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URL: http://www.bailii.org/uk/cases/UKAITUR/2019/HU126002017.html
Cite as: [2019] UKAITUR HU126002017

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Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: HU/12600/2017

PA/10782/2017

 

 

THE IMMIGRATION ACTS

 

 

Heard at: Field House

Decision & Reasons Promulgated

On: 18 th March 2019

On 14 th June 2019

 

 

 

Before

 

UPPER TRIBUNAL JUDGE BRUCE

 

 

Between

 

Ms TO

Mr AO + 1

(anonymity direction made)

Appellant

And

 

Secretary of State for the Home Department

Respondent

 

 

For the Appellants: Mr Omoniruvbe, Church Street Solicitors

For the Respondent: Mr Melvin, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

1.       The Appellants are partners. The dependent to the Second Appellant's appeal is their daughter, born in 2014. They are all nationals of Nigeria.

2.       They seek leave to remain in the United Kingdom on human rights grounds.

3.       These linked appeals came before this Tribunal on the 9 th January 2019 with permission granted by Upper Tribunal Judge Gill on the 22 nd October 2018. The Appellants sought to appeal the decision of the First-tier Tribunal (Judge Lal) to dismiss their linked human rights and protection claims. In my written decision dated the 17 th January 2019 I found the decision of the First-tier Tribunal to be flawed for error of law and I set it, to a limited extent, aside. In this decision I begin by replicating the background and my decision on 'error of law'. I then give my decision for final disposal of the appeal.

4.       Although this appeal only relates to the two named appellants and their eldest dependent child, the parties before me agreed that it would also impact upon a second child born to the family in December 2018. This child was born after the decisions and appeals were already made and underway, so has not hitherto featured in the case.

 

Anonymity

5.       There is no reason why the identity of either of the adult Appellants should be protected. I have however made an order for anonymity because the case concerns a minor Appellant, and having had regard to the guidance in the Presidential Guidance Note No 1 of 2013: Anonymity Orders, I am concerned that identification of the adults could lead to the identification of that child. I therefore consider it appropriate to make the following order in accordance with Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008:

"Unless and until a tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies to, amongst others, both the Appellants and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

 

Background and Matters in Issue Before the First-tier Tribunal

6.       As the legal framework, and factual matrix, applicable to each Appellant was distinct it is appropriate that I begin by setting those out individually.

The First Appellant

7.       Ms TO claims to have entered the United Kingdom as a visitor in September 2000. It would appear that after the expiry of that visa she remained in the United Kingdom without leave. In March 2014 she gave birth to a little girl. Following the birth she made an application for the child to be recognised as a British citizen, informing the Home Office that the father was a British national [1] . She also made representations to that effect in respect of her own case, and requested leave to remain on Article 8 grounds. Both applications were rejected - inter alia because the father was not named on the child's birth certificate - but Ms TO was granted a right of appeal. On the 30 th April 2014 the First-tier Tribunal (Judge Hodgkinson) allowed her appeal on human rights grounds, finding that Ms TO enjoyed a substantial private and family life in the United Kingdom and that her removal would be a disproportionate interference with those Article 8(1) rights. The Judge found that Ms TO has lived in the United Kingdom since she was only just 15; her parents and three siblings are all British citizens and she has always lived with them. Her dependency on them includes financial and emotional reliance. It would be disproportionate - and contrary to the child's best interests - to interfere with these close family relationships now.

8.       It was when Ms TO applied for this leave to be extended that the Respondent realised that she four criminal convictions in this country, arising from two prosecutions for dishonesty offences. One set post-dated the decision of Judge Hodgkinson. These were:

1 st Sept 2011 1x possessing and controlling identity documents with intent

1x making false representations

Total sentence of 6 months' imprisonment handed down by Woolwich Crown Court

7 th July 2016 1x Perverting the course of justice

1x Dishonestly making false representations

Total sentence of 6 months handed down by Bromley Magistrates on the 9 th August 2016

9.       The Respondent refused to grant further leave to remain and instead made a Deportation Order against Ms TO. The Order is dated the 30 th March 2017, and the Respondent's reasons for making it are set out in his letter dated the 13 th October 2017. The Respondent reviewed the history set out above and concluded: "your deportation is conducive to the public good and in the public interest because you are a persistent offender...therefore, in accordance with paragraph 398 of the Immigration Rules, the public interest requires your deportation unless an exception to deportation applies. The exceptions are set out at paragraphs 399 and 399A of the Immigration Rules". These then were the matters in issue before the First-tier Tribunal in her case.

