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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Osawemwenze, R (On the Application Of) v Secretary of State for the Home Department [2014] EWHC 1564 (Admin) (14 May 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/1564.html Cite as: [2014] EWHC 1564 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (AT MANCHESTER)

		Manchester Civil Justice Centre, 1 Bridge Street West, Manchester M60 9DJ
		14th May 2014

Mr Andrew Thomas QC:

1. This is an application for judicial review of the decision of the Secretary of State refusing the Claimant temporary leave to remain in the UK. The Claimant submits that the refusal of his application is a disproportionate interference with his Article 8 rights to a private and family life. He submits that leave should have been granted under Rule 276ADE(vi) of the Immigration Rules. In the alternative, he submits that leave should have been granted outside the rules under the Defendant's residual discretion.

Background

2. The Claimant is 44 years of age (born 11th April 1970) and a national of Nigeria. He came to the UK in March 1999, just before his 30th birthday. In 2004, he married his first wife, who was an EEA national. As a result he was granted temporary leave to remain for 5 years. He did not apply within time to extend that leave and since 2009 he has continued living in the UK without lawful right. In 2011 and 2012 the Claimant made three applications for leave to remain all of which were refused.
3. In the meantime, the Claimant divorced his first wife and began a relationship with his second wife, Ms Joy Andrew. They married on 24th April 2013.
4. Ms Andrew is herself a national of Nigeria. I have been provided with very little evidence about her circumstances. The papers do not show her age, her date of birth or the date she entered the UK. What is clear is that she came to this country at a comparatively late age. She does not have leave to remain.
5. There are three children of the family. The eldest is Fred Ahmed Sabry, who is 14 years of age. I am told that Fred is Ms Andrew's son by a previous relationship. Fred was born in Nigeria on the 29th of December 1999. The Claimant and Ms Andrew also have two younger children, aged 4 and 1 respectively. The youngest child is not referred to in the decision letter because it was not made clear that there was a third child, but there is no suggestion that this makes any material difference to the decision.
6. Fred Sabry has been granted temporary leave to remain in his own right. The decision in Fred's case is set out in a letter dated 18th June 2013. It was a decision reached under paragraph 276 ADE(iv) of the Immigration Rules on the basis that he has been living in the UK for more than 7 years. He has been granted leave for a period of 30 months (see para 276BE of the Rules). Fred is currently in Year 9 at a local High School, having been educated since primary school age at schools in the Greater Manchester area.
7. The evidence is that Ms Andrew does not have leave to remain in the UK. Beyond that, there is no evidence of her intentions. There has been no reference to any parallel application by her, nor has she participated in this judicial review. Mr Mandalia described this as a case of applications being made in piecemeal fashion.

The Application for Leave to Remain

8. The Claimant's request for leave to remain was refused on 7th June 2013. The letter of application itself is not included in the documents before the Court, but I am told by Counsel that the substance of it is repeated in the Detailed Statement of Grounds and also in a witness statement from the Claimant himself dated 5th September 2013.
9. The Claimant's case is that the decision is wrong in law and a disproportionate interference with Article 8 rights. The written grounds state:

"He may not have met all the requirements under paragraph 276ADE of the Immigration Rules but he meets the rules under Appendix FM and paragraph EX 1 as a parent of a child who has been in the UK continuously for 7 years and under 18 years who also has now been granted leave to remain in the UK and also that he 'has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK' and therefore still qualifies under the rules."

It is argued that leave to remain should be granted on account of the family life which has developed with his step-son Fred and other members of his family, and on the basis of his private life and activities in the UK over the past 15 years. He also refers to the Defendant's duty regarding the welfare of the children under Section 55 of the Borders, Citizenship and Immigration Act 2009.

10. The Claimant argues that regard should be had to his private life in the UK outside the family. However, apart from a letter from the minister of his church, no evidence of any kind has been filed to support this assertion.
11. The decision letter of 7th June 2013 shows that the application was considered under Appendix FM (Family Members) and Paragraph 276ADE (Private Life). For reasons which are set out in that letter, the decision was that the Claimant did not qualify under either of these grounds. The letter also concluded that there were no exceptional circumstances which might lead to a grant of leave to remain outside the rules.
12. The Claimant sought judicial review. Permission was granted by HHJ Pelling QC on 13th January 2014. On 21st January 2014 the Defendant issued a second decision letter giving much fuller reasons. The letter again confirmed the decision refusing the Claimant's application within the rules. It went on to consider whether paragraph EX.1 would have been satisfied even if the Claimant had qualified under the other provisions of Appendix FM. It also considered in much more detail the effect of the decision on other members of the family and the applicant of Section 55 of the Borders, Citizenship and Immigration Act 2009.
13. On behalf of the Claimant, Mr Bloomer conceded that matters had moved on since the first letter and the issue of the claim. His submissions were therefore directed at the reasons given in the second decision letter. Both Mr Bloomer and Mr Mandalia sensibly wished to focus on the substance of the decision. No point was taken on the absence of revised grounds or a skeleton argument addressing this issue.

