THE IMMIGRATION ACTS
Heard at Field House, London
Decision & Reasons Promulgated
On 17 April 2018
DEPUTY UPPER TRIBUNAL JUDGE McCARTHY
TAIWO OLUMAYOWA AJAYI (1)
BIODUN FOLASADE AWOLEYE (2)
M D A (3)
(anonymity direction NOT MADE)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr N B Khan, instructed by A2 Solicitors
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The first and second appellants, born respectively on 28 July 1976 and 18 April 1981, are married. They are the parents of the third appellant, who was born in the UK on 14 August 2008. All are citizens of Nigeria.
2. The appellants' human rights claim was refused by the respondent on 22 December 2015. They appealed against that decision, as was their right under s.82(1)(b) of the Nationality, Immigration and Asylum Act 2002. Their appeals were dismissed by First-tier Tribunal Judge M B Hussain on 7 August 2017.
3. The appellants appeal with permission granted by First-tier Tribunal Judge Ford to the Upper Tribunal against the decision and reasons statement. Their grounds of appeal in summary challenge the approach Judge Hussain took to the question of whether it was reasonable to expect the third appellant to leave the UK. The grounds acknowledge that the proper approach to this question has been determined by the Court of Appeal in R (MA (Pakistan) & Ors) v SSHD & Anor  EWCA Civ 705,  Imm AR 53, which was handed down on 7 July 2016.
4. Mr Khan reminded me that pages 20 to 105 of the appellants' bundle contained evidence relating to the third appellant. He alleged that Judge Hussain had not had proper regard to that evidence. Mr Khan argued that Judge Hussain had failed to consider s.117B(6) of the 2002 Act and had failed, therefore, to assess the reasonableness of the third appellant's expulsion from the UK in light of all the evidence. Mr Khan also relied on an argument that Judge Hussain had not undertaken a full "best interests" assessment of the third appellant.
5. Mr Bramble suggested that there was no legal error. Judge Hussain had approached the appeals from the perspective of paragraph 276ADE(1)(iv) of the immigration rules. That provision required the judge to assess the reasonableness of expecting the third appellant to leave the UK. The Court of Appeal identified in MA (Pakistan) that this was equivalent to the similarly worded provision in s.117B(6). There was no material difference in approach.
6. Judge Hussain accepted the third appellant was a child who had been resident in the UK for more than seven years at the date of application. He identified the best interests of the child in paragraph 34 and 35, including his access to education, his linguistic abilities and what linguistic difficulties he might encounter in Nigeria, and the risk of destitution he might face in Nigeria. Judge Hussain assessed whether the expulsion of the appellants as a family unit would be proportionate and, because of the very poor immigration histories and the lack of credibility of the first two appellants, concluded it was.
7. Mr Bramble argued that these findings were open to Judge Hussain and that the complaint was merely a challenge to those factual findings. For that reason, he submitted, the grounds failed to identify any sustainable legal error.
8. Having listened to the competing submissions, and having examined the documents provided, I have decided that there is legal error and that it is such as to require the decision and reasons statement to be set aside.
9. The legal error is evident in paragraph 38. Judge Hussain states that he was considering the situation as at the date of application. Although that would have been correct were the judge limited to reviewing the immigration rules and the provisions of paragraph 276ADE(1), it must be recalled that the appeal was against a refusal of a human rights claim. He had to decide not whether the immigration rules were or were not met but whether the refusal decision was unlawful under s.6 of the Human Rights Act 1998.
10. Section 85(4) of the 2002 Act specifies that the Tribunal "may consider any matter it thinks relevant to the substance of the decision, including a matter rising after the date of decision." It is evident from paragraph 38 of his decision that Judge Hussain considered the fact the third appellant was over nine years old at the date of hearing to be relevant to his human rights case yet restricted himself to considering the situation as he was at the date the human rights claim was made, at which time the third appellant was just over seven years old. The failure of Judge Hussain to consider matters arising after the date of decision despite identifying those issues as potentially putting the third appellant in a more favourable position is wrong in law.
11. In finding this to be an error of law, I recall that there is a plethora of case law recognising that the older a child is, the less reasonable its expulsion will be (see for example Azimi-Moayed & Ors (decisions affecting children; onward appeals: Iran)  UKUT 197). The fact the third appellant has spent a further two years in the UK since the application was made cannot be ignored.
