(Immigration and Asylum Chamber) Appeal Number: IA/20068/2012
THE IMMIGRATION ACTS
Heard at Field House
On 7th June 2013
On 28th June 2013
DEPUTY UPPER TRIBUNAL JUDGE M A HALL
Thomas Olawande Olatunji-Odeyemi
(anonymity direction not made)
For the Appellant: Mr A Adeolu of David and Vine Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant appeals against a determination of Judge of the First-tier Tribunal Kaler promulgated on 30th October 2012.
2. Judge Kaler dismissed the Appellant’s appeal against the Respondent’s decision dated 10th September 2012 to remove him from the United Kingdom.
Immigration History and Background
3. The Appellant a Nigerian citizen, born 19th March 1977 was granted a visit visa valid between 15th June 2000 and 15th December 2000 in Lagos, Nigeria. He arrived in the United Kingdom on 9th August 2000.
4. The Respondent’s records indicate that the Appellant made further applications for visit visas on 7th September 2001 and 11th April 2002. He was granted a visit visa on 11th April 2002 which was valid until 12th October 2002.
5. A fourth application for a visit visa was made on 24th February 2003, for a two year visa, but not processed.
6. On 26th October 2004 the Appellant was encountered by UKBA officials while in the United Kingdom, and was served with a Notice to a Person Liable to Removal as he had overstayed the conditions of his leave. He stated that he was residing with his fiancée Janice Mustapha a British citizen.
7. On 8th February 2005 the Appellant applied for leave to remain as the spouse of a person present and settled in the United Kingdom claiming to have entered into a proxy marriage with Janice Mustapha. This application was refused on 28th September 2005 and the Appellant’s subsequent appeal dismissed on 30th March 2006. Applications to appeal further were refused.
8. The Appellant remained in the United Kingdom and was reported as an absconder on 20th November 2006 after failing to report. On 16th May 2007 the Appellant was encountered by UKBA officials and was released on 18th May 2007, with a condition to report weekly. On 2nd July 2007 the Appellant was detained pending removal. On 4th July 2007 representations were submitted to the Respondent relying on Article 8. The Respondent’s decision was maintained.
9. The Appellant then lodged an application for judicial review on 6th July 2007, and permission to proceed was refused on the papers on 2nd August 2007. The Appellant then submitted further representations accompanied by a letter from his then partner Abiola Akinpelu which were submitted on 17th August 2007 and refused on 18th August 2007. Further representations were submitted on 20th August 2007, and a further application for judicial review lodged on 22nd August 2007. The Appellant was released from detention on 4th September 2007. A response to the further representations of 20th August were sent on 2nd October 2007, and the judicial review application was refused on the papers on 23rd November 2007.
10. The Appellant was then encountered by UKBA officials on 12th July 2010, at which time he said he was residing with his current partner Elizabeth Oluwafeyikemi Afolabi. He submitted an application for leave to remain based on Article 8 of the 1950 European Convention on Human Rights on 13th July 2010.
11. There was a further application for leave to remain dated 18th January 2011. There is reference to such an application being submitted on 5th April 2011. The Respondent issued a refusal letter dated 24th May 2011. There was a request to reconsider the application which was refused on 14th August 2012.
12. The Respondent issued a letter dated 10th September 2012 refusing the Appellant’s application to remain in the United Kingdom and issued a Notice of Immigration Decision of the same date, indicating that a decision had been taken to remove the Appellant from the United Kingdom.
13. The Appellant appealed and his appeal was heard by Judge Kaler on 22nd October 2012. The judge noted that the Respondent’s refusal letter considered the Appellant’s application to remain pursuant to Article 8, in relation to the new Immigration Rules introduced on 9th July 2012 by HC 194, which rules were designed to address Article 8 claims in relation to family and private life. The judge found that because the Appellant’s application had been made prior to 9th July 2012, it fell to be decided in accordance with the rules in force prior to that date. The judge concluded that the Appellant did not qualify for leave to remain under the Immigration Rules, and went on to consider his appeal under Article 8 of the 1950 Convention.
