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TG (Considering Policies) Nigeria  UKIAT 00024
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 13 January 2005
Date Determination notified: 28 January 2005
Mr J Perkins (Vice President)
Mr C J Hodgkinson
Mrs A J F Cross De Chavannes
For the appellant: Mr S Sayeed, of Counsel, instructed Fursdon Knapper, Solicitors
For the respondent: Mr G Saunders, Senior Home Office Presenting Office
|Secretary of State for the Home Department
DETERMINATION AND REASONS
- The appellant is a citizen of Nigeria. He was born on 28 June 1967 and so is now 37 years old. He appeals the decision of an Adjudicator, Mr P M S Mitchell, who, in a determination promulgated on 27 July 2004, dismissed his appeal against a decision of the Secretary of State that he was not entitled to refugee status and that removing him was not contrary to his rights under the European Convention on Human Rights.
- The Adjudicator had before him witness statements from the appellant and also from ( ) who is described as his partner and mother of a boy called ( ). These show that it is the appellant's case that he entered the United Kingdom in June 1994 and started his relationship with ( ) in January 1995. Her statement showed that the appellant is not the natural father of her son, ( ), who was aged 14 years in July 2004 but he is the natural father of the couple's other two children, ( ) then aged 4 and ( ) then aged 9 months. The statements show that they live together as a family and enjoy family life. However it is clear from the statement of ( ) that she would not go to Nigeria with the appellant in the event of his return there. She has indefinite leave to remain in the United Kingdom and says "I could not go back with him now as I have too many ties in the United Kingdom". She went on to say that she would be worried for the children in Nigeria.
- There is no evidence here of exceptional, emotional dependency or any unusual or compelling reason why the appellant should not be separated from the children if their mother chose not to accompany him to Nigeria.
- The appellant sought permission to appeal. The determination is criticised because of "a clear paucity of factual findings on the material aspects of the appellant's claim". This was recognised by the Vice President who considered the application for permission to appeal but the application was refused because the Vice President could see no arguable case that further findings of fact would have resulted in the appeal being allowed.
- We wish to make it quite clear that by accepting parts of the appellant's case for the purposes of argument before us we are not making any binding findings of fact.
- That decision was appealed by statutory review and reversed by Elias J who said:
"I agree with the finding that the removal is proportionate and justifiable, save for one concern. The Adjudicator has not made a clearing finding of fact in particular with regard to the relationship between the applicant and ( ). The nature and character of that relationship could affect the proportionality assessment. Particularly if ( ) had been in the United Kingdom for longer than 7 years so that the 7 year concession policy was applicable. I think that the applicant should be entitled at least to argue this point".
- Mr Saunders submitted that, properly understood, Elias J's decision had the effect of limiting the appeal to the points raised by Elias J in his "reasons". We do not agree with that. The learned judge said that the Adjudicator "has not made a clear finding of fact in particular with regard to the relationship between the applicant and ( )." The relationship between the applicant and ( ) is an important example of the general deficiency in the determination. We decided that Mr Sayeed was entitled to argue all of his grounds of appeal.
- Mr Sayeed then rightly criticised the determination for its lack of findings. There is no avoiding the fact that the determination would have been very much better if the Adjudicator had made clear findings about the appellant's claimed relationship with his partner and children in the United Kingdom. Mr Sayeed submitted that the appeal should be remitted before a different Adjudicator to make findings on these important issues.
- However, although the determination is plainly unsatisfactory, we do not accept that there is a material error of law unless there was evidence before the Adjudicator which, if accepted, could have led him properly to the conclusion that removal was contrary to the appellant's rights under Article 8. The Adjudicator, and the Vice President, considered the leading Tribunal decision then known as  UKIAT 00024 M (Croatia)*. Since then we have the benefit of speech of Lord Bingham in the House of Lords in R v SSHD ex parte Razgar  UKHL 27. Lord Bingham said at paragraph 20
"decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority in exceptional cases, identifiable only on a case by case basis."