12. In addition, I have serious concerns that Judge Hussain has failed to have regard to the Court of Appeal's comments at paragraph 46 of MA (Pakistan):
46. Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled "Family Life (as a partner or parent) and Private Life: 10 Year Routes" in which it is expressly stated that once the seven years' residence requirement is satisfied, there need to be "strong reasons" for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child's best interests will be to remain in the UK with his parents as part of a family unit, and that must rank as a primary consideration in the proportionality assessment.
13. The respondent's policy requires there to be strong reasons for refusing leave. The respondent cannot apply a policy arbitrarily because to do so would be contrary not only to public law but to article 8(2). Therefore, it was necessary for Judge Hussain to identify whether strong reasons justifying the refusal of leave existed. He made no such assessment.
14. Having found there to be legal error, and that the nature of the error requires Judge Hussain's decision to be set aside, I considered whether the appeal could be remade in the Upper Tribunal. I indicated this was not an appeal that needed to be remitted to the First-tier Tribunal for a fresh hearing because there is no significant dispute in the evidence. I would need to hear evidence to bring the situation up to date, a further seven months having passed since Judge Hussain's decision. Mr Khan took instructions and confirmed that the first two appellants were present and willing to give additional evidence. Mr Bramble had no objection.
15. Prior to the hearing, I had reviewed the documentary evidence provided to the First-tier Tribunal. This includes the respondent's bundle submitted on 13 March 2017 (in accordance with rule 24 of the 2014 FtT Procedure Rules and directions) and the appellants' 169-page bundle sent on 11 July 2017.
16. The first appellant adopted his witness statement of 11 July 2017. He stated that he would be unable to resettle in Nigeria because the situation is very difficult in terms of the economy, security, employment, and access to basic amenities. The first appellant last visited Nigeria in 2008. He had not maintained regular contact with anyone in Nigeria other than his parents. His father is 82 and his mother is 76. The first appellant said the third appellant could not speak Yeruba. He also explained that he did not apply for his eldest daughter to stay in the UK for financial reasons.
17. In response to questions from Mr Bramble, the first appellant confirmed the third appellant was currently in year 5 at school. He was involved in football and kung fu outside of school.
18. The second appellant adopted her witness statement of 11 July 2017. She stated that the family could not relocate to Nigeria because the third appellant had friends here. He was involved in kung fu and football clubs. He also had church and school friends. The second appellant believed it would be very difficult for the third appellant to move. The second appellant has not been to Nigeria since 2008. She maintains contact with her parents who are in Nigeria but it has been a while since she contacted them. The second appellant mentioned that the third appellant has nosebleeds in hot weather.
19. In response to questions from Mr Bramble, the second appellant clarified that the third appellant was prescribed a cream for his nosebleeds. She also confirmed she had no medical evidence regarding the third appellant. Neither of her other children had any health concerns.
20. Mr Bramble relied on the reasons for refusal letter dated 22 December 2015. He submitted that it this appeal involved the first two appellants only, then it would be without question that the public interest would outweigh their personal circumstances because they were overstayers. They would be expected to deal with any economic and employment difficulties in Nigeria, particularly as there was no independent evidence to support their allegations of such difficulties being present in Nigeria.
21. Mr Bramble recognised that the presence of the children, particularly the third appellant, changed the position considerably. The third appellant was a qualifying child for the purposes of s.117B(6) of the Nationality, Immigration and Asylum Act 2002 and the question was whether it was reasonable to expect him to leave the UK with the first and second appellants. Mr Bramble recognised that the third appellant had lived all his life in the UK and at the date of re-hearing in the Upper Tribunal was 9 years and 8 months old. Mr Bramble accepted the evidence that the third appellant was involved in activities outside school and was developing his own social life. Bearing in mind the guidance given in MA (Pakistan), Mr Bramble candidly admitted he could not go further.
22. With respect to the other two children who would be affected by the decision to expel the family unit, Mr Bramble reminded me they were not included in the applications and were not part of the appeals directly. He added that neither was a qualifying child for the purposes of s.117B(6) and neither benefited from paragraph 276ADE(1)(iv) because no applications had been made and because they are too young. However, Mr Bramble accepted these children are part of the same family unit.
