United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

IAC-AH-SC-V1

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/15288/2014

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Determination Promulgated
On 20th January 2015	On 13th February 2015

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

 

 

Between

 

mr Adebola Nathaniel Onasile

(Anonymity Direction not made)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation:

For the Appellants: Mr R. Layne of Counsel

For the Respondent: Mr I. Jarvis, Home Office Presenting Officer

 

 

DECISION AND REASONS

The Appellants

1. The Appellant is a citizen of Nigeria born on 28^th July 1967. His wife (“Mrs Onasile”) was born on 9^th September 1980 and the couple have three children Grace born 24^th October 2006 Michael born 29^th April 2004 and Benedict born 15^th April 2010. All five members of the family appealed against decisions of the Respondent dated 10^th March 2014 to refuse to grant them leave outside the Immigration Rules and to remove them. The Appellant’s appeal was allowed by Judge of the First-tier Tribunal Hussain sitting at Richmond on 23^rd July 2014 who also found that the other family members had no valid appeal. The Respondent appeals with leave against the decision to allow the Appellant’s appeal. For the reasons which I have set out below (see paragraphs 24 to 29) I have set aside the decision of the First-tier Tribunal as it involved the making of an error of law and I have remade the decision in this case. I therefore will refer to the parties as they were referred to at first instance.

2. The Appellant was issued with a multivisit visa on 23^rd December 2004 valid until 23^rd December 2006. He entered the United Kingdom on 14^th January 2005. On 13^th July 2005 Mrs Onasile was issued with a multivisit visa valid until 13^th January 2006. On 24^th August 2005 she and Michael entered the United Kingdom. At some point the Appellant left the United Kingdom but returned on 18^th August 2006. On 24^th October 2006 the Appellant’s daughter Grace was born. The Appellant appears to have made two further visits from the United Kingdom in 2006 finally leaving Nigeria on 10^th December 2006. On 15^th April 2010 Benedict was born.

3. On 4^th April 2012 the Appellants’ former representative submitted an application for leave to remain in the United Kingdom on the basis of family life. This application was refused by the Respondent on 6^th June 2013 initially with no right of appeal. That was reconsidered by the Respondent and on 10^th March 2014 the Respondent issued the decisions, the appeals against which have given rise to the present proceedings.

4. The appeals of Mrs Onasile and the children came on the papers before First-tier Tribunal Judge Birrell on 9^th April 2014 to ascertain whether they had a right of appeal against the decisions of the Respondent. Judge Birrell held that there was no such right of appeal in-country unless the Appellants had made an asylum or human rights claim before receiving the decision appealed against. Although all the Appellants raised human rights issues in their Grounds of Appeal against the Respondent’s decisions there was nothing before Judge Birrell to show that a human rights issue had been raised prior to the Respondent’s decisions. The Judge held that Mrs Onasile and the children did not have an in-country right of appeal.

5. This decision was discussed before Judge Hussain who noted that no further representations had been made to the Tribunal following the issue of Judge Birrell’s decision. Judge Hussain held at paragraph 6 of his determination that:

“It is not open to me to reopen the question of whether the Appellant’s family members have a valid appeal before this Tribunal that issue having already been decided by Judge Birrell if it is now contended that that decision is wrong then the remedy lies elsewhere”.

6. Judge Hussain thereafter went on to deal with the claim on the basis that the Appellant was the sole Appellant in the case although he did take into account the Article 8 rights of the other family members. When he came to issue his determination dated 3^rd October 2014 he only referred to the Appellant in the heading to his determination on the basis that he did not have valid appeals before him for the other family members. There was no cross appeal against Judge Hussain’s confirmation of Judge Birrell’s decision and I too only refer to Mr Onasile as the Appellant. However as the issue was also raised before me I do explain my decision below (see paragraphs 20 to 23).

The Appellant’s Claim

7. Judge Hussain summarised the Appellants’ claim at paragraph 7 of his determination as follows:

“The basis of the Appellants’ claim for leave to remain as originally put in the letter dated 21^st March 2012 from Right Way Solicitors appears in substance to be that the Appellant enjoys family life with his wife and children and it would be disproportionate to interfere with that by their removal from this country. It was also asserted that the Appellant has lived in the United Kingdom for over ten years, he had no criminal record, he is a Christian, has formed relationships with others in his church and has other ties in the community.”

