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APPEAL No.  UKIAT 00014 A (Nigeria)
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 20 January 2004
Date Determination notified: 05 February 2004
Mr J Freeman (chairman)
Mr D J Parkes (acting vice-president)
Mrs W Jordan
Miss J Sigley for the Secretary of State
Miss N Braganza (counsel instructed by D'Angibau Willmot, Bournemouth) for the claimant
DETERMINATION AND REASONS
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
This is a Home Office appeal against the decision of an adjudicator, Mr B Lloyd, sitting at Birmingham on 6 February 2003, allowing an appeal by a citizen of Nigeria against refusal of leave to remain on human rights grounds. The claimant says he arrived in 1980. The Home Office have no trace of him before 1986, when he agrees he last entered this country. We do not regard any difference there may be on that as having any substantial effect on the proper result of the case.
- The next thing that happened was that the claimant was convicted of handling stolen goods, and sentenced to 18 months imprisonment in 1988. In 1989 a deportation order was signed; but, owing to what can only be regarded as gross incompetence on the part of the Home Office, not served before he was released. We do have before us a report by an immigration officer which relates some unsuccessful efforts to trace him after that, followed by further police interest after which again he "proved elusive". No details are given of any further attempts there may have been to trace him.
- However, during that time, the claimant was not lying so very low. He married in 1990, apparently in his own name, a lady called Lola Akinisiku, whose name suggests that she was originally from Nigeria, but is a British citizen; and in 1991 they had a son called Ben. Each of them has two other children in this country; but those do not form an important part of the story, because Lola's sons are grown-up and the claimant's children are teenaged and living with their mothers. Ben however, was found by the adjudicator to have been living with the claimant as his main carer from 1993 when he and Lola split up, until 2001 when the claimant was sent to prison again for 18 months, this time for claiming benefits under a false name.
- That sentence was completed on 18 June 2002 following which the claimant remained in custody under immigration powers: eventually the Home Office served the 1989 deportation order on 28 June 2002. That led to a notice of appeal from the claimant in the form of a one-stop notice dated 13 August 2002. The Home Office responded to that in two refusal letters dated 14 August, which was remarkably quick, and 25 September. However, the claimant was released from immigration detention on 10 December 2002 since when as the adjudicator found he, Lola and Ben have all been living together as a family.
- At some point in the past, and, it seems from what Lola said to the adjudicator, before they got back together, Ben was placed on the at risk register by the local authority. The suggestion before us about the claimant was that this was because of Lola's psychiatric problems and drug dependency. However, we have seen the letter from Ben, before the adjudicator, in which he refers with considerable understanding to some minor episodes of what may be sympathetically described as over-correction by the claimant; and we think it more likely than not that those had something to do with his being placed on the at risk register.
- Whatever the cause for that entry, the adjudicator accepted that it would prevent Ben from being removed from this country without the consent of the local authority. The adjudicator received no help whatsoever from the Home Office by way of a presenting officer; but he made very careful findings of fact at paragraphs 14 to 17 of his decision and ended as follows:
18. I concluded the appellant has established a stable and enduring family life in the United Kingdom which focuses in particular on his young son Ben who is presently aged 11. I believe that the relationship between the appellant and his son is genuine and developing one from which both parties have derived and will derive a large measure of personal support and security. I believe the appellant when he says that he wishes to provide the best opportunity for his young son for the future and that he is prepared to do what he can to achieve that in both financial and emotional terms.
19. I conclude the removal of the appellant to Nigeria will have a devastating interference with the family life that has been established. Although the decision of the respondent taken in this case indeed in accordance with the law. It is necessary for me to decide whether such interference is quite necessary in democratic society". It is not sufficient that it is merely desirable. I am not satisfied that there is a pressing social need that gives rise to the interference in this case or that it is necessary in the interests of protection of public order, health or morals.
- At this point the adjudicator referred in particular to the decision of the Court of Appeal in Amjad Mahmood  INLR 1. He went on:
Having regard to the findings that I have made on the circumstances of the appellant's family life or in particular of his young son Ben and reminding myself also of the balancing exercise that I am required to conduct under Article 8, I come to the conclusion that I must attach more weight to the rights of the appellant to pursue a family life. I have regard to the major upheaval indeed devastation that he would undoubtedly be caused if he were forcibly to be removed to Nigeria and also if his wife and young son were forced as a consequence to leave their home environment to embark on the uneventful task of building a completely new life in Nigeria. The appellant and his wife moreover would be faced with the prospect of uprooting a special needs child to a wholly unknown environment. The "at risk" registration of Ben creates prohibition in itself but further the prospect of removal of the appellant would frustrate the aims and ambitions of the appellant and his wife for their young son.
