MT & Anor v The Secretary of State for the Home Department

The appellants, citizens of Nigeria, are respectively mother and daughter. The mother, MT, arrived in the United Kingdom with the daughter in July 2007. At that time the daughter, ET, was 4 years old. The appellants entered as visitors and overstayed. The mother made several applications for leave to remain on Article 8 grounds, which were refused. Following her last refusal, she appealed to the First-tier Tribunal. Her appeal was dismissed by Immigration Judge Birrell in January 2011.

The mother applied for asylum in 2011, which was refused and certified. Following a successful judicial review by the mother, the respondent made a new decision, carrying an in-country right of appeal. The mother appealed to the First-tier Tribunal and her appeal was dismissed by First-tier Tribunal Judge Baird in November 2012.

Further applications ensued, leading to the respondent’s decisions in August 2016 to refuse the appellants’ human rights claims.

The appellants appealed to the First-tier Tribunal. On 6 July 2017, their appeals were heard in Manchester by Upper Tribunal Judge Martin, sitting in the First-tier Tribunal. She dismissed the appellants’ appeals in an oral (ex tempore) decision delivered at the hearing and subsequently reduced to writing.

Permission to appeal was granted by the Upper Tribunal on 26 September 2017.

The appellants’ appeals were dealt with as part of the “Proof of Concept for the Extempore Judgment Pilot 2017”. A letter to the mother from the First-tier Tribunal, dated 7 March 2017, explained the Proof of Concept:-

Also on 7 March 2017, the First-tier Tribunal issued the parties with the following directions:-

On 2 May 2017, Greater Manchester Immigration Aid Unit, on behalf of the appellants, submitted a bundle of documents. This included a skeleton argument, which, having set out extracts from case law, summarised the appellants’ case as follows:-

In her statement within the bundle, the mother, MT, said that “I have already explained the problems that I have with my ex-husband in Nigeria, and I still maintain that what I have said about him is true”. So far as ET was concerned, the mother’s statement said that “She was only 4 years old when she came. Since that time she has grown up in the UK. She has attended nursery in the UK, following which she attended primary school, and then high school”. The statement referred to ET “preparing for her GCSE’s”, when she was going to be “studying maths, science, history, geography, PE, English language and literature, French, Spanish and Religious Education”. ET was said to be involved in the activities of a church in the United Kingdom and to have a circle of friends who were said to be “stable” and to provide her with support. The statement referred to ET’s knowledge of the wider world having started only after she arrived in the United Kingdom and that she was now “thoroughly familiar with and comfortable with the English way of life. She does not know what life is like in Nigeria”. The mother’s statement ended by pointing out that the Home Office had not taken any steps to remove her and her daughter, since the mother’s last appeal was dismissed in 2012.

ET provided a handwritten letter, which was also in the bundle. In this she said that “Till this day, I still have the fear of going back to Nigeria where my school teachers beat me severely because my dad refused to pay my school fees”. She also said:-

The report from ET’s Roman Catholic High School, also in the bundle, said that:-

On 15 May 2017, the respondent provided a “Statement of Issues and Response” in connection with the forthcoming appeals. Under “Section A” the respondent stated that she had decided to oppose the appeals on the basis that the appellants did not meet the requirements of the Immigration Rules and that they could not succeed “on Article 8 outside the rules”.

Under “Section B”, the respondent stated that the appellant (sic) was entitled to succeed if she proved to the required standard of proof that “the burden of proof is on [MT] to show that there would be very significant obstacles to her integration to Nigerian society and “the burden of proof is on [ET] to show that it is unreasonable for her to be removed to Ghana (sic) with her mother [MT]”. The respondent stated that she continued to rely on the detailed reasons for refusal letter of 16 August 2016 and that in the view of the Secretary of State “the factual issues to be resolved at the hearing are as set out above”.

The reasons for refusal letter of 16 August 2016 set out the reasons why the respondent considered that the appellants did not meet the requirements of the Immigration Rules. So far as ET was concerned, it was noted that at the date of application she had lived in the United Kingdom for eight years and nine months. In response to the submission that it would be unreasonable to expect ET to return to Nigeria, the respondent considered that ET would be returning to Nigeria with her mother “clearly the most important person in her life”. Her mother “would be able to assist [ET] whilst she re-adapts to life in Nigeria”. Although ET was enrolled in a school in the United Kingdom, it was clear from objective information available that Nigeria had a functioning education system, which ET would be able to enter. Although ET had not lived in Nigeria since she was 4 years old, she had remained in the care of nationals of Nigeria and would therefore be aware, to some extent, of the language and culture of Nigeria (the official language of which is English). Finally in this regard, the letter stated that:-

