SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lady Smith	[2013] CSIH 40 XA155/12 OPINION OF THE COURT delivered by LADY SMITH in the Application by A A Applicant; For leave to appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) _______________

Applicant: Winter; Drummond Miller

Respondent: Miss Smith; Solicitor to the Office of the Advocate General

5 April 2013

[1] This is the application of AA for leave to appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber).

[2] The applicant is a Nigerian national, born on 14 February 1976. He and his wife arrived in the United Kingdom on 8 May 2005 on a visitors' visa which was valid to 11 October 2005. Their daughter was born in the UK on 5 January 2006. They obtained a further visitors' visa on 6 October 2006 for the period to 6 October 2008. The applicant's position is that he and his wife have been in the UK continually since May 2005. That would seem to indicate that the second visas were irregularly obtained, as is mentioned by the Upper Tribunal at paragraph 37 of its written reasons.

[3] The applicant, his wife and his daughter continued living in the UK after the expiry of the second visa, were encountered at their home address on 27 July 2010, were noted to be overstayers and were, accordingly, served with removal notification thereafter. The applicant submitted an application for leave to remain in the UK on 27 September 2010. It was refused on 11 November 2010. On 19 January 2012, the UK Borders Agency (UKBA) having considered an appeal based on the applicant's article 8 rights, refused it.

[4] The appeal to the UKBA and, thereafter to the First Tier Tribunal focused on the issue of whether or not removal of the applicant and his family would be in the best interests of his daughter.

[5] At a hearing on appeal to the First Tier Tribunal, it was contended that since the applicant's daughter had spent all her life in the UK, had become integrated into the school and life in the UK and knew nothing of life or education in Nigeria, article 8 ECHR would be breached if the family were not allowed to remain. It was submitted that the outlook for the child would be bleak. In support of that submission, reliance was placed on a COIS report about Nigeria. In particular, reference was made to paragraphs 25.01, 25.02, 25.47, 25.48 and 25.49 of its overview section which state that 40% of children miss out on school, that nearly two million children have lost parents to AIDS or AIDS related disease, that its education system is in a state of neglect, that only 57% of women are literate, that an article in 2010 painted a bleak view of what might befall those children whose parents feel they have no choice but to abuse their children's rights, that there is a gender gap in education provision and that primary education is rarely compulsory.

[6] The immigration judge (Quigley), allowed the appeal on human rights grounds under article 8 relying on the abovementioned aspects of the COIS report and on evidence that she appears to have accepted that the family had settled in the community where they now live. The immigration judge concluded that the applicant's daughter's success in her primary education to date could be severely damaged if she were to return to Nigeria. She also had regard to previous policy which was no longer extant at the time of her consideration and was that seven years residence by a child under 18 years could afford a basis of regularising the position of parent and child in the absence of conduct reasons to the contrary. The immigration judge added that removal of the application and his wife and daughter would disproportionately interfere with their right to respect for their private lives.

[7] The immigration judge made no findings at all regarding what would be the child's own personal and family circumstances on returning to Nigeria.

[8] On appeal to the Upper Tier Tribunal judge (Maclemen), it was held that the determination of the First Tier Tribunal was unreasoned in an essential aspect namely that the immigration judge had overlooked the need to assess the prospects of the applicant's child in the light of her own personal and family circumstances. The background evidence showed that some children faced severe difficulties in Nigeria; that was not, however, the case for all children and the determination left the reader wholly in the dark as to why the applicant's daughter would be in the category of those who faced severe difficulties.

[9] The Upper Tribunal determined, accordingly, that the First Tier Tribunal's decision had to be set aside and the appeal redetermined. He was not satisfied that it was well founded. He noted that the child had well educated, well motivated and caring parents (as was plainly borne out by the evidence presented) and he concluded that they would do their best for her in Nigeria as they had done, to date, in the UK. Regarding her own integration into the community, he observed that, at 61/2 years old, she was still of an age to be primarily focused on her parents and whilst moving schools (which, it should be noted, she has already done once in her brief school life, from the independent to the state sector, without apparent difficulty) and countries would be disruptive, that was an incident of life in the case of very many children nowadays. His conclusion regarding the child was, in short, that she could be expected to thrive in Nigeria as, in the care of these parents, she has done in the UK.

[10] Immigration Judge Maclemen then considered general proportionality and observed that the applicant and his wife had a poor immigration history in the sense that they had sought to establish family life and to school their child here in full knowledge that their immigration status was precarious and had no legitimate expectation of being allowed to stay. Also, they were not UK citizens. He accordingly dismissed the applicant's appeal.