 

 

The Second Appellant

10.   The Second Appellant Mr AO came to the United Kingdom in October 2007 and it appears that he has been here ever since. It would appear from the Respondent's chronology that during that time Mr AO has sometimes had leave, and sometimes has not. What is clear is that on the 4 th December 2015 he was refused leave to remain on human rights grounds and that his appeal against that decision was subsequently dismissed, in a decision by First-tier Tribunal Judge O'Brien dated April 2017. Mr AO became appeal rights exhausted on the 15 th May 2017. He claimed asylum on the 19 th April 2017. The basis of his claim was that he has a well-founded fear of persecution/serious harm in Nigeria for the following reasons:

i)               In December 2016 a fatwa was proclaimed against him;

ii)             He fears persecution because he is a Muslim who has converted to Christianity;

iii)          His daughter will be subjected to FGM by his family.

11.   The Respondent refused to grant protection and this was the matter under appeal before the First-tier Tribunal.

 

The Decision of the First-tier Tribunal

The First Appellant

12.   The First-tier Tribunal found itself satisfied that Ms TO is a "persistent offender". At paragraph 20 of the decision the Judge states that "this much is clear from the sentencing remarks of the Judge" at Bromley Magistrates, who in 2016 described the 2011 offence as a "key aggravating factor". The Tribunal noted that all of this appellant's offences were for dishonesty.

13.   At paragraph 22 the determination reads:

"The Tribunal has considered the human rights element of the First Appellant's case with regard to the public interest and the Immigration Rules 399-399A. This will be discussed in greater detail below because the human rights matter in so far as it relates to the child is common to both Appellants and whether it would be reasonable for that child to be removed"

14.   Paragraphs 32-40 contain a Razgar framed assessment of proportionality and reference to s.55 of the Borders Citizenship and Immigration Act 2009. The determination concludes that it would be reasonable to expect the child to relocate with her parents.

 

The Second Appellant

15.   In assessing the asylum claim made by Mr AO Judge Lal had regard to the earlier decision by First-tier Tribunal Judge O'Brien, taken in April 2017. Although he appears to have been accepted that Mr AO is now Christian, Judge O'Brien had rejected Mr AO's claim to face religious hostility in Nigeria and found this to have been invented in order to try and avoid removal. This was Judge Lal's starting point. He then assessed the new material. In respect of the fatwa he recorded Mr AO's admission that he had known about the fatwa at the time of the hearing before Judge O'Brien and yet had not mentioned it: as such the Tribunal was not prepared to attach any weight to that document. The FGM claim was similarly unmeritorious. There was no specific threat to the child and "the objective evidence did not disclose such a generalised risk to females in Nigeria. It was accepted by the representatives that if the parents chose not to have their daughter undergo the procedure then the daughter would not undergo the procedure". There was no risk established and the appeal was therefore dismissed on protection grounds.

 

The Appellants' Appeals

The First Appellant

16.   In respect of Ms TO it is argued that the Tribunal misdirected itself and took irrelevant matters into account when it found her to be a 'persistent offender'.

The Second Appellant

17.   Mr AO appeals on the grounds that there was a misapplication of the Devaseelan principles in his case, and that the decision contains an error of fact in that he was not in fact aware of the fatwa when he appeared before Judge O'Brien. It is further submitted that the findings on FGM are unsound because the Tribunal was wrong in law to look for a 'specific threat'.

 

Discussion and Findings on 'Error of Law'

The Second Appellant

18.   The findings of the First-tier Tribunal in respect of Mr AO's protection claim are brief, but are wholly sustainable. Judge Lal was bound to take the findings of Judge O'Brien as his starting point. His finding that the Appellant had known about the fatwa at the time of that appeal came from the Appellant's own evidence: see paragraph 16 of the determination. The conclusions on the risk to the child are similarly free from error. The Appellants in this appeal have previously asserted that the child is the daughter of an unidentified British national (thus rendering Ms TO a vulnerable single mother of an illegitimate child), and that Mr AO had been disowned by his family because of his decision to convert to Christianity. If both of those matters were true, it is very difficult to see how and why his family could pose any risk to the child, who on the earlier evidence is not even a relative of theirs. In any event the Tribunal was quite correct to find a) there has been no specific threat to the child, b) the decision whether to subject her to FGM lies with her parents and c) the evidence is not such to suggest that Yoruba girls will be forcibly subjected to the procedure absent the consent of their parents. Even if a risk arising from Mr AO's family had been made out, it would of course be open to the couple to internally relocate in order to avoid them, and to seek the sufficient protection of the Nigerian state if they considered that necessary. No error of law arises in respect of the protection grounds.

