IA000252016

The appellant appealed against that decision. His appeal was heard by First-tier Tribunal Judge White on 19 April 2017, by which time the children were aged 8½, 6 ¾ and 3½. The judge recorded that it was accepted by the appellant's representative that the eldest child Williams had not been in the UK for 7 years at the date of the application and the appeal was therefore focussed on Article 8 outside the immigration rules and whether there were any compelling circumstances justifying a grant of leave outside the immigration rules. The judge found that it was in the best interests of the children to stay together and with their parents. In the case of the younger two, he considered that that could be in any country, but in the case of the eldest Williams he found that if his best interests were in remaining in the UK, it was only marginally. The judge concluded, however, that it was reasonable to expect Williams to leave the UK with the rest of his family and he found that the respondent's decision to remove the family to Nigeria was therefore proportionate. He accordingly dismissed the appeal on human rights grounds.

Permission to appeal to the Upper Tribunal was sought by the appellant on the grounds that the judge had failed to distinguish between the adults and the children, that there had been no separate consideration of the children under section 117B(1) - (5) of the Nationality, Immigration and Asylum Act 2002 and that there had been an error in the consideration of section 117B(6).

Permission was initially refused in the First-tier Tribunal, but was subsequently granted by the Upper Tribunal on the basis that the judge had arguably failed to attach significant weight to the qualifying child's length of residence in determining reasonableness pursuant to the guidance in MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705 .

At the hearing both parties made submissions.

Mr Mannan's submission was that the judge had given inadequate weight to factors which should have been accorded significant weight, namely the length of time the eldest child Williams had been in the UK and his integration into the UK in terms of language and education. The judge had erred by placing too much weight on the fact that the family would be kept together if removed to Nigeria.

Ms Pal submitted that the judge's approach was correct, that he took account of all relevant matters and that the matter of weight was for him to decide.

I find no error of law in the judge's decision. The decision is in fact a detailed and careful one which addresses all relevant matters, correctly applies relevant caselaw and provides detailed and cogent reasoning. There is no merit in the suggestion that the judge erred by failing to follow the approach in MA . On the contrary, the judge's decision was entirely consistent with the approach set out in that case. The judge commenced, as he was supposed to do, by considering the best interests of the children. In so doing he had full and careful regard to the circumstances of all three children, including their education and level of integration into the UK and the fact that the eldest child had been in the UK for more than 7 years. His conclusion, set out at [19], was that the best interests of the children were to remain with their parents as a family unit and that that could be in any country in the case of the youngest two. In the case of the eldest child he concluded that his best interests marginally lay in remaining in the UK with his family. He explained why that was so and was fully and properly entitled to conclude as he did.

The grounds of challenge and Mr Mannan's submissions are that, given the eldest child's length of residence in the UK and level of integration, and given the finding as to his best interests, it was then for the respondent to demonstrate exceptional reasons as to why he should not be removed from the UK, which she had not done. It is suggested that that was the correct approach as set out in MA . However it seems to me that the judge followed what was the correct approach in MA , as he set out at [9], namely to consider the best interests of the children, in particular the eldest child, as a significantly weighty matter but to then go on and consider all other matters in assessing reasonableness, including the relevant public interest considerations. That is precisely what the judge did at [20] and [21]. He was perfectly entitled to consider the immigration history of the appellant and his wife as part of the reasonableness assessment and to conclude that it was reasonable to expect the eldest child to leave the UK with his parents and return to Nigeria as a family unit. Such a conclusion was supported by detailed and cogent reasoning and was entirely open to the judge on the evidence before him. The judge was therefore entitled to conclude that section 117B(6) did not assist the appellant and, having again considered the family's circumstances in the UK and in Nigeria, to conclude that the respondent's decision was a proportionate one and did not breach the appellant's Article 8 human rights.

Accordingly the judge was entitled to dismiss the appeal on the basis that he did. I find no errors of law in his decision, which I uphold.

T he making of the decision of the First-tier Tribunal did not involve an error on a point of law. I do not set aside the decision. The decision to dismiss the appeal stands .