14. The judge found that the Appellant and his partner had not entered into a marriage recognised by United Kingdom law, but accepted that they had established family life as they had been living together since 2009, and that they had a genuine relationship and at that time had two children, and were awaiting the birth of their third child. It was accepted that the Appellant’s partner had indefinite leave to remain in the United Kingdom, and that the youngest child was a British citizen, having been born after the Appellant’s partner had been granted indefinite leave to remain. The judge concluded that it would be reasonable for the family to return to Nigeria with the Appellant, or alternatively it was reasonable to expect the Appellant to make an application for entry clearance from Nigeria. Therefore the appeal was dismissed.
15. The Appellant applied for permission to appeal to the Upper Tribunal, and permission to appeal was granted by Upper Tribunal Judge Kebede on 5th December 2012 in the following terms;
1. The Appellant, a citizen of Nigeria, appealed against the Respondent’s decision to remove him from the United Kingdom. First-tier Tribunal Judge Kaler dismissed his appeal on Article 8 grounds.
2. The grounds of appeal essentially assert that the judge erred in her interpretation and findings of proxy marriages in Nigeria and that she failed to give consideration to the decisions in Ruiz Zambrano (European citizenship)  EUECJ Case C-34/09 OJ2011C130/2 and ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4 in assessing the best interests of the children.
3. Arguably the judge’s assessment of the best interests of the children did not give adequate consideration or weight to the fact of their British citizenship, in accordance with the principles in Zambrano. The brief reference in paragraph 27 was arguably inadequate.
4. Whilst I see little merit in the other grounds of appeal, I grant permission on all grounds.
16. Directions were issued that there should be a hearing before the Upper Tribunal to ascertain whether the First-tier Tribunal had erred in law.
17. At the hearing before me on 9th April 2013 Mr Adeolu relied upon the grounds contained within the application for permission to appeal. I was told that when the appeal was heard by the First-tier Tribunal, the Appellant and his partner had two children, and the youngest was a British citizen. Since that hearing a third child had been born on 10th February 2013 who was also a British citizen. It was argued on behalf of the Respondent that the judge’s decision was open to her on the evidence and the determination should stand.
18. I decided that the judge had erred in her consideration of the best interests of the children. There was no reference to either Zambrano or ZH (Tanzania), although that alone did not amount to an error of law. However it was not clear from reading the determination that the principles in Zambrano and ZH (Tanzania) had been considered and applied. Therefore the decision of the First-tier Tribunal was set aside. Both representatives agreed in view of the nature of the challenge to the determination, that the judge’s findings of fact in paragraph 19 of the determination should stand, and therefore those findings were preserved. The hearing was then adjourned, as Mr Adeolu indicated that he wished to call witnesses to give further evidence in relation to the best interests of the children.
The Upper Tribunal Hearing, 7th June 2013
19. The Appellant and his partner Elizabeth Afolabi both attended the hearing. Mr Adeolu indicated that he would not be calling them to give further evidence, and they relied upon the evidence contained in their witness statements dated 17th October 2012 in the Appellant’s case, and 31st August 2012 in the case of his partner. However Mr Adeolu indicated that evidence would be given by Ms Adewunmi Onikoyi who is the mother of the Appellant’s partner.
20. The British passports of the Appellant’s youngest two children were produced. It was agreed that the issue before me related to Article 8 of the 1950 Convention, and that the Immigration Rules introduced on 9th July 2012 did not apply, as the application for leave to remain had been made prior to that date. Mr Melvin provided Mr Adeolu and myself with a copy of the written submissions that he intended to make at the conclusion of the hearing.
The Evidence of Adewunmi Onikoyi
21. Ms Onikoyi adopted her statement dated 7th June 2013. In brief summary she confirmed that she arrived in the United Kingdom in May 1993 as a visitor and met her ex-husband and married and was subsequently granted leave to remain in the United Kingdom. She is now a single parent. The Appellant’s partner is the second of her five children, and she was born in Nigeria.