19.   Whether the findings on Article 8, and the best interests of the child, are sustainable largely turns on the outcome of the mother's appeal, for which see below.

The First Appellant

20.   I am satisfied that it was not open to the First-tier Tribunal to conclude that the First Appellant is a 'persistent offender' for the reasons that it gives. The fact that the magistrate in 2016 had regard to the fact that she had already been convicted of a crime in 2011 does not make her conduct "persistent". Nor does the fact that on each occasion she was convicted of a dishonesty offence. Neither was a good reason to find that she met the definition. A 'persistent offender' is someone who keeps on breaking the law: Chege ("is a persistent offender") [2016] UKUT 187 (IAC). Ms TO was convicted on two occasions, five years apart. I am satisfied that the language of "persistence" imports a requirement of repetition greater than that. If parliament had intended the provision to apply to someone who receives more than one conviction it could simply have used the term 'repeat'. See Chege at paragraph 54:

"54. Plainly, a persistent offender is not simply someone who offends more than once. There has to be repeat offending but that repetition, in and of itself, will not be enough to show persistence. There has to be a history of repeated criminal conduct carried out over a sufficiently long period to indicate that the person concerned is someone who keeps on re-offending. However, determining whether the offending is persistent is not just a mathematical exercise. How long a period and how many offences will be enough will depend very much on the facts of the particular case and the nature and circumstances of the offending. The criminal offences need not be the same, or even of the same character as each other. Persistence may be shown by the fact that a person keeps committing the same type of offence, but it may equally be shown by the fact that he has committed a wide variety of different offences over a period of time.

21.   The fact that the Appellant had been convicted once before did not make her conduct 'persistent' within the meaning of the Act.

22.   I am therefore satisfied that the decision of the First-tier Tribunal in respect of the deportation of Ms TO must be set aside. For the sake of completeness I would add that the determination contains a discrete, but ultimately immaterial, error in the Tribunal's self-direction, and ensuing analysis, about whether it would be "reasonable" to expect this child to leave the United Kingdom with her parents. If, as the Tribunal found, the Appellant met the definition of "persistent offender" and her deportation was thereby conductive to the public good, the Tribunal next had to determine whether any of the exceptions in 399 or 399A were met. On the facts they plainly were not, since the child in question was not 'qualifying' , being neither a British citizen nor having lived here for a continuous period of seven years or more. In those circumstances Ms TO was required to show (if the precondition at 398(c) was met) that the case raised "very compelling circumstances over and above those described" in paragraph 399. That is a quite different test to the matter of 'reasonableness' addressed in the decision.

23.   The question arose before me as to whether my finding that the Appellant was not a 'persistent offender' meant that her appeal had to be allowed. On one reading one might think that to be the case, given that the factual basis for the Respondent's decision has been found to be wrong: the Respondent cannot demonstrate that his decision is proportionate, and so the appeal must be allowed. This approach, attractive in its simplicity, would have the additional benefit of protecting claimants from a situation where they had 'won' their fight against deportation on the facts, but find themselves with no protection because their appeals are nevertheless dismissed on human rights grounds.

24.   For the reasons that follow, I am satisfied that the task of the Tribunal cannot end there.

25.   The appeal before me is brought under s82(1)(b) of the Nationality, Immigration and Asylum Act 2002 (as amended):

'82 Right of appeal to the Tribunal

(1) A person ("P") may appeal to the Tribunal where-”

(a) the Secretary of State has decided to refuse a protection claim made by P,

(b) the Secretary of State has decided to refuse a human rights claim made by P, or

(c) the Secretary of State has decided to revoke P's protection status.'

26.   The only ground of appeal open to the Appellant is that set out at s84 (2): "an appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998".

27.   Section 6(1) of the HRA 1998 provides that "it is unlawful for a public authority to act in a way which is incompatible with a Convention right". The 'act' with which I am concerned is not the decision to deport. The 'act', as s82(1)(b) makes clear, is the decision to refuse a human rights claim. It will be recalled that the decision was made in response to an application made by Ms TO for further leave to remain, in which reliance was placed on the findings of First-tier Tribunal Judge Hodgkinson (see §4 above) and her claims as to continued Kugathas dependency on her natal family in this country. Those matters are expressly considered, and relied upon, by the Respondent in his refusal letter. It is therefore apparent that it was not simply the finding that the Appellant was a 'persistent offender' which led to this claim being refused. In those circumstances it is appropriate that the hearing is resumed so that further submissions can be made by the parties on whether Ms TO should be granted leave to remain on human rights grounds. Although her daughter is named as a dependent to Mr AO (presumably because she featured in his protection claim) her Article 8 rights would have to be considered in line with her mother: that this is so is reflected in the decision itself.