The Refusal

8. The Respondent refused the application noting that the Appellant, his wife and children were not United Kingdom nationals nor settled here. Returning them together to Nigeria would not be a breach of their family life. The Respondent considered her duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children. Grace suffered from sickle cell anaemia and had been receiving treatment under the NHS to which she was not entitled. In any event treatment for that condition was available in Nigeria according to the Country of Origin Information Report. She would be able to access that healthcare on return to Nigeria and the Appellant’s children would have access to education there.

9. Since Michael, Grace and Benedict were under 18 their position fell to be considered under paragraph 276ADE(iv) of the Immigration Rules. This sets out the requirements to be met by a person seeking to remain on the grounds of private life, specifically in the case of a child that they have lived here for at least seven years and it would not be reasonable to expect the child to leave the United Kingdom. Benedict was born on 15^th April 2010 and had thus not lived continuously in the United Kingdom for at least seven years. Michael was born in Nigeria but entered the United Kingdom with his mother on 24^th August 2005 (and thus had lived in this country for more than seven years) and Grace was born in the United Kingdom on 24^th October 2006 (and thus had also spent more than seven years in this country by the date of decision).

10. However no evidence had been submitted to show that it would be unreasonable to expect the children to return to Nigeria with their family and therefore they failed to meet paragraph 276ADE(iv). The Appellant and his family may have formed a private life but the overwhelming majority of this was established at a time when they had no leave to remain and were aware they could be removed at any time. Grace’s medical condition did not reach the high threshold for a finding that Article 3 was engaged following the case of N v SSHD [2005] UKHL 31.

The Hearing at First Instance

11. The Judge heard evidence from the Appellant and his wife who described their family life. Michael would miss his friends he had met if returned to Nigeria. Grace had health issues. The public education system in Nigeria was bad, 30% of the school stayed closed. The healthcare system was also bad. When Grace was born the Appellant was told by the doctors caring for her that he should ensure that Grace had treatment in an advanced country. The Appellant himself did not work, the church provided his rent and he was helped by friends and family. Even if he put the children into a private school in Nigeria they would have to come back to the community. The Appellant’s father, mother and two siblings were still in Nigeria and the Appellant’s wife had her father and siblings. The family were still in contact with his wife’s parents. Mrs Onasile said that Grace had been admitted again to hospital as recently as April 2014. In the summer she had to be taken to hospital more frequently because she was allergic to the heat. Her case was reviewed every six months by the doctors. The school which Grace attended had on several occasions called Mrs Onasile to pick Grace up. A Nigerian school would not do that for the family. Grace was an exceptionally talented reader and was two years ahead of her age.

12. The Respondent cited the case of Azimi-Moayed [2013] UKUT before the Judge in particular subparagraph (iv) of the headnote which stated: “iv) Apart from the terms of published policies and rules, the Tribunal notes that seven years from age four is likely to be more significant to a child than the first seven years of his life. Very young children are focussed on their parents rather than their peers and are adaptable”. It was the Judge’s view (see paragraph 33 of his determination) that the Appellant’s son Michael had the strongest case under paragraph 276ADE(iv). He had continuously lived in the United Kingdom since August 2005 and had made no return trips to Nigeria. The Judge stated at paragraph 38: “His ties to that country therefore are merely cultural and ancestral”. Michael appeared to be doing well academically and played an important role in the life of his church which he very much enjoyed. He had taken a lead role in the drama group of his church. It was unreasonable to expect Michael to leave the United Kingdom and go and live in Nigeria a country with which he had limited ties.

13. Removing Michael would interfere with the Appellant’s family life with him. At paragraph 42 the Judge carried out the balancing exercise and placed weight on the fact that family life with Michael had not been formed whilst he was illegally here or with precarious immigration status because the family life had existed since Michael’s birth in Nigeria. The legitimate aim of immigration control did not require Michael’s expulsion from the United Kingdom and consequently the appeal was allowed under Article 8.

 

The Onward Appeal

14. The Respondent appealed against that decision arguing that the Tribunal had erred in its approach to Article 8. No consideration had been given to the provisions of Sections 117A to B of the Nationality, Immigration and Asylum Act 2002. Further the Article 8 assessment could, pursuant to the case of Gulshan [2013] UKUT 640, only be carried out where there were compelling circumstances not recognised by the Immigration Rules. In this case the Tribunal had failed to identify why the Appellant’s circumstances were so compelling that they amounted to exceptional circumstances outside the Immigration Rules. The Tribunal had not followed this approach and thereby had erred.