At the hearing, the Judge allowed the respondent’s representative to admit the written determination of First-tier Tribunal Judge Baird, from 2012, concerning the appellants. In that determination, Judge Baird made adverse credibility findings regarding the claim that ET’s father in Nigeria posed a risk of harm to her. Judge Baird found as follows:-

Judge Martin noted that:

Having made that finding, Judge Martin did not consider that it required the appeals to be allowed. She noted that section 117B(6) of the Nationality, Immigration and Asylum Act 2002 had been interpreted by the Court of Appeal in MA (Pakistan) and Others v Secretary of State for the Home Department [2016] EWCA Civ 705. That provision states that the public interest does not require a person’s removal where the person (who is not liable to deportation) has 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 MA , the Court of Appeal held that in determining what was reasonable, the issue is not solely to be looked at from the child’s perspective but requires a balancing exercise between what was in the public interest and what was in the interests of the child.

Judge Martin’s decision continued as follows:-

We are satisfied that the Judge fell into legal error, both as regards the way in which she conducted the Proof of Concept pilot hearing and otherwise. Mr Deller, for the respondent, did not seek to persuade us otherwise. Indeed, he accepted that such errors had occurred.

The Proof of Concept letter and the directions issued with it made it clear that the respondent was expected to identify the factual issues which, if determined in favour of the appellants, would lead to their appeals being allowed. It is quite apparent from the Statement of Issues and Response of 15 May 2017, read with the reasons for refusal letter of 16 August 2016, that the respondent’s case on Article 8 depended upon the First-tier Tribunal finding, as a fact, that ET’s best interests lay in moving to Nigeria with her mother. Importantly, there was no indication in the letter that the respondent was seeking to support the case that, even if ET’s best interests now lay in remaining in the United Kingdom, the particular immigration history of MT was such that the Article 8 proportionality balancing exercise nevertheless fell to be struck in favour of the respondent, on public interest grounds.

It should, therefore, have been apparent to the Judge on 6 July 2017 that the decision of the respondent’s Presenting Officer to put before the Judge and to seek to rely upon the determination of First-tier Tribunal Judge Baird from 2012 represented a material shift on the respondent’s part, from her stance as indicated in the Statement of Issues and Response of some seven weeks earlier.

It is nothing to the point that the “starred” case of Devaseelan v Secretary of State for the Home Department [2002] IAT 702 requires a judicial fact–finder to take a previous judicial finding of fact in respect of an appellant as the starting point for consideration of that appellant’s current case. Nor is it anything to the point that appellant MT and her advisers could be expected to know about the 2012 determination. The approach taken by the Proof of Concept exercise depended upon the respondent being willing to state to the First-tier Tribunal that, if certain matters were found in favour of the appellants, then the respondent accepted that the appeal fell to be allowed. On the facts of the present case, that manifestly did not enable the Judge to embark upon a proportionality balancing exercise that placed weight upon (a) findings from 2012 regarding the reliability of ET’s evidence to Judge Baird; (b) the fact that MT had made “an unfounded asylum claim and was found to be a dishonest witness” in 2012; (c) that she had committed “an offence of fraud”; and (d) that MT had “neither mentioned the previous determination of Judge Baird nor did she mention her education qualifications” (paragraph 29 of the decision).

The stance of the Presenting Officer on 6 July 2017 was, we consider, analogous with the situation where the respondent seeks to withdraw a concession, previously made in appellate proceedings. In MSM (journalists; political opinion; risk) Somalia [2015] UKUT 413, the Upper Tribunal explained that a judge needs to adopt a broad approach to the issue of whether the respondent should be allowed to withdraw a concession. Amongst other matters, fairness to the litigant will need to be considered (paragraph 24). At the very least, what the Judge should have done was to consider whether, in the interests of the overriding objective, the respondent should have been permitted to change her stance. There is no indication that she considered this point. Were she to have done so and to have decided to allow the respondent to do so, then the appeal should have been removed from the Proof of Concept programme, so as to enable the appellants to have a fair opportunity of responding.

Furthermore and in any event, we agree with Mr Nicholson and Mr Deller that the Judge fell into error in the way in which she dealt with the evidence of ET. In her judgment, the Judge found that ET had not told the truth about her memory of her schoolteachers beating her because her father had refused to pay ET’s school fees. It is evident, reading the decision and reasons as a whole, that the Judge regarded this matter as reflecting adversely on the behaviour of ET’s mother, with the result that the public interest in removing the mother became stronger.

ET gave evidence at the hearing. Notwithstanding the fact that the Presenting Officer chose not to cross-examine ET, the Judge should have asked ET questions about this aspect of her evidence. Her failure to do so was a further error of law.