22. She described the Appellant’s partner as having sickle cell trait which in the absence of medication could be fatal. Ms Onikoyi indicated in her statement that an individual with this type of medical condition needed constant medical attention and personal care and support, and her daughter required somebody to be with her all the time as crises usually began in the middle of the night, and which could result in death if there was nobody to promptly attend to her.
23. Ms Onikoyi lives with her three daughters in London and the Appellant’s partner lives in Kent. Ms Onikoyi has another daughter who is married and who lives with her husband and three children in the United Kingdom.
24. Ms Onikoyi explained that she could not relocate back to Nigeria with the Appellant’s partner, because she has three teenage daughters and a business in the United Kingdom and has lived here for twenty years.
25. When cross-examined it was put to Ms Onikoyi that she was not expected to relocate back to Nigeria, and she said that she was aware of that.
26. In answer to a question that I put, Ms Onikoyi did not know why neither her daughter nor the Appellant mentioned her daughter’s sickle cell trait in their statements or evidence.
The Respondent’s Submissions
27. Mr Melvin relied upon his written submissions and the refusal letter dated 10th September 2012. It was accepted that the starting point for consideration of the best interests of the children is that they be brought up by their parents. There was no evidence that returning to Nigeria would prejudice the welfare of the children. It was not accepted that the Appellant is the primary carer of the children. It was not accepted that if the Appellant was required to leave the United Kingdom, that this would prejudice the children’s welfare. The evidence indicated that the Appellant’s partner has a large number of family members in the United Kingdom who could assist her if needed.
28. Mr Melvin accepted that because two of the three children are British, it would not be reasonable to expect the family to leave the United Kingdom.
29. However the Appellant should still be required to satisfy the Immigration Rules. It would be proportionate, in view of his appalling immigration history, for him to be removed from the United Kingdom and to make an application for entry clearance from abroad. Mr Melvin submitted that it would be quite wrong for the Appellant, who cannot satisfy the Immigration Rules, to be allowed to circumvent those rules by relying on Article 8.
The Appellant’s Submissions
30. Mr Adeolu submitted that it was clear that the Appellant had established a family life with his partner and children in the United Kingdom. Mr Adeolu submitted that the issue in this appeal related to proportionality and I was asked to take into account the principles in Huang  UKHL 11 and Chikwamba  UKHL 40.
31. I was asked to accept that the Appellant’s partner was not in the best of her health because she had sickle cell trait and there was no foundation in Mr Melvin’s comment that there were a number of family members in the United Kingdom who could offer support. I was reminded that the Appellant’s mother-in-law who had given evidence, was in full-time employment and lived in southeast London, whereas the Appellant and his partner live in Kent.
32. Mr Adeolu referred to Zambrano, in support of his proposition that if children are citizens of the United Kingdom, then their father, the Appellant, should be given the opportunity to find employment in the United Kingdom. I was asked to accept that if the Appellant was forced to leave the United Kingdom, that would amount to constructive removal of British children.
33. Mr Adeolu pointed out that neither the Appellant nor his partner have any savings either in the United Kingdom or in Nigeria, and have no home in Nigeria. The Appellant’s partner has indefinite leave to remain, and Mr Adeolu then went on to submit that all family support was in the United Kingdom, which conflicted somewhat with his contention that Mr Melvin had no basis for making that submission.
34. Mr Adeolu referred me to paragraph 55(4) of Mahmood  1 WLR 840 which states that Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a state if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled.
35. I was also referred by Mr Adeolu to Noruwa Nigeria  UKIAT 00016 at paragraph 44 which indicates that no decision affecting an individual is lawful unless it is proportionate. I was therefore asked to find that in this case the Respondent’s decision was disproportionate and therefore not in accordance with the law.
36. At the conclusion of oral submissions I reserved my decision.
37. I set out below paragraph 19 of the First-tier Tribunal determination which are preserved findings of fact;
(i) The Appellant has been living in the UK since 2002 since he was aged 25. He has been here unlawfully for most of that period.