23. Turning to the question of proportionality, Mr Bramble pointed to the factors making expulsion justified. The first two appellants were overstayers and none of the appellants satisfied the immigration rules. Their positions in the UK were precarious and they had no expectation to be permitted to remain. The issue was whether the presence of the third appellant and the time he has spent in the UK made it unreasonable for him to leave the UK. If it did, then the public interest might be outweighed. Mr Bramble left that for me to determine.
24. Mr Khan relied on the documentary and oral evidence provided by the appellants. Having heard from Mr Bramble, Mr Khan focused his submissions on the question of whether it was reasonable in all the circumstances to expect the third appellant to leave the UK. This had to be considered in terms of the child's wellbeing. The third appellant was born in the UK and had experienced no life other than his life here. He is well integrated into life here, being at school and having developed friends and a social life of his own outside school. He had no connection to Nigeria other than through his parents. The level of disruption to his life would be very significant, and perhaps too significant, to his future wellbeing.
25. Before I remake the decision in this appeal, I remind myself and those reading this decision of the relevant law. I am considering whether the decision of 22 December 2015 is unlawful under s.6 of the Human Rights Act 1998. The approach I adopt is that of a balance sheet, setting out first the factors in favour of the appellants before I set out the public interest considerations (drawing on the provisions of s.117B of the 2002 Act). Once I have set out the competing sides, I will assess what is proportionate in all the circumstances.
26. There is no dispute that the three appellants are part of a family unit, which includes two additional children. The first two appellants are the parents of the third appellant and the other two children. These relationships are undisputed by the respondent and the evidence provided leads me to the conclusion that it is more likely than not that the parents and children enjoy family life together in the UK within the meaning of article 8(1) ECHR. I am aware that this family life has developed over a period of nearly 10 years and would be significantly disrupted were the family required to move to Nigeria.
27. I also take account of the evidence relating to the third appellant. He has developed well in the UK under the guidance and influence of his parents, educators and friends. Although there is no independent evidence as to how moving to Nigeria might affect him and his wellbeing, it is obvious from the evidence that the third appellant has only experienced life in the UK. Moving him will be disruptive and poses a threat to his further wellbeing. The respondent suggests this will be ameliorated by the continued guidance and influence of his parents, but are silent as to the possible impact his removal from the other influences on his life, and from his social network, might affect him.
28. I find that the evidence presented, bearing in mind well-established principles, his best interests are to live with his parents and siblings and to maintain the life he has experienced and established. I remind myself and those reading this decision that although this is a factor I must consider first, the fact that there is tension between immigration control and best interests of a child, it does not mean that the best interests are to be given paramount significance. They are a powerful factor but not a trump card.
29. I add, for clarity, that I give no weight to the claimed medical concerns. There is no medical evidence. It is unclear whether the nosebleeds suffered by the third appellant would be made worse by a move to Nigeria.
30. I move to consider the public interest factors. It is acknowledged that the appellants cannot benefit from the provisions of appendix FM to the immigration rules. In light of Mr Bramble's submissions, it is appropriate to examine the situation relating to the first two appellants separately to the third appellants.
31. The first two appellants claim they would face significant difficulties moving to Nigeria and therefore they benefit from rule 276ADE(1)(vi) of the immigration rules. But they have merely made assertions to that effect and have not provided independent evidence about the likelihood of them encountering economic or other problems in Nigeria. In the absence of reliable independent evidence, I am not prepared to accept their assertions. In making this decision, I have considered the fact the first two appellants are well educated and have maintained family connections in Nigeria. In the absence of reliable evidence to the contrary, these facts would suggest any difficulties faced on return would not be very significant and could be overcome. For these reasons, I do not accept that the first two appellants can benefit from paragraph 276ADE(1)(vi) of the immigration rules.
32. The first two appellants do not challenge the respondent's view they do not meet the provisions of appendix FM. I am unable to see how they could benefit from any of those provisions because either they or their child must be settled in the UK. They do not meet these basic requirements. Because of that, they cannot engage with paragraph EX.1 (see Sabir (Appendix FM - EX.1 not free standing) (Pakistan)  UKUT 63).
