IA124962014

For the Appellant: Mr M L Youssefzan of Counsel instructed by D J Webb & Co, Solicitor

On the evidence before me, I have no doubt that the appellant has the sole responsibility in the upbringing of his British citizen daughter. She lives with her father and he makes all the important decisions I her life. He has made adjustments to his own life to ensure that S gets the best possible care from him. I give due weight to the letter from Evolution Health dated 26 September 2014, confirming that the appellant is the main carer for the child: letters from doctors and from NHS addressed to the child residing with the appellant.

Upon a proper application of principles set out in ZH and Zambrano , I find that the best interests of S lie with her continued stay in the United Kingdom with both her parents. It is completely unreasonable to expect a two-year-old child who is a British citizen to be removed from the United Kingdom to Nigeria, thus denying her access to her mother who will continue to live in the United Kingdom.

I note that the appellant has never been a burden on the state and that he has no criminal record. He has sole responsibility for a British citizen infant. His record of service to the United Kingdom has been exemplary.

Taking all the facts together, I find that the appellant qualifies for leave under E-LTRPT 2.3 of Appendix FM.I also find that for the exceptional reasons set out hereinabove the appellant meets the Appendix FM. I agree with Judge Perry that the correct approach to applying Article 8 is the well-known 5-stage Razgar test. However unlike him, I find that whilst the interference with his rights under Article 8 may well be legitimate, it s surely not proportionate to remove the appellant and his infant child to the legitimate public end sought to be achieved.