OU (Nigeria) & Ors v Secretary of State for the Home Department

This is an appeal to this court from a determination of Senior Immigration Judge Moulden issued on 1 June 2007, and it concerns proceedings under rule 298 of the Immigration Rules: that is to say, applications for indefinite leave to remain in the United Kingdom as the child of a parent or parents or a relative present and settled or being admitted for settlement in the United Kingdom. Various requirements are set out. In particular, that the persons concerned are seeking to remain with a parent or relative in various circumstances, including that the parent or relatives are settled in the United Kingdom and that there are serious and compelling family or other considerations which make exclusion of the child undesirable. The history is a somewhat surprising one in this case. I will, if I may, refer to the three applicants, who are all members of the Ugochukwu family, by their first names. That may not be those that they bear on their birth certificate, but which are those that have been used throughout the proceedings. The three applicants are Oscar, born in March 1983 and therefore now twenty-four years of age; Nadine, born in June 1984 and therefore twenty-three years of age; and Ursula born in March 1987, therefore now twenty years of age. Their history in this country, however, goes back as far as 1998.

When they arrived here, ostensibly for a holiday during which they stayed with a Mr and Mrs Achonna, who (or rather, more particularly, Mrs Achonna) is the relation relied on for present purposes. It is their case throughout that Mrs Achonna, and therefore Mr Achonna, are their aunt and uncle. While they came for a holiday, it appears to have transpired that they were unable to return to Nigeria because their parents, with whom they had been living, had gone to Sierra Leone. Quite in what circumstances that was originally thought to have happened is unclear, but it seems to have been the case that it became apparent to Mr and Mrs Achonna that the children (as they then were) could not return to the parents. Only the most perfunctory attempts appear to have been made to find out where the parents were, or whether there was any other way by which the children could go back to Nigeria. In the event, the three children remained living with Mr and Mrs Achonna. It is not clear who was supporting them, but since the evidence is that they had lost touch with their parents in Nigeria it is to be assumed that that was indeed Mr and Mrs Achonna.

Two, and possibly three, of the children have undertaken or are undertaking university courses and they apparently now live independently, or some of them independently, in London. The Secretary of State on receipt of the application under Rule 298 expressed himself as not satisfied that the three people were in fact related to Mr and Mrs Achonna. It therefore became the obligation of the applicants to establish that that was the case. A good deal of misunderstanding and, in my judgement, unnecessary theory has been expended in this case on what is comprised in the definition of “relative” in Rule 298. That was because Immigration Judge Kopieczek, who heard the original application, can be read as confining himself to consideration of blood relationship. In paragraph 54 of his determination he said:

A complaint was made, and indeed seems to have been accepted by the senior immigration judge, Senior Immigration Judge Moulden, that the immigration judge had confined himself to blood relationship as a matter of law, and that that might not be a correct interpretation of the requirements of Rule 298. For my part, I am in fact very doubtful whether the immigration judge was intending to make any statement of law at that point in his determination or elsewhere. That is because, on the facts of this case and as it was presented, only a blood relationship was relied on: the relationship of aunt and nephew between Mrs Achonna and the three applicants. That being so, this is certainly not a case in which this court should make any general determination as to the extent of relationships under the Rules.

The senior immigration judge did address this point. This judgment should not be taken as approving paragraph 11.94 of MacDonald’s Immigration Law and Practice that he relied on in paragraph 9 of his determination. What I would say is that clearly blood relationship is included. There may be other relations by marriage, but that again has to be marriage to a blood relation (in this case, Mr Achonna marrying Mrs Achonna); so the question will still be the existence of a blood relation, whether alive or dead. Other categories might include relationship created by operation of law, such as adoption or legal guardianship. None of the latter arise in this case. It has never been suggested that there has been any formal adoption of these children by Mr and Mrs Achonna; and a passing statement by Mr Achonna in his evidence, that when the children went to university he and his wife were taken to be their legal guardians, was clearly not intending to suggest a separate relationship with them, and was in the event not relied on by Mr Hay, not having been relied on below.

We therefore come back to the question of whether the senior immigration judge was justified in finding that Immigration Judge Kopieczek had correctly not been satisfied as to the uncle and aunt relationship. No documents were produced that might have assisted the court in that respect. What the immigration judge heard was oral evidence from Mr Achonna, from Nadine and from Ursula, in which Mr Achonna and Nadine simply asserted a relationship of aunt and uncle; but Ursula said that the relationship was that her mother’s mother and her aunt, Mrs Achonna, were cousins. She was not aware of her aunt having relatives in Nigeria. That, of course, was a quite different relationship between Ursula and Mrs Achonna than had been asserted by the other witnesses. The immigration judge pointed out this inconsistency and said this in paragraph 58:

He dismissed the application on the basis that the blood relationship relied on had not been established. In my judgement, he was entitled so to do. Mr Hay complains that the judge did not explain himself sufficiently. He explained himself perfectly sufficiently. It was not his obligation to turn himself into an inquisition in order to pursue the matter further. Mr Hay then argued that, having found that the blood relationship had not been established, the judge ought to have considered whether there was some “relationship” of a more indirect sort, such as might be thought to emanate from a period of living together and caring for the children, such as Mr and Mrs Achonna had engaged in. There are two difficulties about that argument. First of all, I cannot start to see how such a person could claim to be, in any formal terms, a “relative” for the purposes of Rule 298. Second, the case had never been put in those terms. Until it came into this court this morning it had been presented as standing and falling on the blood relationship, the blood relationship that the immigration judge found not to have been established. When the matter came before Senior Immigration Judge Moulden, he went through the submissions, broadly as I have set them out. He considered, as I have pointed out, that the immigration judge had thought that the law was confined to blood relationships and that he so thought that was an error of law, but he rightly found that that error of law was not material. He said this in paragraph 14:

The exception was of course the evidence of Ursula. Senior Immigration Judge Moulden found that it was well open to Immigration Judge Kopieczek on the evidence, and for the reasons that he gave, to find that that evidence had not established that the appellants and the sponsors were related in any way. Both of those conclusions by a specialist court were well open to it. In reaching that conclusion, neither the immigration judge nor the senior immigration judge made any error of law. There is, I fear, nothing in this appeal. I would dismiss it.

I agree.

I too agree.