15. The Tribunal had also erred in their assessment of whether it was reasonable to expect Michael to leave the United Kingdom. Whilst he had been here since August 2005 no consideration had been paid to the fact that he would be returning with his family. He would have knowledge of the culture and customs of Nigeria as he would have been raised in a Nigerian household. Whilst he may not have returned to Nigeria since 2005 English was spoken in Nigeria and there would be no language barrier against his reintegration. He had yet to begin his secondary education. Should there be any problems the family would have the support of the extended family in Nigeria. They could continue their activities with another church in Nigeria.

16. The Respondent cited the case of EV Philippines [2014] EWCA Civ 874, a case where none of the family were British citizens and none had the right to remain in this country. It was held that if the parents were removed it was entirely reasonable to expect the children to go with them. The desirability of being educated at public expense in the United Kingdom could not outweigh the benefit to the children of remaining with their parents, the court adding “just as we cannot provide medical treatment for the world so we cannot educated the world”.

17. The Tribunal had failed to consider that the education of the Appellant’s children would be a burden on public resources and little weight should be given to any private life established at a time when the Appellants were here unlawfully. The support he received from his church was precarious and might not continue. The Appellant and his family had already been enjoying public services they were not entitled to and had thus been a burden on taxpayers and it would be in the public interest to remove them.

18. The application for permission to appeal came on the papers before First-tier Tribunal Judge Lever on 17^th November 2014. In granting permission to appeal he wrote:

“The Judge had focused on the position of the [Appellant’s] son Michael and appears to have made his decisions upon the whole family based upon some aspects of Michael’s case in particular education. There is no consideration by the Judge as to what compelling or exceptional circumstances led to a consideration outside of the Rules. There is no reference to the provisions and matters raised under Section 117 of the 2002 Act, pertinent to this case as it relies on private life. Insofar as it relies on education there appears to be little analysis of proportionality or regard to those cases that have looked at the question of education under Article 8. There are a number of arguable errors of law in this case”.

19. The Appellant responded to the decision to grant permission to appeal. The Judge had clearly referred to the Immigration Rules in his determination at paragraphs 45 and 46 and confirmed that the children satisfied the Rules. The Respondent had made no reference to the facts asserted by the Judge but rather selectively picked those which suited the Respondent’s argument. The Respondent failed to follow her own policy regarding the assessment of private life under paragraph 276ADE. She was aware that two of the children of the Respondent Grace and Michael had lived continuously in the United Kingdom in the last ten years since 2005. The determination of Judge Hussain was in accordance with the law and should stand.

The Preliminary Issue

20. Counsel for the Appellants raised a preliminary issue at the outset of the hearing that there appeared to have been two determinations in this case. There was a determination dated 3^rd October 2014 (which was on the court file) but the Appellants’ solicitors had also been sent an earlier determination dated 29^th September 2014 which differed in certain material respects from the determination of the 3^rd October 2014. In the September determination Judge Hussain had named all five Appellants and held that they did have a valid right of appeal whereas in the later October 2014 determination he had only mentioned the Appellant Mr Adebola Onasile and had refused to depart from the decision of Judge Birrell.

21. For the Respondent it was argued that there was no evidence that the September 2014 determination had been served on the Respondent. The Respondent had appealed the determination of October 2014. That determination made clear that the Judge was not prepared to reopen the decision of Judge Birrell and treat the appeals of the other family members as valid. For the Appellant it was argued that the first determination in time should take precedence and the October determination should be disregarded.

22. I considered the issue. It was clear that whether or not there had been an earlier determination the Judge intended the determination of October 2014 to be the final determination. There was no other copy on the file at the date of promulgation although the September determination was subsequently sent in by the Appellant’s solicitors. In my view that had the status of a draft, it had not been served on the Respondent nor had a copy been retained in the court file. That document had no validity. What I was dealing with was an appeal by the Respondent against the decision contained in the October 2014 determination.

23. There had been no appeal against the decision of Judge Birrell nor the affirmation of that decision by Judge Hussain in the October determination and therefore matters stood as they were before Judge Hussain namely that there was no valid appeal before the Tribunal from the other family members. That was not to say that the Article 8 issues which affected all five could not be dealt with. Judge Hussain had dealt with the family life claim of them all and it was difficult to see what if any hardship had been caused to them by Judge Hussain’s decision not to reopen the question decided by Judge Birrell. I indicated as much to the parties that I would proceed therefore to hear the Respondent’s arguments on the error of law stage.