28.   This brings me back to the decision in respect of Mr AO. It does not appear to be in dispute that he is in a genuine and subsisting relationship with Ms TO and in those circumstances it seems to me appropriate to set aside the decision of Judge Lal insofar as it related to his human rights. The Article 8 claims of all three members of this family will therefore be considered at the resumed hearing.

 

The Resumed Hearing

29.   Prior to the hearing I asked the Secretary of State to clarify whether he wished to pursue deportation proceedings against Ms TO on the grounds that her removal would be conducive to the public good. Apart from making further submissions which inexplicably revisited the question of whether the Appellant was a 'persistent offender' the Secretary of State made no such submissions. Mr Melvin accepted that the drafter of those submissions may have misunderstood my directions, and invited me to proceed on the basis that this is now simply an appeal against a decision to refuse leave.

30.   The Appellants elected to provide no new written evidence, instead relying on their witness statements and the bundles that were before the First-tier Tribunal. I heard oral evidence from both of them, and from the mother of Ms TO, which I summarise below. I then heard submissions from both parties, who agreed that the applicable legal framework in respect of both adult Appellants was as follows:

i)               I should first consider whether either qualified for leave to remain on 'family life' grounds under Appendix FM of the rules. Since it was agreed that neither could, this would be brief;

ii)             I should then conduct an analysis of whether either Appellant could meet the requirements for leave under the 'private life' provision at paragraph 276ADE(1) of the Rules. This could only sensibly be done on the basis that all four members of the family would be together in Nigeria;

iii)          If neither Appellant qualified under the rules I should then conduct a Razgar enquiry into whether the decision was, despite its failure under the Rules, nevertheless disproportionate. In doing so I would be required to consider whether the best interests of the Appellants' child lay in the United Kingdom or Nigeria, in accordance with s.55 of the Borders Citizenship and Immigration Act 2009. I would also be bound to consider the public interest in their removal, inter alia as expressed in s117B of the Nationality, Immigration and Asylum Act 2002.

The First Appellant's Evidence

31.   Ms TO told me that she had come to live in the United Kingdom in 2000. She was then aged 14 and up until that point she had been living with her maternal grandmother in Nigeria. Her parents had come to the United Kingdom when she was 3, and her brother and 2 sisters were born here. She was ignorant of her own immigration status. She was later told that her mother had been under the impression that she would be given a 'no time limit' stamp on her passport after she arrived. Ms TO believes that her mother tried to obtain the same from the Home Office but was unsuccessful.

32.   Ms TO attended school in East London. She obtained good GCSEs and went on to take 'A'-levels in Maths, English and Film Studies. She went on to attend London Metropolitan University, graduating in Film Studies and Advertising.

33.   After she left university she found it difficult to find work. She did a few placements but after a while her life "went a bit different". It was then that she started using a false document, for which she ended up doing three months in HMP Holloway.

34.   Ms TO told me that she has no living relatives in Nigeria. Her immediate family are all settled in the United Kingdom. Her grandparents lived in Nigeria until they passed away in 2001 (Grandma) and 2017 (Grandfather). Ms TO said that her father continues to visit Nigeria in his capacity as a pastor - he attends religious conventions there. He stays with old friends. Her mother does not visit. Ms TO last visited Nigeria herself in 2015 when she went to attend a wedding and visit her grandfather. She was supposed to go for longer but ended up only staying a week because she "couldn't adjust". She is not used to the life there. Ms TO said that she would be unable to look to the family of AO for support, because they have disowned him. She said that he would be unable to support himself so he would certainly not be able to support her and the children.

35.   She got married to Mr AO in 2015. They have two children. In respect of the elder child she agreed that the birth certificate was originally left blank but it has now been amended to show him as the father. Both children are healthy, as are her and her husband. Ms TO has been referred by her GP for counselling but that hasn't started yet. Ms TO denied ever having claimed that the child's father was a British national (see my footnote 1 above)

36.   In response to Mr Melvin's questions Ms TO explained the circumstances of her second conviction. She had been driving using a licence that was not hers. It was her cousin's licence. She panicked when she was stopped by police and gave them her cousins name. In her written statement Ms TO states that her time in prison has changed her and that she has no intention of committing any other criminal offences. She takes full responsibility for her shortcomings.