- Mr Sayeed could not point us to anything about the relationship between the appellant and ( ) which would show that the appellant's removal was one of the exceptional cases contemplated by Lord Bingham other than the length of time that ( ) was said to have lived in the United Kingdom. Further there was no suggestion that anything flowed from the length of time that was not the obvious and natural consequence of its passage. There was no suggestion that any special dependency or other relationship had developed. In short we did not see any arguable case that the delay made this an "exceptional case".
- This is important because the Secretary of State has publicly committed himself to a policy that, in broad terms, he will not normally remove the parents of a child who has been settled in the United Kingdom for more than 7 years. The lurking concern is the effect the Secretary of State's policy on this decision. We understand the argument that says that the Secretary of State cannot be heard to say on the one hand that a person's removal is necessary for the proper purpose of enforcing immigration control whilst saying at the same time that the person could not be removed because it was his policy not to remove the father of children who had been in the United Kingdom for 7 years or more.
- Mr Sayeed referred us to the case of  UKIAT 00008 N (Kenya) where that argument had prevailed. The decision in N (Kenya) is much less helpful to Mr Sayeed than it first appeared. The claimant there clearly made a very good impression. The Tribunal had seen a full copy of the "published concession". The Tribunal found the claimant had "a blameless character" and, most importantly, the Presenting Officer conceded that none of the adverse factors described in the published concession applied in that case. There the Tribunal was faced with a person whose circumstances clearly and unequivocally came within the terms of the published policy. It was established as long ago as 1996 in the case of SSHD v Abdi  Imm AR 148 that a decision of the Secretary of State that was clearly not in accordance with his published policy would not be in accordance with the law. The decision in N (Kenya) was not intended to, and does not, mean that a person whose circumstances on a superficial reading appear to satisfy the terms of the policy will necessarily be able to show that removal is disproportionate. Nor do we accept the Secretary of State's decision to make this policy as any kind of admission, or even evidence, that the removal of a parent of child who has been in the United Kingdom for more than 7 years is normally disproportionate. We go further. Normally, it would not be disproportionate; otherwise there would be no need for a special policy to achieve the end of keeping families together in the United Kingdom.
- The fact the Secretary of State has implemented a policy that attaches weight to 7 years is of little importance in assessing proportionality. It may be relevant in assessing the lawfulness of the decision but this is not a case where the Adjudicator could have found that the appellant clearly satisfied the terms of the policy. We say this with some confidence because it seemed that no one has ever shown the Adjudicator, or the Tribunal, a copy of the policy. However, it is plain from the information that is before us, particularly in the case of N (Kenya), that the policy operates only when certain conditions in addition to the length of stay apply. These include the appellant's immigration history and whether or not he has a criminal record. These points were not taken before the Adjudicator or before us. Indeed there would have been little advantage in raising them here. Often the Secretary of State is uniquely placed to know about these things and the proper course is for the appellant to make an application to the Secretary of State for permission to remain under the policy.
- It follows that although the determination is unsatisfactory because it does not engage with the various claims made by the appellant we do not find any material error here because we are not able to find in the papers the makings of any case that could lead the Adjudicator to find that removal of the appellant would be one of the exceptional circumstances contemplated by Lord Bingham that made removal disproportionate.
- The appellant was given a chance of arguing this point, and the effects of the policy, before us and has not been able to take advantage of it. We were told nothing that was not before the Adjudicator and the material before the Adjudicator is not good enough.
- It will only be in the most unusual circumstances that the Tribunal will be able to decide that removal would be contrary to the policy. This is because in operating the policy the Secretary of State makes clear that he considers a range of factors beyond the child's length of residence in the United Kingdom. Further, these are often factors that may be contentious and about which the Secretary of State is likely to have special knowledge.
- We must make it quite plain that our decision does not mean that the appellant's circumstances do not come within the terms of the policy or that the appellant cannot make an application. Indeed, there seems to be every reason why he should make an application if he could use the policy to his advantage. However, we are quite satisfied that there is no basis here which would lead an Adjudicator to the conclusion that removal is disproportionate and in the circumstances we dismiss this appeal.
- January 2005
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