Grounds of claim advanced at the hearing

14. Mr Bloomer's submissions before me advanced two distinct grounds:

(1) Leave to remain should have been granted under Paragraph 276ADE(vi) of the Immigration Rules because the Claimant has now lost all ties to Nigeria.

(2) In the alternative, discretionary leave to remain should have been granted outside the rules because of the Claimant's family responsibilities towards his step-son Fred Sabry.

Ground 1 - The Claimant has lost all ties to Nigeria

15. It is now common ground that the Claimant is ineligible under Appendix FM of the Immigration Rules (see E-LTRP.1.2 and E-LTRPT.2.3). Instead, Mr Bloomer advances the Claimant's case on private life grounds, under paragraph 276ADE. This provision was introduced into the rules with a view to reflecting the balance to be struck between the Article 8 right to respect for private life and the legitimate aims of immigration control. As is sometimes said, it means that Article 8 considerations are now 'embedded into the rules'.
16. Insofar as it is relevant to this case, paragraph 276ADE provides as follows:

276ADE. The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of the application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3 and S-LTR 3.1 in Appendix FM; and

…

(iii) has lived continuously in the UK for at least 20 years …; or

…

(vi) is aged 18 or above, has lived continuously in the UK for less than 20 years … but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.

17. The Claimant has lived in the UK for 15 years, without ever returning to his home country. Although he did not enter the UK lawfully, Mr Bloomer relies on the fact that there was a 5 year period of lawful residence (2004 to 2009).
18. No evidence has been placed before the Court to support the Claimant's case that he has lost all ties to Nigeria. I am told, and I accept, that his parents in Nigeria have both died. However, his witness statement simply does not address the issue of social, cultural or family ties at all. Mr Bloomer invites me to draw the inference that after 15 years such ties as there were must have diminished. However, the difficulty with drawing an inference based simply on the passage of years is that sub-paragraph (iii) provides for a 20 year qualifying period for an applicant over the age of 25. The Defendant has in drafting the new rules considered the the circumstances in which time alone might give rise to the relevant inference, and 15 years is not enough.
19. Mr Mandalia referred me to the decision of Burnett J in R (Kotecha) v SSHD (2011) EWHC 2070 (Admin), in which it was held (at para 56) that "it is … for the applicant to place before the Secretary of State all material upon which he relies to suggest that the consequences of removal would interfere with the Article 8 rights of the family". The burden of proof is on the applicant to show that there are obstacles to relocating (see para 21). In my view there is no evidence to support the bare assertion that the Claimant has lost all ties to Nigeria. Indeed, both Ms Andrew and Fred are Nigerian citizens. In my view, the claim cannot succeed on this ground.

Ground 2 - Residual discretion

20. Mr Bloomer's alternative submission is that the Claimant should have been granted temporary leave to remain under the Secretary of State's residual discretion. The Court's approach to the residual discretion is established by a number of well-known authorities. In many cases, the application of the new rules and guidance addresses any Article 8 considerations. However, the rules do not anticipate every conceivable circumstance, nor always do they allow for cumulative effect of a number of relevant factors. The residual discretion may therefore require a second stage of consideration. (See R (Nagre) v SSHD (2013) EWHC 720 (Admin) and MF (Nigeria) (2013) EWCA Civ 11920). The applicant needs to show compelling circumstances which have not been sufficiently recognised by the application of the rules. (See Nagre at para 43 and SSHD v Gulshan (2103) UKUT 00640 at para 24).
21. The applicant's task in showing that removal amounts to a disproportionate interference is all the more difficult where family life was established at a time when his immigration status was precarious. In such a case, the Claimant would have to show exceptional reasons why removal might be amount to disproportionate interference. (See in particular Nagre at paras 41 and 42, approved by the Court of Appeal in MF).
22. These factors have also very recently been considered by the European Court of Human Rights in Biao v Denmark (2014) (App 38590/10). The Court held as follows:

"53.  The Court reiterates that a State is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there … . Moreover, Article 8 does not entail a general obligation for a State to respect immigrants' choice of the country of their residence and to authorise family reunion in its territory. … . Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion … . Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. Where this is the case the removal of the non-national family member would be incompatible with Article 8 only in exceptional circumstances."