The Second Appellant's Evidence

37.   Mr AO states that he has not been to Nigeria since 2007. He is originally from Ogun State but as far as he is aware his parents are now living in Lagos. He has had no contact with them since 2015. The only member of his family with whom he is in regular contact is his brother, who lives in the United States.

38.   Prior to leaving Nigeria Mr AO completed his secondary education and he had started a degree in computer science but he abandoned that to come here. He had leave to enter when he arrived, as a student, but that was curtailed after the college he was studying at had its licence revoked. He worked for a while after that - he was a security guard for a while and then in 2010-11 he ran his own business dealing in second-hand cars.

39.   Mr AO has two criminal convictions. In 2009 he was convicted of driving under the influence of alcohol and banned; in 2011 he was caught driving whilst disqualified.

40.   In respect of his relationship with Ms TO he said that they had met in 2010, and started a relationship in 2013. They had not been living together when their daughter was born but they got back together in 2015. Mr AO said that he would not be able to support his wife and children in Nigeria because they have no accommodation and no jobs there. He denied that he might be able to get a job as a security guard in Nigeria because they do not have security guards there. He then accepted that there might be security guards there but said that the job is very dangerous and that the pay is low. Asked by Mr Melvin why his mother and father-in-law in the United Kingdom could not assist them in resettling in Nigeria Mr AO said that this was not possible because "they do not know the system". Asked why he could not re-establish his car selling business Mr AO said that he had been exporting cars from the United Kingdom to Nigeria and that he would not be able to do that if he was there.

 

The Evidence of Mrs O - Ms TO's mother

41.   Both adult Appellants currently live with Mrs O and her husband. She provides them with emotional, physical and financial support. Although she was adamant that she caters for all of their needs in the United Kingdom, she was equally adamant that she would be unable to do so should they relocate to Nigeria. That is because at the moment the budget is spent on one household, of which they are an integral part. It had five bedrooms and they all eat together. She and her husband both work. Mrs O explained that if they went back to Nigeria the expenses would be substantial. They would have to find new accommodation and running a second household is obviously more expensive. Mrs O said that her daughter helps her and supports her, particularly recently when she has started treatment for blood clots and is under investigation for her heart. Asked to summarise how she would cope if her daughter were to be returned to Nigeria she said "I can say that I would die". She denied that either of her other two adult daughters would be available to give her the support that Ms TO does.

Appendix FM

42.   I accept that there is a family life between the four members of this family. The exact date which the adult Appellants embarked upon their relationship is distinctly murky, no doubt as a result of efforts on their part to conceal the fact that they were together from 2013: both First-tier Tribunal Judge Hodgkinson and the trial judge who sentenced Ms TO were given the impression that she was a lone parent caring on her own for her daughter [2] . In any event there is no dispute today that they are married and that their relationship is genuine and subsisting. Nor is there any dispute that the two children share a family life with each other, and with their parents.

43.   None of the adults or minors in this family have any kind of status in this country, so none are able to act as a 'sponsor' under Appendix FM. It follows that no member of the family is able to meet the requirements for leave set out therein.

Paragraph 276ADE(1)

44.   The test for leave to remain on private life grounds is set out in paragraph 276ADE(1) of the Immigration Rules:

276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK.

45.   The sub-paragraph applicable to children is (iv). It is accepted that neither of the children in this family can meet that test since neither has been in this country for seven years.

46.   In respect of the adults the relevant provision would be (vi) which requires me to determine whether there are "very significant obstacles" to their integration in Nigeria. I consider first the position of Ms TO. In his decision of the 11 th December 2014 First-tier Tribunal Judge Hodgkinson found as fact that Ms TO entered the United Kingdom in September 2000 and that she has lived here continuously since then [at §27]. Up until that point she had lived with her grandparents in Nigeria. She had just celebrated her 15 th birthday when she left. He further found that she no longer knew anyone in that country [at §35]. Although that finding does appear to be contradicted by the evidence before me to the effect that the Appellant's grandfather did not die until two years after that decision, I proceed on the basis that Judge Hodgkinson's findings remain valid today. I accept that Ms TO has lived in this country for approaching 19 years and that she has no living relatives in Nigeria. Judge Hodgkinson further found [at §40] that she currently has no accommodation available in Nigeria. I proceed on the basis that this too remains the case. I am further satisfied that as the mother to two young children, who has not herself worked for a number of years, Ms TO would find it extremely difficult to find or hold down a job if she returned to Nigeria.

