

witnesses led on behalf of the petitioner had lied in his statement to the Tribunal and

another was patently unreliable.

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[6] The First-tier Tribunal judge also noted that the petitioner had been refused a

permanent resident card in April 2013 and then did nothing to regularise his immigration

status until 23 May 2016 when he had made the current application. It was only then that he

sought an order for contact with B. The FtT judge concluded that his relationship with B

had been exaggerated and he had taken the steps he had in respect of establishing contact

with her in order to advance his application for permanent residence.

[7] The FtT refused permission to appeal that decision and the grounds of appeal to the

Upper Tribunal at paragraph 5 criticised the approach of the FtT. It was asserted that the

FtT’s findings failed to take account of material evidence before it and pointed to the fact

that the petitioner had regular contact with the child prior to her being taken into care.

Contact thereafter was not possible because of social work processes and procedure. He had

consulted a solicitor in order to obtain access to his daughter but delays were caused by the

child’s mother’s move to Walsall. He had then attempted to obtain contact through the

family courts there.

[8] The Upper Tribunal judge refused permission to appeal. The FtT judge was said to

have undertaken a thorough assessment of the petitioner’s claim and was entitled to

conclude, upon the evidence before it, that the petitioner did not have a genuine and

subsisting relationship with B.

[9] That decision was itself criticised by Mr Winter who appeared on behalf of the

petitioner. He said that the error in law of the Upper Tribunal was that the judge’s findings

were not supported or adequately supported by what was set out in paragraph 5 of the

application for permission to appeal. That paragraph identified errors demonstrating that

the assessment of the FtT was flawed and reference was made to the petitioner’s statement

to the FtT paragraphs 21-40.

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[10] I am not able to accept that the Upper Tribunal fell into error in dealing with the

application for permission to appeal. The description of the FtT’s assessment of the

petitioner’s claim as a thorough assessment does not demonstrate an error of law. The FtT

had considered the evidence before it both from the petitioner and from his supporting

witnesses. The judge had regard to the history of the petitioner’s relationship with B and to

the apparent difficulties that had been encountered by the petitioner in that regard. The

judge did not leave any important considerations out of account. The central problem was

that the judge was not convinced that the efforts by the petitioner to see his daughter were

motivated by a desire to have a genuine and subsisting relationship with the child. Rather,

as was explained in paragraph 28, he had “exaggerated” his relationship so as to be allowed

to remain in the United Kingdom. Such a conclusion was a legitimate one upon the basis of

the evidence placed before the FtT judge. His contact with his daughter prior to the

breakdown of the relationship with her mother was intermittent. He had never lived with

either the mother or his daughter. He had never tried to get custody of his daughter

although he was aware that she was in care (see paragraph 23 of the FtT’s decision). He had

no contact with her thereafter. There was no evidence that he tried to see her when in care

and when she must have needed his support. The only contact with his daughter had

occurred a matter of weeks prior to the hearing before the FtT.

[11] Furthermore, the tribunal judge was plainly unimpressed with the quality of the

witnesses which the petitioner led on his behalf. The second witness was the nephew of the

petitioner but he had never met B and when shown the letter which purported to form his

evidence, said that he had not written it. When asked if he had ever known B he said that he

“would need to make sure”. The FtT judge describes this witness as “a waste of time”. The

lack of credibility of this witness impacted upon the petitioner’s own credibility. The

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evidence directed to the genuine and subsisting relationship between the petitioner and his

daughter was of such quality that the FtT cannot be faulted for having rejected the

contention that the relationship was as the petitioner claimed it to be. Furthermore, because

of the coincidence in time in progressing his application for a permanent residence card and

of his attempts to obtain contact with his daughter from the family court in England, it was a

legitimate inference that these efforts were made, not to advance his relationship with the

child, but to advance his application to remain in the United Kingdom.

[12] Mr Winter also argued that the approach of the FtT was inconsistent with cases such

as SR Pakistan 2018 UKUT 00334 (IAC) paragraphs 35-40 and Makhlouf v SSHD 2007 3 All

ER 1 paragraphs 48-49 in which Lady Hale had made it clear that the orders of a family

court reflected what was in the best interests of the children and there would have to be a

very good reason to conclude that an order from the family court was not in the best

interests of a child. I accept that, as a general rule, the FtT judge should give careful

consideration to the order of the family court as indicating what is in the best interests of a

child. However, in this case, the FtT found that the petitioner’s actions in seeking such

orders were motivated by self-interest. The FtT had seen and heard the petitioner and his

witnesses and had considered the petitioner’s evidence of how he had interacted with his

daughter against the context of his immigration history. This was not a dimension of the

relationship between the petitioner and B which the family court would have been able to

examine.

[13] It is clear from paragraph 30 of the FtT’s decision in particular that the best interests

of the child were properly considered. It is acknowledged that she had expressed a desire to

see the petitioner but it was also pointed out that there will be no significant difference in

the child’s life if the petitioner was removed, having regard to the history of the relationship

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between the petitioner and B. Indirect contact could take place and B could be taken to

Nigeria to see her father.

[14] In all the circumstances I find that the Upper Tribunal made no error in refusing

permission to appeal. The FtT’s finding that the petitioner’s relationship with his daughter

was not subsisting or genuine was a conclusion which the FtT was entitled to come to upon

the evidence before it. Furthermore, the FtT’s findings on the motivation behind what

moves the petitioner had made in seeking to re-establish a relationship with the child were

conclusions properly available to it upon the view of the evidence reached.

[15] I shall therefore refuse the prayer of the petition and reserve meantime all questions

of expenses.