Error of Law Stage

24. For the Respondent it was argued that the Appellant and the other family members were seeking to succeed on the back of the claim in relation to Michael. The Judge’s approach to Article 8 was flawed. It was contrary to the authority of EV Philippines. Seven years after the age of 4 were more substantial than from 0 to 7.

25. Although the Judge heard the appeal on 23^rd July (before the relevant provisions of the 2002 Act came into force on 28^th July 2014) nevertheless he had not promulgated his decision until 3^rd October 2014 (and had evidently had cause to rewrite it). A determination was not finalised until it was served on the parties, in this case served on the Respondent as well as the Appellant. That meant that up until that date the Judge should have taken into consideration the 2002 Act which he did not. The Judge should have asked for further submissions on the new law post 28^th July. Even if the September determination was the correct one that was still after the provisions of Section 117 of the 2002 Act came into force. EV Philippines reminded Tribunals to examine the issue of proportionality carefully not just look at a child’s circumstances. Although the immigration status of the child was not the child’s fault the child nevertheless had no independent claim under private life Rules.

26. Applying Section 117 of the 2002 Act, one had to have regard to the matters in paragraph 117B. The Judge had not gone through the six themes set out there. The Judge had not engaged with 117B(iii). None of the parties were independently economically sustainable. The private lives of all of the family had been established at a time when they were here unlawfully. Looking at Section 117B(vi) Michael was on the facts a qualifying child and it was not in dispute that the Appellant had a genuine and substantial parental role in Michael’s care. However there was a second step whether it was reasonable to expect Michael to leave the United Kingdom. The reasonable test was a proportionality exercise, Section 117B(vi) was not an amnesty and the assessment of reasonableness had to take into account the other subparagraphs of Section 117B. The sub-Section did not say that a qualifying child could not be removed.

27. For the Appellant Counsel argued that the new law had not come into force when the case was before Judge Hussain on 23^rd July. No submissions were made about section 117B and that was why the Judge had not mentioned the 2014 Act. In any event the crux of the case was Michael’s best interests and the unreasonableness of his removal. The Judge had looked at the matter in the round including the length of time Michael had been in the United Kingdom and his schooling. The Judge was entitled to arrive at the finding he did. The Appellant and Mrs Onasile could not qualify under the Immigration Rules and the Judge had gone on to carry out the balancing exercise using Razgar. He found that looking at all the circumstances including the fact that Michael had been here for seven years it would be disproportionate for the Respondent to remove the remaining members of the family. The family were maintained by the church but they were not a burden to the taxpayer. The Judge had come to the right decision as it was not reasonable to expect Michael to travel to Nigeria. Briefly in response the Presenting Officer reiterated that nothing had been said in the determination about EV Philippines.

28. At the end of submissions I gave my oral decision that I found that there was a material error of law in the Judge’s determination such that it fell to be set aside and the decision remade. I indicated that I would give full written reasons in my determination why I found an error of law and I now do so.

29. Although the Judge heard this matter on 23^rd July he did not promulgate his determination until October by which time the Immigration Act 2014 had amended the 2002 Act by the insertion of Section 117A, B, C and D. It was incumbent upon the Judge to consider this matter, there being no transitional provisions and the section applying immediately. In the circumstances the Judge should have either brought the matter back to court or at least invited written submissions from the parties on the issue of whether the new law made any significant difference. At the date of hearing on 23^rd July 2014 the Judge was required to weigh in the balance the fact that on the one hand none of the Appellants had leave and were seeking to remain outside the Rules and on the other hand they would need to show compelling and compassionate circumstances as to why their claims should be admitted outside the Rules. The Judge had focused on the best interests of Michael and had accepted that it was unreasonable to expect Michael to leave the United Kingdom. That was not to carry out the balancing exercise correctly and the determination gave the impression that the Judge regarded Michael as a “trump card”. It was difficult to see how the Judge had arrived at the conclusion that Michael’s interest in continuing his education made it unreasonable to expect him to return with the rest of his family to Nigeria.

The Substantive Hearing before Me

30. Having set aside the decision I heard brief oral testimony from the Appellant who indicated that he had one or two things to add to the evidence he had given at first instance. The Judge had not concentrated only on Michael. The Appellant had three children, Benedict who was aged 8 years and Grace as well as Michael. The case of EV Philippines was not relevant as the children in that case had spent less than four years in the United Kingdom whereas his children had been in the United Kingdom ten years and eight years respectively. The children in EV Philippines were not qualifying children under the 2014 Act.