33. Because the first and second appellants do not meet the provisions of the immigration rules, and they have not claimed to benefit from any other provision if immigration law or policy, I conclude their presence in the UK is contrary to the maintenance of effective immigration control. This means I find their expulsion to be justified by s.117B(1) of the 2002 Act.
34. The respondent does not seek to justify the expulsion of the first and second appellants in terms of s.117(B)(2) or (3). These factors are neutral because the appellants speak English and have shown their ability to be able to support themselves in the past.
35. The respondent does identify in passing that expelling the first and second appellants is also justified in terms of s.117B(4) and (5) on the grounds they have established their family life in the UK at a time they have been here unlawfully and their status is precarious. In terms of legal technicality, both allegations are made out. The reasons for refusal letter identifies that both appellants were notified they were overstayers on 30 January 2015. The representatives confirmed to me that the appellants last had leave to remain sometime between February and May 2013.
36. But I must take account of the fact that the appellants have not sought to evade immigration control. They were here lawfully from 2008 until 2013. Their family and private lives in the UK were established during that time and have continued thereafter. Although this is not a factor that ameliorates s.117B(4) and (5), it is a factor I must consider when looking at whether expulsion is justified when the public interest factors are weighed against the family and personal circumstances. But in terms of assessing the public interest, the fact s.117B(4) and (5) are engaged adds weight to the public interest in expelling the first and second appellants.
37. The third appellant is a qualifying child having resided in the UK for over seven years continuously and the first and second appellants enjoy genuine and subsisting parental relationships with him. This means that the first and second appellants may benefit from s.117B(6) of the 2002 Act if it is unreasonable to expect the third appellant to leave the UK.
38. The Court of Appeal has provided guidance about how to assess whether it is reasonable to expect a qualifying child to leave the UK. I have already identified the key issues to be considered. I have already found the best interests of the third appellant are to remain in the care of his parents, to continue living in the family unit which includes them and his siblings, and to remain in the UK to enjoy the private life he has established. The issue is whether in all the circumstances the parents' failure to comply with immigration control makes it reasonable to expect the whole family to leave the UK notwithstanding the best interests of the third appellant.
39. The question I must consider is whether the poor immigration history is sufficient to make it reasonable to expect the third appellant to leave the UK. He was born in the UK and has never lived in another country. His age means he cannot be held responsible for overstaying or any breach of the immigration rules.
40. It must be recalled that the family life between the first, second and third appellants was established in the UK between 2008 and 2013, during which period they were lawfully resident. The first and second appellants have sought thereafter to regularise their status in the UK. They have not hidden from the immigration authorities. They have maintained contact. It is also of note that the respondent did not regard the appellants as overstayers until 30 January 2015, which was after they made their second human rights claim. There has been no attempt to remove the appellants despite being overstayers because the respondent first had to consider their human rights claim and thereafter any expulsion was suspended by the appeal procedures.
41. There is an obvious tension between the parties as to whether the failure of the appellants to leave voluntarily should be held against them. This is not a case where there is any significant period where the appellants have not been pursuing applications to regularise their status. In my opinion, this means their immigration histories cannot be regarded as being so poor as to undermine the best interests of the third appellant. It follows that I find it to be unreasonable in all the circumstances to expect the third appellant to leave the UK.
42. I conclude that all three appellants benefit from s.117B(6) of the 2002 Act and that the weight to be given to the provisions of s.117B(1)to (5) is reduced to a minimal level.
43. I turn to my final task, balancing the competing factors. This is a case where I am satisfied the appellants have established private and family life rights in the UK within the meaning of article 8(1) and that their expulsion would interfere with those rights because of the upheaval they would have to endure. The public interest is reduced to a minimal level because it is not reasonable to expect the third appellant to leave the UK because of the life he has established or himself here. The former outweighs the latter, meaning the decision to expel the family is disproportionate in all the circumstances.
44. Because the decision to remove is unlawful under s.6 of the 1998 Act, the appeal is allowed.
Notice of Decision
1. The appeals to the Upper Tribunal are allowed.
2. The decision and reasons statement of FtT Judge M B Hussain contains legal error.
3. It is set aside.
4. The decisions are remade to allow the appeals against the respondent's refusal decision of 22 December 2015.
Signed Date 3 May 2018
Deputy Upper Tribunal Judge