47.   There has however been an important change in circumstances since the appeal came before Judge Hodgkinson. That is that Ms TO openly acknowledges that she is living with, and is married to, Mr AO. As such the family would be returned together. I can find no arguable reason why two adults with two children, all of Nigerian nationality and heritage, would not be able to settle there together.

48.   Mr AO submitted that he would be unable to work in Nigeria because there are no jobs there. Specifically there are no security guard jobs in Nigeria. When it was pointed out to him that this was quite patently untrue he changed his evidence to say that he would not want to take such a job, since it would be low paid and dangerous. He gave no explanations as to why a healthy educated man of 36 years old would be unable to work to support his family in that country. Plainly lots of people do work there to support their families. His assertions to the contrary were not supported by any objective country material.

49.   I am also mindful that the Appellants are presently supported by Ms TO's parents, and on the evidence before me, have been for some time. Whilst I accept that the establishment of a household in Nigeria would likely place some strain on the family finances overall I am not prepared to accept that Mr and Mrs O would simply cut them off overnight. That would be completely inconsistent with the support that they have hitherto so generously given. I am satisfied that should this family be returned to Nigeria, Mr and Mrs O would be willing and able to give them some financial support in the short term, at least until they are established.

50.   I am therefore satisfied that whilst the current lack of employment, connections and accommodation amount to obstacles to resettlement in Nigeria, they are not 'very significantly' so. Each of these issues could be resolved with some effort on the part of the adult Appellants and the assistance of Mr and Mrs O (and if necessary their friends and church connections in Nigeria). I am satisfied that each of the Appellants have retained a familiarity with the culture of Nigeria. They have both lived in this country in an extended Nigerian family, and as Mrs O made clear in her evidence, both she and her husband are very involved in the Nigerian church (or at least a church with a large number of Nigerians in the congregation) in this country and have retained their connection to the country of their birth. Mr O has made several visits home in recent years, staying with friends. I n Kamara v SSHD [2016] EWCA Civ 813 Lord Justice Sales considers the meaning of the test in question and says this [at §14]:

"The idea of 'integration' calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life."

51.   I have been told of no obstacles that would prevent this couple operating on a day-to-day basis in Nigeria. They would, I am satisfied, quickly be able to establish private lives there, and enjoy a family life with each other.

52.   I should add for the sake of completeness that before me it was suggested that Mr AO faced an obstacle because he was in danger from his family, variously because they wished to cut his daughter, and/or kill him for converting to Christianity. Since all of these matters were rejected by the First-tier Tribunal in its protection decision, and those findings remain undisturbed, I am not prepared to revive them in the context of the human rights appeal. The simple answer to Mr AO's concerns, even taken at their highest, is that he and his new family could reasonably be expected to live elsewhere in Nigeria away from his parents.

53.   Accordingly, I am not satisfied that the test in 276ADE(1)(vi) is made out in respect of either Appellant.

Article 8

54.   I note that in 2014 Judge Hodgkinson found that Ms TO enjoyed a Kugathas dependency with her natal family. I am not satisfied that this remains the position today. Although she remains financially dependent upon her parents it would seem that this dependency only arises because neither she nor her husband are currently permitted by the Home Office to work. In 2014 the case she put was that she was a young unmarried single mother with no one to turn to except her parents. Today she is 33 years old and a married woman. By any reckoning she has made an independent life for herself, albeit that she and her husband remain under her parents' roof.

55.   If I am wrong about that it matters little since I am wholly satisfied that Article 8 is engaged: I am satisfied that both Appellants have an established private life in the United Kingdom. Ms TO has lived here for 19 years. She has attended school, college and university here and I accept that she has a great many friends and attachments in this country, including her own natal family. Mr AO arrived in 2007 and again I accept that during that period of long residence - some 12 years - he is going to have made a life for himself here which encompasses close friendships, as well as the relationships he enjoys with his in-laws, with whom he lives.

56.   I accept that the removal of the Appellants would interfere with their Article 8 lives in this country and that as a result of this interference the Article is engaged.

57.   I find that the decision to refuse to grant leave to the Appellants arises from the fact that neither qualifies for such leave under the rules and that as such the decision is taken lawfully in pursuit of the legitimate Article 8(2) aim of protecting the economy.