Closing Submissions

31. For the Respondent the Tribunal was urged to look at the case in a broader context. The question was whether it would be unreasonable to expect Michael to reintegrate back into life in Nigeria. He was not responsible for the parents’ behaviour but he was not here lawfully. His parents had manipulated the Immigration Rules. Little weight should be given to the private life of any members of the family. There was no evidence to show an adverse effect on Michael. There were no health issues. It was reasonable for Michael to go to Nigeria to restart his life there. Extended members of the family could help them. It was clearly reasonable for Michael to return to Nigeria. For the family to have succeeded under the Rules they would have had to have met the maintenance requirements that is to say shown that the Appellant had £18,600 for himself and his wife had £2,300 for each of the three children. Such monies as the Appellant had came nowhere near those levels. The Appellant had never worked and the family could not maintain themselves. They were living below the subsistence level. In Haleemudeen it was said that there needed to be something compelling outside the Rules.

32. Grace was also a qualifying child. She had been unwell and she was being treated with painkillers but that was not enough to say there were inadequate facilities in Nigeria. The same considerations applied for her as for Michael. The Appellant and his wife sought to benefit from free education for their children when they were not entitled to it.

33. In closing for the Appellant Counsel accepted that the Appellant and Mrs Onasile could not satisfy the Immigration Rules but Michael qualified under paragraph 276ADE as he had been here for seven years. The Rules did not specify what age a child had to be when they completed those seven years. It would vary from child to child. Michael was doing well at school, he was settled there and had social friendships. The United Kingdom was the only country that Michael knew, he had never returned to Nigeria. He had set down roots in the United Kingdom. That he had no status was not his fault. As a minor he could not be held responsible for the sins of his parents. He was an innocent victim.

34. Turning to Grace, she was also a qualifying child born in 2006. She was over 8 now. She suffered from sickle cell anaemia although there was no medical evidence to substantiate that there was oral and written evidence that she needed careful looking after. It was unreasonable and disproportionate to remove the two children Michael and Grace from the United Kingdom. The new Act was now in force. One had to focus on Section 117B(vi). The reasonableness arguments would apply here.

Findings

35. As I have set aside the decision of Judge Hussain I must apply the provisions of the 2002 Act. This is an appeal under Article 8 and I remind myself of the step by step approach required by the case of Razgar [2004] UKHL 27.

36. Undoubtedly there is family life between the Appellant, his wife and their three children. That family life would be interfered with by requiring the Appellants to return to Nigeria. The Appellants cannot bring themselves within the Immigration Rules and they are clearly not economically self-sufficient. The legitimate aim pursued of immigration control is because of the economic wellbeing of the country. The issue is whether the effect on the family’s life by requiring them to return to Nigeria is proportionate to the legitimate aim being pursued. This is the balancing exercise and there are a number of factors which I have to consider in carrying out that exercise.

37. The first matter I have to consider is the best interests of the three children. They are a primary concern of the Tribunal although the best interests are not paramount. I must consider their interests first. Undoubtedly the best interests of the three children are to remain with their parents. The Respondent’s case is that all five family members would be returned together and therefore the best interests of the children would be satisfied. The argument in this case is that there would be an interference with Michael’s education and that he would find it hard to reintegrate into a country which he does not know and has no experience of. In short it would be unreasonable to expect him to travel to Nigeria. A similar argument is made in relation to the child Grace. In the case of Benedict, he is 4 years old and his interests would therefore be very much focused on those of his parents. It is not argued independently in this case that it would be unreasonable to expect him to travel to Nigeria with the family. The issue is whether it is reasonable to expect Michael and Grace to travel with the family all other things being equal.

38. In relation to Michael’s education, I do consider that the decision of EV Philippines is of relevance in this case. Whilst it is correct that Michael and Grace are older than the children in EV Philippines, it is not the case that EV Philippines will only apply where exactly the same facts are repeated in a case. The Court of Appeal in EV Philippines was setting out broad principles to be applied when considering a child’s best interests under Section 55 of the 2009 Act and in the proportionality exercise.

39. Michael has no right to be here and thus has no independent right to an education in this country at taxpayers’ expense. Nevertheless because of the machinations of his parents that is what he has been able to receive. It is quite correct he cannot be blamed for the faults of his parents but as EV Philippines reminds the Tribunal and the parties there is no obligation on the United Kingdom to educate the world. That Michael is doing well at school is pleasing for him and his parents but it is not a matter of great significance when weighing up the proportionality of interference with family life.