(ii) The Appellant’s partner has been in the UK since she was a child. She is now aged 23 and she was only granted indefinite leave to remain on 14th September 2009.
(iii) The Appellant and his partner have undergone two marriage ceremonies but they are not legally married in the eyes of Nigerian or UK law.
(iv) The Appellant and his partner have established family life. They live together with their two children. The only British citizen amongst them is the younger child. The third child will also be a British citizen.
(v) The older child attends nursery a few days a week and the younger child has childcare, also a few days a week.
(vi) The partner’s mother and sisters live in the UK. They are a close-knit family.
(vii) The Appellant has cousins in the UK.
(viii) The Appellant has siblings and other relatives in Nigeria.
(ix) The Appellant’s partner has relatives in Nigeria.
(x) The Appellant and his partner are not working at present.
(xi) The Appellant has a BSc in multimedia and technology (gained in the UK) and he has worked in the past. One of his jobs was as a security guard.
38. The Appellant did not seek to dispute his immigration history either before the First-tier Tribunal or the Upper Tribunal. That history is set out at the beginning of this determination.
39. As the Immigration Rules introduced as from 9th July 2012 by HC 194, designed to address Article 8 claims, do not apply in this appeal, because the Appellant’s application for leave to remain was made prior to 9th July 2012, I am considering Article 8 of the 1950 European Convention on Human Rights, which states;
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
40. When considering Article 8 the guidance given in Razgar  UKHL 27 indicates that the following questions should be considered;
(i) Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life?
(ii) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
(iii) If so, is such interference in accordance with the law?
(iv) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(v) If so, is such interference proportionate to the legitimate public end sought to be achieved?
41. The decision in Beoku-Betts  UKHL 39 means that if I find that family life exists which engages Article 8, then I must consider the family lives of all members of the family, not only the Appellant.
42. In this case I am satisfied that the Appellant has established a family life with his partner and his three children. I am also satisfied that he has established a private life in the United Kingdom. I am therefore satisfied that Article 8 is engaged, and that, leaving aside the question of Article 8, the Respondent’s decision is in accordance with the law. It has been accepted that the Appellant cannot succeed under the Immigration Rules.
43. I also conclude that the Respondent’s decision is necessary, as it is important that a state has the right to maintain firm, fair and effective immigration control, and in this case that is necessary for the economic well-being of the country, for the prevention of disorder or crime, and for the protection of the rights and freedoms of others.
44. In my view, the main issue in this appeal is whether the Respondent’s decision to remove the Appellant is proportionate. The Respondent must prove that it is.
45. When considering proportionality it was confirmed in ZH (Tanzania)  UKSC 4 that the best interests of a child must be a primary consideration. The best interests of a child broadly means the well-being of a child, and the best interests must be considered first, although those interests could be outweighed by the cumulative effect of other considerations. It was confirmed that although nationality is not a “trump card” it is of particular importance in assessing the best interests of a child.
46. In MK India  UKUT 475 (IAC) the Upper Tribunal confirmed that consideration of the best interests of a child is an integral part of the Article 8 balancing exercise, and not something apart from it, but it is a matter which has to be addressed first as a distinct inquiry. Factors relating to the public interest in the maintenance of effective immigration control must not form part of the best interests of the child consideration.
47. The Upper Tribunal confirmed in E-A Nigeria  UKUT 315 (IAC) that the correct starting point in considering the welfare and best interests of a young child would be that it is in the best interests of a child to live with and be brought up by his or her parents, subject to any very strong contra-indication.
48. In this appeal, the dates of birth of the children are 5th September 2009, 17th April 2011, and 10th February 2013. The two youngest children are British citizens.
49. My primary finding is that it would be in the best interests of the children to remain in the United Kingdom with both their parents.