58.   In my assessment of proportionality I have taken the following matters into account on the Appellants' side of the scales:

i)               I accept and find as fact that both of these Appellants have a well-established private life in the United Kingdom. They have both lived here a long time and whether or not such an expectation was justified, they have probably both come to regard this country as their home. In the case of Ms TO I give especial weight to the fact that she was brought here as a child, with the expectation that her parents would take steps to regularise her immigration status. That they did not cannot be a blame laid at her door. I further place particular weight on the fact that Ms TO was, and would return to being, a 'stranded sibling' in that her brother and sisters were born and raised in this country. Both Appellants have many friends and connections here that will take time to replace should they move to Nigeria;

ii)             In respect of their eldest child, now aged 5, I accept that it would be in her best interests - at least in the short term - to remain in this country. She was born here and the only life she has ever known is living in the shared accommodation with her maternal grandparents, aunts and uncle. I accept that she is close to all of these relatives and that she benefits, as any child would, from the input and support of a loving extended family. I accept that she is used to life here and that life in Nigeria will - at least in the short term - be very different and possibly challenging for her. It is generally in the best interests of children to have stability maintained, and I can find no reason to depart from that principle here;

iii)          I accept that the family members here - grandmother, grandfather, aunts, uncle and cousins - all enjoy a close relationship with the Appellants' daughter and that they would be distressed at her departure;

iv)           I accept that those same relatives will likely be upset to see the Appellants go, in particular Mrs O who clearly passionately wishes that her daughter could remain here.

59.   Against the Appellants the following matters must be weighed:

i)               Section 117B(1) of the Nationality, Immigration and Asylum Act 2002 mandates decision makers to take into account that the maintenance of immigration control is in the public interest. In this context 'immigration control' is reflected in the Rules. The Appellants fail to meet the requirements of those Rules and so it is in the public interest that they be refused leave to remain;

ii)             Both Appellants have criminal convictions in this country. Ms TO has two separate convictions for the use of false instruments. Mr AO has two serious driving convictions, one for drink driving, the other for driving without a licence. Although none of these matters, either individually or cumulatively, would be a sufficient basis to pursue deportation proceedings, they are matters that must be weighed in the balance against the Appellants in the context of a decision to refuse leave;

iii)          There are no significant obstacles to life continuing in Nigeria. Each of the Appellants is fit and able to work or otherwise contribute to the household (e.g. by childcare). All of the family are physically well. They would be supported, if necessary, by the parents of Ms TO who on the evidence before me, have been providing the Appellants with everything they need for some time. There is no credible evidence to support the suggestion that they would be destitute or in fact face any significant difficulties at all;

iv)           The family are all Nigerian and can be expected to avail themselves of the opportunity to enjoy the benefits of nationality;

v)             There is no credible evidence to support the claims, made before me, that Mrs O relies on her daughter for particular support, or that she would "die" if her daughter were to be removed. I have no doubt that the two are close, and that as a member of the household Ms TO provides assistance to her mother. It remains the case that Mrs O is not so ill that she is unable to work. Further she has two other adult daughters living in this country who could assist her if necessary;

vi)           ss117B(4)&(5) mandate that I place only "little weight" on the Appellants' private lives, established as they were at a time when the Appellants were here either unlawfully or precariously.

60.   The fact that the Appellants can both speak English is a neutral factor: s117B(2) Nationality, Immigration and Asylum Act 2002. Similarly, the fact that they are financially independent, that is to say not dependent upon the state, is a factor that attracts no positive weight, albeit that it is not a matter that should weigh against them: Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58 [at §52-58]. I make no finding on the best interest of the family's youngest child, simply because no evidence was presented, nor submissions made, on his position. Insofar as my findings in respect of his elder sister can be extrapolated to in time include him, I would accept that. The parties agreed that s117B(6) has no application here since neither child is 'qualifying'. Mr Omoniruvbe submitted that I should place weight on the fact that both Appellants regularly attend church here. In the absence of any evidence that their churchgoing provides some sort of benefit to the United Kingdom I am not prepared to do so. It is at best a composite part of their private lives in this country, to which I have already attached as much weight as I can. There are churches in Nigeria, and I fail to see how removal would result in any interference with their right to worship freely or to hold a particular religious belief.