The Judge’s errors were, we find, such as to require this Tribunal to set her decision aside. We do so and proceed to re-make a decision in the appeal.

In MA Elias LJ held as follows:-

At paragraph 46, Elias LJ held that:-

Matters have, of course moved on from 15 May 2017, when the respondent issued her Statement of Issues and Response. In re-making this decision, accordingly, the Upper Tribunal does not find itself in the same position as that of Judge Martin. We are not bound by the constraints of the Proof of Concept process. Mr Nicholson therefore did not urge us to find that we must allow the appeal, without more, if we find that ET’s best interests lie in remaining in the United Kingdom.

The fact that ET’s best interests do so lie is, we find, manifest. In this regard, we entirely agree with and endorse Judge Martin’s findings on this issue in her decision. ET has been in the United Kingdom for over ten years. She arrived here when she was only 4. She is well advanced in her education in this country. As a 14 year old, she can plainly be expected to have established significant social contacts involving friends in school and outside (such as at church). She has embarked on a course of studies leading to the taking of GCSEs.

Conversely, ET has no direct experience of Nigeria. Whether or not there is a functioning education system in that country, her best interests, in terms of section 55 of the 2009 Act, manifestly lie in remaining in the United Kingdom with her mother rather than, as the respondent contended, returning to Nigeria with her mother. A much younger child, who has not started school or who has only recently done so will have difficulty in establishing that her Article 8 private and family life has a material element, which lies outside her need to live with her parent or parents, wherever that may be. This position, however, changes over time, with the result that an assessment of best interests must adopt a correspondingly wider focus, examining the child’s position in the wider world, of which school will usually be an important part.

This is why both the age of the child and the amount of time spent by the child in the United Kingdom will be relevant in determining, for the purposes of section 55/Article 8, where the best interests of the child lie.

On the present state of the law, as set out in MA , we need to look for “powerful reasons” why a child who has been in the United Kingdom for over ten years should be removed, notwithstanding that her best interests lie in remaining.

In the present case, there are no such powerful reasons. Of course, the public interest lies in removing a person, such as MT, who has abused the immigration laws of the United Kingdom. Although Mr Deller did not seek to rely on it, we take account of the fact that, as recorded in Judge Baird’s decision, MT had, at some stage, received a community order for using a false document to obtain employment. But, given the strength of ET’s case, MT’s conduct in our view comes nowhere close to requiring the respondent to succeed and Mr Deller did not strongly urge us to so find. Mr Nicholson submitted that, even on the findings of Judge Martin, MT was what might be described as a somewhat run of the mill immigration offender who came to the United Kingdom on a visit visa, overstayed, made a claim for asylum that was found to be false and who has pursued various legal means of remaining in the United Kingdom. None of this is to be taken in any way as excusing or downplaying MT’s unlawful behaviour. The point is that her immigration history is not so bad as to constitute the kind of “powerful” reason that would render reasonable the removal of ET to Nigeria.

Before concluding, it may be helpful to make some general observations about the Proof of Concept for the Extempore Judgment Pilot. The aim of dealing with immigration and asylum appeals as efficiently as possible is plainly a laudable one. It is recognised across the legal system that the giving of ex tempore decisions furthers that aim. Any formal attempt to identify and manage in advance those cases which may lend themselves to the giving of such decisions will, however, need careful handling. Where, as here, the immigration history of the appellant involves previous judicial decisions, the appellant and the respondent need to be aware of the stance taken by the other in respect of those decisions.

Both protection and human rights claims will involve the judicial fact-finder in making a value judgment, such as whether the appellant faces a well-founded fear of persecution or whether removal would be a disproportionate interference with the appellant’s Article 8 rights. If the 2017 Proof of Concept were to lead to a pilot exercise, the cases that might appropriately be covered by it would in our view include those where the respondent and the appellant are agreed on the value judgment, but not on the facts, so that if the facts are found in the appellant’s favour, the respondent accepts that the appeal falls to be allowed. An obvious category would be where the appellant, if credible, faces a real risk of Article 3 treatment, if returned to his country of nationality.

Another category would be where there is no dispute as to the facts but the parties are not agreed as to the result of the application of the relevant value judgment; for instance, whether removal would be a disproportionate interference with article 8. We have seen in the present case how, in this category, care needs to be taken to ensure that all the relevant facts are truly agreed. In particular, if the respondent intends to rely upon a particular aspect of the appellant’s history, as going to the public interest in removal, then that needs to be clearly explained.

On the face of it, where neither the facts nor the result of applying the value judgment to the facts is agreed, it is unlikely that the case would be suitable for a pilot project, along the lines of the Proof of Concept.