E A and Others (Anonymity Direction Made) v Home Office
- The first appellant is a citizen of Nigeria who entered the UK on 15 September 2007 with leave to enter as a student. The second appellant, his wife, entered the UK on 24 August 2011 with their two children. The oldest child was three years old and the youngest was two years old on arrival in the UK.
- On 22 February 2018 the appellants applied for leave to remain on human rights grounds. At the date of the application both children had lived in the UK for a continuous period of six years and six months. The respondent refused the application in a decision dated 06 July 2018 on the ground that the appellants did not satisfy the family and private life requirements contained in the immigration rules and there were no other exceptional circumstances to justify a grant of leave to remain on human rights grounds.
- First-tier Tribunal Judge N.M.K. Lawrence (“the judge”) dismissed the appeal in a decision promulgated on 03 April 2019. At the date of the hearing on 15 March 2019 the oldest child was 11 years old and the youngest child was 10 years old. By that time the children had been resident in the UK for a continuous period of around seven years and seven months. The judge concluded that none of the appellants met the private or family life requirements of the immigration rules. In assessing whether the first and second appellants met the requirements of section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (“the NIAA 2002”) the judge accepted that both children were ‘qualifying children’ because they had been continuously resident for a period of at least seven years. There was no dispute that the first and second appellants had a genuine and subsisting parental relationship with the children. However, the judge concluded that it would be reasonable to expect the children to leave the UK with their parents.
- The appellants appealed the First-tier Tribunal decision on the following grounds:
(i) Failure to make clear findings relating to best interests of the children
Despite citing numerous cases on the issue, the judge failed to make any clear findings as to where the best interests of the two children lay. Having failed to make any clear findings relating to the best interests of the children the judge lacked a proper starting point for consideration of the separate question of whether it was reasonable to expect the children to leave the UK for the purpose of section 117B(6) NIAA 2002.
(ii) Confused and contradictory findings relating to the ‘reasonableness’ test
The judge made confused and contradictory findings before concluding that it would be reasonable to expect the children to leave the UK. At [24] the judge said: “On the evidence before me, on balance, I do not find it is not unreasonable to expect the third and fourth appellant from leaving the UK with their parents and returning to Nigeria. (sic)” The finding itself is confused and the double negatives had the opposite effect to the one apparently intended by the judge.
(iii) Failure to give appropriate weight to the children’s length of residence
The judge made further confused and contradictory findings in relation to the test set out in MA (Pakistan) v SSHD [2016] EWCA Civ 705. At [13] he correctly identified the finding of the Court of Appeal that ‘significant weight’ must be accorded to the fact that a child had been continuously resident for a period of seven years. When he came to make his findings, the judge confused the test in the following way at [24]: “On the evidence I find that the third and fourth appellants have put down some roots. However, I do not find that there are ‘strong reasons’ (MA (Pakistan)), at this stage in their lives, it would be detrimental to their development to leave and to return to Nigeria. (sic)” This finding appeared to require the appellants to show ‘strong reasons’ why it would be detrimental for them to return to Nigeria and failed to give correct weight to the children’s length of residence.
(iv) Error of law in requiring some form of detriment or welfare concern before it would be unreasonable to expect the children to leave the UK
The third and fourth points dovetail with one another. It is argued that the judge erred at [10], [16] and [22] in requiring detriment or welfare concerns to be shown in relation to the ‘reasonableness’ test. Although the welfare of the children might be relevant to the assessment of whether it is reasonable to expect a child to leave the UK, the assessment under Article 8 is an evaluative assessment and not solely a welfare assessment. Whether it is reasonable to expect the child to leave the UK is a holistic assessment taking into account all relevant issues including the ties that the children were likely to have developed in the UK. There is no strict requirement for the appellants to show safeguarding
Decision
- We have found that it is in the best interests of the children to remain in the UK, the country where they have lived most of their lives and where they have established strong ties over a period of eight years. It is not in their best interests to be returned to Nigeria where the evidence shows that their life chances would be reduced, they would be exposed to an increased risk of discrimination and possibly an increased risk of violence. For these reasons we conclude that it would not be reasonable to expect children who have been resident in the UK for eight years during an important developmental period of their life to leave the UK. Their parents meet the requirements of section 117B(6) NIAA 2002 which states that the public interest does not require their removal in such circumstances.
- Even if a holistic assessment is conducted under Article 8, where the best interests of the children are weighed against the cumulative effect of public interest considerations, the outcome would be the same. The best interests of the children are a primary consideration albeit not the only consideration. The respondent previously recognised that strong reasons would be needed to outweigh the interests of children who have been resident in the UK for more than seven years. In this case the parents entered the UK legally and had leave to remain until 2013. Further applications for leave to remain on human rights grounds were made promptly but were refused. The appellants did not leave the UK following those negative decisions, but neither is there any evidence to show that the respondent took any action to remove them. Apart from the fact that they remained without leave there is no evidence of abuses of the immigration system at the more serious end of the scale e.g. deception, fraud or absconding. There is no evidence of criminal convictions or other matters that might give additional weight to the public interest in maintaining an effective system of immigration control.
- To the contrary, the first appellant says that he was not allowed to work so he has spent his time volunteering for several charities. He says that he worked for Peace Parters Charity as a Project Manager, at the 999 club in Lewisham as an Employability Team Member and as a volunteer in the Family Support Team at an organisation called Pecan. Both parents speak English and have qualifications that would assist them to find work. If permitted to work, they are unlikely to be a burden on taxpayers and are better able to integrate into society. Even if we were to conduct a full assessment under Article 8 the public policy considerations are not sufficiently strong to outweigh the interests of children who have been resident in the UK for a period of eight years. For these reasons we also conclude that any removal in consequence of the decision would be disproportionate under Article 8 of the European Convention.
- We conclude that removal in consequence of the decision is unlawful under section 6 of the Human Rights Act 1998.
The First-tier Tribunal decision involved the making of an error on a point of law
The decision is remade and the appeal is ALLOWED on human rights grounds
Heard at Field House: https://is.gd/qjUusk