50. As two of the children are British citizens I have to take into account the principles outlined in Ruiz Zambrano, which were considered by the Upper Tribunal in Omotunde (best interests - Zambrano applied - Razgar) Nigeria  UKUT 247 (IAC) and Sanade and others (British children - Zambrano - Dereci)  UKUT 48 (IAC). In Omotunde it was confirmed that where there is a proposed administrative removal or deportation of one or both of his non-national parents, the welfare of a child, particularly a child who is a British citizen is a primary consideration. The second paragraph to the head note reads;
“2. National courts must engage with the question whether removal of a particular parent will deprive [the child] of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”
51. I think it appropriate to set out paragraphs 5 and 6 of the head note to Sanade as follows;
5. Case C-34/09 Ruiz Zambrano now makes it clear that where the child or indeed the remaining spouse is a British citizen and therefore a citizen of the European Union, as a matter of EU law it is not possible to require the family as a unit to relocate outside of the European Union or for the Secretary of State to submit that it would be reasonable for them to do so.
6. Where in the context of Article 8 one parent (“the remaining parent”) of a British citizen child is also a British citizen (or cannot be removed as a family member or in their own right), the removal of the other parent does not mean that either the child or the remaining parent will be required to leave, thereby infringing the Zambrano principle, see C-256/11 Murat Dereci. The critical question is whether the child is dependent on the parent being removed for the exercise of his Union right of residence and whether removal of that parent will deprive the child of the effective exercise of residence in the United Kingdom or elsewhere in the Union.
52. In this appeal, I do not find that the children are solely dependent upon the Appellant. They are dependent on both their parents. They are not however dependent upon the Appellant for the exercise of their right to reside in the United Kingdom, as two of the children are British citizens, and therefore have the right to reside in this country on that basis. The issue that has to be decided is whether the Appellant’s removal would deprive them of the effective exercise of residence in the United Kingdom.
53. I appreciate that the eldest child is not a British citizen, so when I refer to the rights of residence of the children, I am referring to the two children who are British citizens, although it is not proposed that the children should be separated from each other. As the jurisprudence referred to above indicates that it would not be reasonable to expect the family as a unit to relocate outside the United Kingdom, if the Appellant was removed to Nigeria, the three children would remain with the Appellant’s partner, their mother, who was granted indefinite leave to remain in the United Kingdom on 14th September 2009.
54. The issue to be decided is whether the Appellant’s removal would deprive the children of the effective exercise of residence in the United Kingdom. This would not be the case, in my view, if there was only a short period of separation, but it would be the case, if the Appellant, when returned to Nigeria, was unable to satisfy the Immigration Rules to enable him to return to this country.
55. The Respondent’s position as outlined by Mr Melvin, is that it would be proportionate for the Appellant to be removed to Nigeria, so that he could make an application for entry clearance through the proper channels. At first sight this is readily understandable, given the Appellant’s immigration history. In considering this issue, I have taken into account the principles outlined in Chikwamba  UKHL 40, which were considered by the Court of Appeal in Secretary of State for the Home Department v Hayat (Pakistan)  EWCA Civ 1054. Elias LJ summarised the principles in paragraph 30 which is set out below;
“30. In my judgment, the effect of these decisions can be summarised as follows;
(a) Where an applicant who does not have lawful entry clearance pursues an Article 8 claim, a dismissal of the claim on the procedural ground that the policy requires that the applicant should have made the application from his home state may (but not necessarily will) constitute a disruption of family or private life sufficient to engage Article 8, particularly where children are adversely affected.
(b) Where Article 8 is engaged, it will be a disproportionate interference with family or private life to enforce such a policy unless, to use the language of Sullivan LJ, there is a sensible reason for doing so.
(c) Whether it is sensible to enforce that policy will necessarily be fact sensitive; Lord Brown identified certain potentially relevant factors in Chikwamba. They will include the prospective length and degree of disruption of family life and whether other members of the family are settled in the UK.
(d) Where Article 8 is engaged and there is no sensible reason for enforcing the policy, the decision maker should determine the Article 8 claim on its substantive merits, having regard to all material factors, notwithstanding that the applicant has no lawful entry clearance.
