Family’s love wins

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
6 April 2016

We have had tremendous success with a claimant who was born in 1953 and is a citizen of Nigeria. She entered the UK on 4th September 2008 as a visitor and has remained in the UK ever since. She has three adult children, two of whom are British nationals and the third has leave to remain in the UK as a partner under Appendix FM and is on a ten year route to settlement. There are also two grandchildren.

In October 2008 before instructing us she applied for indefinite leave to remain as an adult dependent relative. That application was refused and her appeal was dismissed on 10th May 2010. She made a further application as a dependent relative and under the Private and Family Life Immigration Rules, the application was refused and the appeal was dismissed in March 2014. Permission to appeal was granted and the Upper Tribunal found an error of law by the Second Tribunal. The appeal was remitted to the First Tier Tribunal for hearing denovo. Again a determination was made on 15th January 2015 and the appeal was dismissed under the Immigration Rules but allowed under Article 8 of the Human Rights Act on the basis of our client’s family and private life with her three daughters and two grandchildren in the UK.

The Tribunal found the evidence from the claimant and her three daughters to be credible. It found that she faced a risk of assault and intimidation from her step son in the event of her return to her former home in Nigeria. A reference was made to the period of time when the claimant lived in the UK without leave and considered whether or not weight should be given to her private life established in the UK when she had a precarious immigration status. In considering the best interests of her grandchildren, the Tribunal found that she played a significant part in the life of her grandchildren and that her absence was likely to have an emotional impact on them despite their young age. It was also noted that the fact that she provided childcare for her children enabled them to accommodate and provide for her in the UK.

After our victory in Court, in 2015, the Secretary of State sought permission to appeal the decision on the grounds that the Tribunal materially misdirected itself in law by failing to engage with the findings of the Tribunal in 2010. The permission to appeal was granted to the Home Office on the grounds that it was arguable that the First Tier Tribunal erred in following a case called Tevaseelan. The case continued and an error of law hearing took place. We won the case again and our client was granted indefinite leave to remain in the UK because the Tribunal found that the First Tier Tribunal was fully aware of the findings of fact made by the Tribunal in 2010 and there was no error of law.

The importance of this case for our client and many people in her position is that when the Home Office looks at the family life of a person in her position and the engagement of Article 8 they have to pay careful attention to what is meant by the term “exceptional circumstances” justifying the grant of leave outside the immigration Rules. The guidance on exceptional circumstances to cases that fall to be determined outside the Immigration Rules have been considered in a number of cases and the Judge and the Home Office need to employ an objective approach and should avoid a tick box exercise. The use of the phrase “exceptional circumstances” means that the weighing exercise contemplated by the Rules is to be carried out compatibly with the Convention.

In the context of our client “exceptional” meant circumstances in which the removal would result in unjustifiably harsh consequences for the individual and the family. Furthermore, in another case it was interpreted to mean circumstances which evoke compassion in the mind of the decision maker.

This case also asks us to consider the concept of “family life” within the meaning of Article 8. Rather than applying a blanket rule with regard to adult children each case needs to be analysed on its own facts and to decide whether or not family life exists within the meaning of Article 8(1). Generally the protection of family life under Article 8 involves cohabiting dependents such as parents and the dependents’ minor children. Whether it extends to other relationships depends on the circumstances of a particular case. A number of cases have concluded that the existence or non-existence of family life for the purposes of Article 8 is essentially a question of fact depending on the real existence in practice of close personal ties. Our argument was that our client developed a significant private life in the UK and that Article 8 also protects the right to establish and develop relationships with other human beings and can sometimes embrace aspects of the individual’s social identity. We have demonstrated the totality of social ties between our client and her community private life within the meaning of Article 8. We further argued that this case engaged Section 55 of the Borders Citizenship & Immigration Act 2009 and therefore the grandchildren’s best interests were a primary consideration.

The best interests of the grandchildren became an integral part of the proportionality assessment under Article 8.

In addition it was submitted that refusal will have a significantly adverse effect on the UK family member and such an effect is a relevant consideration in this appeal. Our success was a great relief to all the family members and we are delighted in their happiness.