The adjudicator accordingly allowed the appeal before him on the basis that the appellant's removal would be disproportionate in terms of Article 8(2) of the Human Rights Convention.
- The Home Office appealed on various grounds: first, that the adjudicator had not properly applied the proportionality test. As the passage we have quoted makes reasonably clear the adjudicator did have in mind that this was a balancing exercise, and the aims laid down by article 8(2). Subject to one other point, to which we shall come later, we do not see anything in that ground. The Home Office went on to challenge the adjudicator's findings as to Lola's problems, and the facilities for her and for Ben in Nigeria, as being speculative. There was evidence about Ben's problems before him from two speech and language therapists. There is then a challenge as to whether there was any evidential basis for the "at risk" register point.
- Ms Sigley realistically did not suggest before us that the claimant after all this time should now be required to return to Nigeria to apply for a family reunion visa from there. She put it as a straight choice between whether he should be allowed to stay in this country; or whether Lola and Ben could reasonably be expected to join him on return to Nigeria. There is a further point which she raised before us which is the one we referred to earlier as to whether the adjudicator should have upheld the Home Office decision in terms of the judgment of the Court of Appeal in Blessing Edore  EWCA Civ 716 as within the possible range of decisions open to them. She made clear of course that the adjudicator could not have been expected to take account of that case (at least of the Court of Appeal decision) because it had not come out by the time he gave his; but we of course must do so.
- It is quite clear that this appellant got remarkably little help from his solicitors. There is, as we have mentioned, evidence from two speech and language therapists. On our assessment of what they had to say about Ben, his problems, while they need attention, are not too serious. He does not seem to be in a special school, as the adjudicator was persuaded to accept, because one at least of the reports, dated 18 July 2002 by Miss Annabel Mathias, is headed as being conducted by the "mainstream schools team" of the local NHS Trust. There is no evidence of any independent kind as to Lola's problems; and so there is a gap in the adjudicator's decision, for which he was not entirely responsible.
- However, adjudicators are not prohibited from using their knowledge of the world in general; and we do not think the adjudicator can be blamed for inferring, in general terms, that there would be less effective facilities for either Ben or Lola to the extent they made need them in Nigeria. Bearing in mind that the question before him was, in terms of the decision of the Court of Appeal in Mahmood at paragraph 55(4), whether two British citizens could be reasonably be expected touproot themselves to a foreign country, we take the view that he was entitled to take a broad approach to this question.
- Turning to the "at risk" register point, there was no independent evidence from an official source, such as we might reasonably have expected from any solicitors doing their job properly, before the adjudicator or us about this. However, the Home Office too, whose appeal this is, could easily have made enquiries from the local authority themselves (full details have been given of Ben's school in the speech and language therapists' reports) as to whether he is on the "at risk" register; and whether the effect of that would be to prevent his removal from the jurisdiction.
- We think the adjudicator was entitled to find as he did on this point too. While the prohibition on removal in the at risk register might not countervail the needs of immigration control in dealing with a child who is not a British citizen, Ben is; and that was clearly a significant consideration in dealing with the question of whether his mother could reasonably be expected to take him to Nigeria to join the claimant.
- Turning to the effect of Edore, the Home Office refusal letters are very short of detail. It is true that they were provided with very little, once again, by the claimant's solicitors; but they could have made further enquiries themselves; if necessary, setting a strict time limit for a reply. What the Home Office conspicuously failed to do was to consider, in either of those decision letters, first the effect of the length of time the claimant had spent in this country; and second the age of Ben, who had always lived here.
- We confirmed with Ms Sigley that what used to be known as the 14-year policy is still in effect. That means that an overstayer who has been in this country for 14 years, lawfully or not, will not normally be deported. The position in this case of course is slightly different, because the decision which originally led to this appeal was the service of a 1989 deportation order. Nevertheless, by the time the Home Office actually did anything effective about that, this appellant on any view of the situation had been in this country for about 16 years; and in our view the Home Office should have at least given some thought to the question of how far his removal at this stage was in accordance with their general policy.
- Then there is Ben's age. In the case of children who are not citizens of this country, there is what is known as a 7-year policy: in other words, children who have spent those formative years in this country are not normally to be required to leave, nor are orders to be made against their parents which would have that effect. Here again, the policy was not directly in point; but we have no doubt that any reasonable decision-maker at the Home Office would have borne it in mind, and shown that they had done so.
- In our view, all these factors taken together would have led any right-thinking person to regard it as far too late, whether in 2002, or at the date of the adjudicator's decision, or now, to enforce the 1989 deportation order. This adjudicator came to a very thorough and comprehensive decision. We have no doubt that he was entitled to decide the case as he did; so the Home Office appeal is dismissed.
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