(e) It will be a very rare case where it is appropriate for the Court of Appeal, having concluded that a lower Tribunal has disproportionately interfered with Article 8 rights in enforcing the policy, to make the substantive Article 8 decision for itself. Chikwamba was such an exceptional case. Logically the court would have to be satisfied that there is only one proper answer to the Article 8 question before subsisting its own finding on this factual question.
(f) Nothing in Chikwamba was intended to alter the way the courts should approach substantive Article 8 issues as laid down in such well-known cases as Razgar and Huang.
(g) Although the cases do not say this in terms, in my judgment if the Secretary of State has no sensible reason for requiring the application to be made from the home state, the fact that he has failed to do so should not thereafter carry any weight in the substantive Article 8 balancing exercise.”
56. In this appeal, I have to consider the prospective length and degree of disruption of family life, taking into account that the Appellant’s partner and two of his children are lawfully settled in the United Kingdom. The Appellant may have considerable difficulty in satisfying the maintenance requirements of the Immigration Rules, to enable him to be granted entry clearance. If he cannot satisfy the Immigration Rules, then his partner would be left in the United Kingdom to look after three very young children, who would be separated from their father.
57. At this stage I will deal with the claim made by the partner’s mother that the Appellant’s partner needs constant medical care. I note that neither the Appellant nor his partner, made any mention in their witness statements, or in their evidence before the First-tier Tribunal, of any significant health problems suffered by the Appellant’s partner. I have checked through the Appellant’s bundle, and note that it is recorded in the medical records relating to her pregnancy, that she does have sickle cell trait. There has however never been any suggestion, prior to her mother’s evidence, that she needs constant or particular medical care, and there has been no medical evidence produced. I therefore do not accept the claim of the partner’s mother, that constant medical care is required. The Appellant’s partner does have family members in the United Kingdom who may be able to assist her, in the absence of the Appellant, although there is no evidence that those family members live close to her, as I accept that her mother and her sisters live in London, while she lives in Kent.
58. In considering the proportionality balancing exercise, I take into account that the Appellant and his partner both wish to live in the United Kingdom with their children. I have taken into account the length of time that they have lived here, and also taken into account the Appellant’s immigration history, which has involved him overstaying and working illegally, and absconding and failing to report as directed. He has made numerous applications in an attempt to remain in the United Kingdom, all of which have failed, yet he has remained in this country.
59. If the Appellant did not have children, the result of this appeal would be clear cut, and he would be removed to Nigeria. That however is not the position, and I am faced with a situation in which if the Appellant is removed to Nigeria, and he cannot satisfy the Immigration Rules in order to return, then his family will be separated, or his partner and children would be forced to leave the United Kingdom and join him in Nigeria. As two of those children are British citizens, this could not be regarded as reasonable. The fact that the Appellant has an appalling immigration history has to be taken into account, but it is also the case that the Appellant in ZH (Tanzania) had an appalling immigration history, and on the facts of that case, that did not outweigh the best interests of the children.
60. When considering proportionality, the House of Lords stated in paragraph 20 of Huang  UKHL 11;
“20. In an Article 8 case where this question is reached, the ultimate question for the Appellate Immigration Authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide.”
61. As I find that it would not be reasonable to expect the Appellant’s British children to leave the United Kingdom and travel to Nigeria, and I do not find that if the Appellant was removed, the period of separation would be short, and it is in the best interests of the children to be brought up by both parents, I conclude, despite the Appellant’s appalling immigration history, that the Respondent’s decision to remove him would be disproportionate.
The decision of the First-tier Tribunal involved the making of an error on a point of law and was set aside. I substitute a fresh decision. The appeal is allowed on human rights grounds in relation to Article 8 of the 1950 European Convention on Human Rights.
The First-tier Tribunal did not make an anonymity direction. There has been no request for anonymity and the Upper Tribunal makes no anonymity direction.
Signed M A Hall Dated 25th June 2013
Deputy Upper Tribunal Judge M A Hall
TO THE RESPONDENT
No fee was paid or is payable. There is no fee award.
Signed M A Hall Dated 25th June 2013
Deputy Upper Tribunal Judge M A Hall