23. Section 55 of the Borders, Citizenship and Immigration Act 2009 gives rise to a special duty of consideration in cases which are liable to impact upon any children. The relevant provisions are as follows:

"55(1). The Secretary of State must make arrangements for ensuring that … (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of any children who are in the United Kingdom;

…

(2) The functions referred to in subsection (1) are -

(a) any function of the Secretary of State un relation to immigration, asylum or nationality;

(b) any function conferred by the Immigration Acts on an immigration officer;

… "

24. In the present case, the Claimant's status was precarious at the time his relationship was formed. The status of his partner, Ms Andrew, is likewise precarious. Both lived in Nigeria well into their adult lives. There is no suggestion that the two youngest children could not relocate to Nigeria.
25. The Claimant's case is therefore based on the submission that there would be disproportionate hardship to Fred Sabry. In particular, Mr Bloomer submits that Fred has been educated in UK schools. He has developed friendships with his classmates. He has lived in the UK for 10 of his 14 years. I have to take into account Fred's age and stage of development, and the stability which his settled status has provided.
26. Mr Bloomer submits that the Defendant took the wrong approach to the decision in this case. He submits that the Defendant should have taken as the starting point the fact that Fred is entitled to remain living in the UK and cannot be removed, and then gone on to consider whether requiring the Claimant and/or his partner to return to Nigeria without him would amount to a disproportionate interference with their family life. He submits that Section 55 likewise requires the Defendant to put Fred's interests at the forefront of her considerations.
27. On behalf of the Defendant, Mr Mandalia refers to the matters which were considered in the second decision letter, in particular under the heading of paragraph EX.1. If Fred returns to Nigeria he will be going with his parents, which provides him with stability. There is no evidence of ill health or special educational need. Schooling can be continued in Nigeria. It is likely that there are remaining family ties. Fred himself is a Nigerian and the younger children are entitled to Nigerian citizenship. Through his parents, Fred must have some awareness of Nigerian culture. Section 55 has been taken into account and there is no reason to believe that there would be any risk to the safety or welfare of any of the children.
28. In ZH (Tanzania) (2011) UKSC 4, the Supreme Court gave guidance on the approach to cases where it is proposed to remove a parent whose child (or children) has a right to remain in the UK. In ZH, the Claimant was a citizen of Tanzania but her partner was British-born. He and their two children were all British citizens.
29. The Supreme Court held that the Article 8 rights of all family members who might be affected by the decision should be considered, not just the applicant's. If the other family members cannot reasonably be expected to follow the applicant to the country of removal, it would rarely be proportionate to refuse the applicant leave to remain (para 15).
30. Baroness Hale held (at para 18) that the starting point is the right of all states to control the entry and residence of aliens. Thereafter, the factors to be taken into account include: the length of the applicant's stay in the country from which he is to be expelled; the nationalities of the various persons concerned; the applicant's family situation, such as the length of the marriage; whether family life was established knowing of the precariousness of the immigration situation; the ages of any children concerned; and the seriousness of the difficulties which the family is likely to encounter in the country to which the Appellant is to be expelled. The Court should take into account the fact that the situation is not one of the child's own making. Their interests are a primary consideration, but they are not paramount (see para 25).
31. Baroness Hale said that it was appropriate to take into account the background of both parents and their ability to integrate (or re-integrate) in the country of removal. She said (at para 31):

"It is not enough to say that a young child may readily adapt to life in another country. That may well be so, particularly if she moves with both her parents to a country which they know well and where they can easily re-integrate in their own community … But it is very different in the case of children who have lived here all their lives and are being expected to move to a country which they do not know and will be separated from a parent whom they also know well."

Conclusions

32. In my judgment, the Secretary of State has given full and proper consideration to the Article 8 rights of the affected members of the family, including those of the step-son Fred Sabry. In my view, the refusal of the Claimant's application does not amount to a disproportionate interference with the Claimant's own rights nor those of any of the affected family members.
33. The fact that Fred has been granted the right to remain in the UK is an important factor, as is his long residence in the UK, his stage of development and his educational history. I also attach weight to the fact that both the Claimant and Ms Andrew have now been living in the UK for many years, albeit without any lawful right to remain.
34. Applying both Section 55 and the guidance in ZH, it is clear that the safety and welfare of Fred Sabry are a primary consideration. However, that does not mean that the family necessarily must be given the right to remain living in the UK. The fact that one or more children of the family has a right to remain is an important consideration but not an overriding one. It is a circumstance which is already covered by the Immigration Rules in any event (see Section E-LTRPT of Appendix FM). The Claimant concedes that his case does not succeed within those rules. I am not persuaded that there was a material error of approach. I am satisfied that Fred's welfare was appropriately treated as a primary concern in the second decision letter.
35. For the reasons set out in the second decision letter, I am satisfied that it is reasonable to expect the Claimant's family, including Fred Sabry, to relocate to Nigeria. Both the Claimant and Ms Andrew are Nigerian nationals with long experience of living in that country. Fred Sabry himself is a Nigerian citizen. There is no reason to believe that the two parents have lost all social, cultural and family ties. They will be able to provide stability to the children of the family and help them integrate into Nigerian society. There are no exceptional reasons, such as any unusual medical condition or other particular need, why any of the family must remain in the UK. I recognise that this decision will involve a significant amount of disruption to family life, but the reasons advanced, whether viewed singularly or cumulatively, do not lead me to conclude that a decision which results in the return of the Claimant and his family to Nigeria would amount to a disproportionate interference with their Article 8 rights.
36. For these reasons the claim for judicial review is dismissed.