40. The second argument made in Michael’s favour is the sheer length of time he has been here. I note that Judge Hussain found that Michael did have cultural ties to Nigeria as well as ancestral ties. English is widely spoken in Nigeria and Michael is still at an age when he could adapt to the educational system there. He would have the support not only of his own family but of his family’s extended family members. I see no reason why he would not be able to reintegrate into the community. Grace has certain medical problems but there is no evidence to suggest that they cannot be dealt with in Nigeria. The family may be apprehensive about the level of care in Nigeria, particularly as they were advised when Grace was born to take her to an advanced country for treatment. This they did notwithstanding that they have overstayed unlawfully. Grace too has had the benefit of medical treatment at public expense to which she was not entitled. I see no reason why she could not receive adequate medical treatment even if it was not at the same standard as this country. It may well be that a school in Nigeria might not be prepared to go as far as a school in the United Kingdom in maintaining contact with Grace’s parents but I do not consider that such matters are of sufficient weight as to make it disproportionate to remove Grace with the rest of the family.

41. The Appellant and Mrs Onasile also claim to remain in the United Kingdom under Article 8. The principal argument is that it is unreasonable to expect Michael to leave the United Kingdom and therefore Michael has to be looked after by someone that is to say his parents who should therefore remain. The Appellant has no means of support, his support from the church is precarious and could as the Respondent points out stop at any time. Although he claims not to be a burden on the taxpayer (aside from the burdens incurred by his children) that position could change at any time. I am far from satisfied that the Appellant can achieve any form of economic viability in the future.

42. The final aspect relied upon by the Appellants is the effect of Section 117B (vi) of the 2002 Act. This provides that in a case where a person is not liable to deportation (as is the case here) the public interest does not require that person’s removal where they have a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the United Kingdom. In this case both Michael and Grace are qualifying children because both have been in this country for more than seven years. The Act defines qualifying children at Section 117D but does not specify at what age the seven years should be lived.

43. It is not in dispute that the Appellant and his wife have a genuine and subsisting parental relationship with all three of their children but for the purposes of the section particularly so with Michael and Grace. The issue is whether it would be reasonable to expect Michael and Grace to leave the United Kingdom. That they are qualifying children does not of itself answer the question. The sub-Section envisages a proportionality exercise in order to be compliant with Article 8. The Tribunal has to look at the reasonableness of expecting the children to leave the United Kingdom and that means looking at all of the matters in the round but taking the children’s best interests as a primary consideration.

44. It follows from what I have said above that I consider it is reasonable to expect Michael and Grace to leave with their parents and Benedict and travel to Nigeria. Michael can receive an education in Nigeria, Grace can receive medical care, the Appellant and/or Mrs Onasile could seek work in order to be economically self-sustaining. The family would be returned together and could continue to enjoy their family and private life together in Nigeria the country of which they are all citizens.

45. I ascribe little weight to the private life of any of the members of the family in this case since they have established their respective private lives for the most part while here unlawfully. The children’s private lives are interconnected with their schooling and healthcare needs which I have dealt with above. The Appellant has not worked and he and Mrs Onasile have been dependent upon the charity of their church. By virtue of Section 117B (4) of the 2002 Act little weight is to be given to a private life established when the person is in the United Kingdom unlawfully as is the case here. There is thus very little to put in the scales in favour of the Appellant and his family when assessing the proportionality of interference. I find that the removal of the Appellants would be a proportionate. I therefore dismiss the Appellant’s appeal against the decision of the Respondent.

Anonymity Decision

46. The Appellant requests an anonymity order in this case by reason of Grace’s medical condition. There was no such order made at first instance. I decline to make an order because if find the public interest in the openness of Tribunals outweighs any temporary inconvenience to the parties.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law and I have set it aside.

I have remade the decision by dismissing the Appellant’s appeal against the Respondent’s decision to refuse to grant leave and to remove them.

Appellant’s appeal dismissed.

 

 

 

Signed this 12th day of February 2015

……………………………………………….

Deputy Upper Tribunal Judge Woodcraft

 

 

 

 

TO THE RESPONDENT

FEE AWARD

 

The First-tier Tribunal did not make a fee award in this case notwithstanding that the appeal had been allowed. As I have set that decision aside and remade the decision by dismissing the Appellants’ appeals I do not make a fee award either.

 

 

 

Signed this 12th day of February 2015

……………………………………………….

Deputy Upper Tribunal Judge Woodcraft