[11] The grounds for the present application are detailed in the note of argument as well as in the application itself. They fall into two parts. First, that the Upper Tribunal erred in finding that the First Tier Tribunal had erred in law because (a) there was evidence before the First Tier Tribunal from the applicant and his wife to the effect that the applicant's own education was disrupted in Nigeria and that he would not be able to find work other than low paid unskilled work so they would be in poverty, and (b) the interests of the applicant's child was a primary consideration which fell to be assessed in the light of the general situation in the home country and the length of time the child had been resident in the UK. Secondly, that the Upper Tribunal erred by finding that the child was still of an age to be primarily focused on her parents, that it had not explained weighty reasons as justification for separating the child from her established community, that the Upper Tribunal had failed to bear in mind that the welfare of the child was a primary consideration, that her educational welfare pointed strongly to it being necessary for her to remain in the UK, that it ought to have had regard to the previous 7 year policy, that it had failed to consider the general situation in the home country and that whilst the child was not a UK citizen that was only one factor.

[12] In the course of submissions, counsel referred to the following authorities: ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166; LD v Secretary of State for the Home Department (Article 8-best interests of child) Zimbabwe [2011] Imm AR 99; Mnudeba (section 55 and paragraph 297 (i)(f)) [2013] UKUT 00088 (IAC); E-A v Secretary of State for the Home Department (article 8-best interests of child) Nigeria [2011] UKUT 315; MK v Secretary of State for the Home Department (best interests of child) India [2011] UKUT 00475; Shizad (sufficiency of reasons: set aside) [2013] UKUT 00085 (IAC); KP (Pakistan) v Secretary of State for the Home Department [2012] CSIH 70; OCO v Secretary of State for the Home Department [2012] CSIH 65.

[13] It was accepted, on behalf of the applicant, that the relevant test for the court when considering the present application was whether it discloses grounds of appeal based upon error of law which have a real prospect of success or whether there are other compelling reasons why leave should be granted: Hoseini v Secretary of State for the Home Department 2005 SLT 550.

[14] No such grounds are disclosed. The Upper Tribunal cannot be criticised for overturning the determination of the First Tier Tribunal for the reason stated namely that the immigration judge's reasons did not, in any way, amount to reasons that related to the particular circumstances of this particular child; there is no indication of the immigration judge having had regard to that important issue . She made no findings in fact about it, for instance; without such findings, she would have had no basis on which to form a view on the matter. Further, insofar as it is suggested that she could have drawn conclusions about what would be the child's circumstances on return to Nigeria based on evidence of the applicant about his educational experience and his own and his wife's predictions about what might be their position on return to Nigeria including what might be their financial position, it is clear - given the applicant's age - that the former must relate to a period in the 1990's, not to current circumstances and the latter seems to be no different from their financial position here, given the extent to which, according to their written statements, they are currently relying on handouts to survive and have run up substantial rent arrears. Further, Mr Winter's submission was predicated, it seems, on an assumption that the applicant and his family would in fact return to Kwara State in Nigeria but that is not actually what their statements say. Nor, importantly was there any evidence before the First Tier Tribunal or the Upper Tribunal to the effect that Kwara State is in that part of Nigeria to which the concerns articulated in the background information report relates. Thus, it cannot be said that Immigration Judge Quigley would have been obliged to conclude on the evidence of the applicant and his wife that the child's personal circumstances on return to Nigeria would be, as it is put in the application, dire.

[15] Turning to the decision of the Upper Tribunal, this is essentially an appeal against its assessment of proportionality. The suggestion that Upper Tribunal Judge Maclemen failed to have regard to the child's welfare being a paramount consideration is not tenable on any reading of his written reasons. Further, the application takes no account of his assessment of the evidence as demonstrating that in the care of the applicant and his wife, this child will flourish whether here or in Nigeria, an assessment which was plainly open to him on the evidence. His consideration thereafter, in balancing the relevant factors, all of which he has taken into account, cannot be faulted.

[16] In all the circumstances, there is no error of law apparent in the Upper Tribunal's reasoning and no arguments that would have a real prospect of success. Mr Winter confirmed that he was not relying on that part of the test in Hoseini which provides for leave to appeal to be granted where there is some other compelling reason for the appeal to be heard. Leave must therefore be refused.