61.   Having had regard to all of those matters, I find as follows.

62.   The public interest in maintaining immigration control is a matter that automatically assumes significant weight in the balancing exercise. Absent some particularly compelling feature of the evidence that will generally mean that a failure under the Rules means that the decision is a proportionate one. This is a case which potentially had such features. Chief amongst them was my finding that it would be in the best interests of the child(ren) for them to be permitted to remain here, in the country where they have been born and started to grow up. However, as cases such as EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874 illustrate, a positive 'best interests' finding is not in itself sufficient to outweigh the public interest. Whilst I can certainly accept that it is, on balance, in this child's best interest to remain here, the evidence does not indicate that this is so powerfully the case that leave should be granted: she would not be returning to deprivation, nor war nor any particularly adverse circumstances. She would be able to attend school, and her parents would be able to provide for her. In time she would make new friends. The decision to refuse her parents (and by extension her) leave is only contrary to her best interests to the extent that it will disrupt her stability and her ability to see her family members on a regular basis. As to the issue of ongoing contact I am not satisfied that there are any obstacles to her grandparents, aunts or uncles visiting her in Nigeria. Whilst such disruption is significant, it is not to her detriment to the extent that the decision to refuse leave to her parents could be said to be disproportionate: see for instance KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53.

63.   Another potentially compelling feature of the evidence is the fact that Ms TO has been in this country since she was a child, and that she has been here a very long time indeed. I know that she has not yet reached the '20-year mark' but I cannot think that it would be an impermissible adoption of the 'near-miss' principle to take that long residence into account. It is obviously a relevant factor, as is the fact that the period of residence started when she was a minor. I am however mindful that during that period of long residence the Appellant has twice been convicted of dishonesty offences. Had the only criminality weighing against her been the 2011 convictions (when in essence she used false identity papers to try and obtain work) it is doubtful that it is a matter that could have attracted much more weight in the balancing exercise, given the view expressed by the Court of Appeal in ZH (Bangladesh ) v Secretary of State for the Home Department [2009] EWCA Civ 8 that illegal working is "part and parcel of illegal residence". I am however minded to attach significant additional weight to the 2016 convictions for two reasons. First, because they post-dated the decision of Judge Hodgkinson and so demonstrated a distinct lack of respect for immigration control: at that stage Ms TO was well aware that she was being permitted to remain in the United Kingdom on a discretionary basis but continued to offend regardless. Second because the circumstances of the offence had nothing to do with any difficult circumstances that she might have found herself in. She had been given leave at that point. She had no reason to be in possession of her cousin's documents other than the fact that she wanted to drive, knowing full well that she was not entitled to do so. This significantly diminishes the already 'little' weight that I can attach to the private life.

64.   I have also taken into account the no doubt deeply felt expressions of love expressed towards the Appellants by Mrs O and other members of the family who took the trouble to write - although I have read those letters I have not set out their evidence here because I accept that they would like the couple to be able to stay, and that they value them as members of the family. I accept that it will in particular be difficult for Mrs TO's siblings if she is removed, particularly as they may feel the (unjustified) feelings of guilt often associated with 'stranded siblings'. This separation will be emotionally difficult.

65.   It will not, however, be unjustifiably harsh. Whilst this young family would like very much to stay in the United Kingdom, the reality is that a good life in Nigeria for this young family is perfectly possible. I have been shown no credible evidence to the contrary and in those circumstances am compelled, inter alia by operation of s117B Nationality, Immigration and Asylum Act 2002, to dismiss these linked appeals.

 

Decisions

66.   The decision of the First-tier Tribunal in respect of the First Appellant's human rights appeal is set aside. I remake the decision in respect of the First Appellant's human rights appeal as follows:

'The appeal is dismissed on human rights grounds'

67.   The decision of the First-tier Tribunal in respect of the Second Appellant's protection claim is upheld. His appeal is dismissed on protection grounds.

68.   The decision of the First-tier Tribunal in respect of the Second Appellant's human rights claim is set aside. I remake the decision in respect of the Second Appellant's human rights appeal as follows:

'The appeal is dismissed on human rights grounds'

69.   There is an order for anonymity.

 

 

Upper Tribunal Judge Bruce

17 th May 2019



[1] This information, included in my 'error of law' decision of the 17 th January 2019 and so replicated here, was provided by the Home Office Presenting Officer at hearing (not Mr Melvin). At the resumed hearing Ms TO denied that this was the case.

[2] For a detailed analysis of the discrepant evidence on this point see the 'Adjournment Decision and Directions' of First-tier Tribunal Judge I.A Lewis dated 22 nd November 2017 at paragraphs 7-9.

 


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