SO (Nigeria) v Secretary of State for the Home Department [2007] EWCA Civ 76

Case No C5/2006/0079[2007] EWCA Civ 76
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. TH/08972/2004]
Venue Royal Courts of JusticeDate Tuesday, 30 January 2007
Strand
London, WC2
B E F O R E:
LORD JUSTICE AULD
LORD JUSTICE WALL
LADY JUSTICE HALLETT
Between
SO (Nigeria)Appellant- v -
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR I EHIRIBE (instructed by Walthann Solicitors, Capability Green, LUTON LU1 3PE) appeared for Appellant.MR N SHELDON (instructed by the Treasury Solicitor) appeared for Respondent.
J U D G M E N T

LADY JUSTICE HALLETT:

[1]The appellants, two brothers and a sister, are Nigerian nationals who were born on 5 May 1985, 21 June 1986 and 24 February 1988 respectively. For most of their lives they have lived with their mother in Nigeria. Their father was resident in the United Kingdom for some years. There had been regular visits between members of the family and there had been plans for the children to move with their mother to join their father in the United Kingdom. However, sadly, the father was murdered in the United Kingdom on 8 April 1992. Thereafter, their uncle assisted their mother with their upbringing. He, too, died on 26 December 2000. The appellant’s mother then began a relationship with a family friend, Mr SE, with whom the appellants do not get on. They describe him as a tyrant and say he is violent and abusive. Their mother appears to disagree.[2]On 4 August 2002 the appellants arrived in the United Kingdom with their mother. They were granted six months leave to enter as visitors. The intention behind the visit was said to be to commemorate the tenth anniversary of the death of their father and to visit his grave. The appellants and their mother stayed with their maternal great aunt, Mrs CO and their half sister Mrs OO. Both of them are resident in the United Kingdom and wish to act as sponsors. The appellants decided they did not want to return to Nigeria with their mother. She returned home and she still lives with SE back in Nigeria.[3]On 9 November 2002 an application was lodged with the Secretary of State on their behalf for indefinite leave to remain in the United Kingdom as the dependent relatives of the sister and maternal great aunt. At the time the application was lodged they were all minors. On 6 June 2003, the Secretary of State refused the application. They appealed to the Immigration Appellant Authority. By the time their case was heard two of the appellants had reached the age of eighteen. An Adjudicator dismissed the appeal by a determination promulgated on 17 December 2004.[4]The Adjudicator accepted the appellants’ claims that SE had made them feel unwelcome in their home and that their mother is “in denial about his shortcomings”. However the Adjudicator did not accept that the appellants’ mother had abandoned them or had refused to have them back. In paragraph 9 of her determination the Adjudicator referred to what she described as “a dearth of evidence” before her as to the mother’s actual living conditions and the logistics of the appellants setting up a quasi-independent life in Nigeria assisted by their mother and their UK sponsors. She considered, however, that the first appellant is a mature, well balanced and articulate young man of an age to “fly the nest”. She decided he would make a responsible head of a new household in Nigeria. She decided that there were no serious and compelling reasons within the dependent child provisions of the Immigration Rules and she rejected the appeal based upon the rules themselves. She said she gave the appellants the benefit of the doubt as to whether Article 8 of the ECHR was engaged. She accepted the appellants had established a family life here with their half sister and great aunt but she decided that their case did not fall within the exceptional category envisaged in M (Croatia) [2004] UKIAT 00024. She therefore rejected the Article 8 claim.[5]A further application for permission to appeal to the Immigration Appeal Tribunal was considered and refused in March 2005. However, Munby J on an application for judicial review reversed the decision of the Tribunal refusing permission to appeal. He found that there was an arguable error of law. There were two bases to that argument: 1) the construction of section 85 (4) of the Nationality Immigration and Asylum Act 2002, to which I shall return; and 2) the fact that the Adjudicator had relied upon the decision in M (Croatia) and did not have the benefit of the decision of this court in Huang [2005] EWCA Civ 105 reported at 2006 QB1.[6]On 14 December 2005 the Tribunal dismissed the appeal on the grounds that it was satisfied that there was no material error of law in the determination of 17 December 2004. The appellants originally advanced three grounds of appeal. Latham LJ refused permission to appeal on ground 1 but permitted an appeal on ground 2. His order was silent as to ground 3. The parties have proceeded on the assumption that there are two live grounds of appeal: 1), that the Adjudicator erred in relying upon the fact that two of the three appellants before her had attained the age of eighteen by the time of the hearing, and the tribunal, therefore, also erred in upholding her finding; 2) both the Adjudicator and the Tribunal erred in finding that the circumstances of the appellants’ case were not truly exceptional for the purposes of the Article 8 claim.[7]The legal framework is agreed. It is common ground that the relevant Immigration Rules for this appeal are to be found at paragraphs 27 and 298. Paragraph 27 provides, “An application for entry clearance is to be decided in the light of the circumstances existing at the time of the decision, except that an applicant will not be refused an entry clearance where entry is sought in one of the categories contained in paragraphs 296 to 316 solely on account of his attaining the age of 18 years between receipt of his application and the date of the decision on it”. It is important to note the use of the word “solely” in that paragraph.[8]Paragraph 298, where relevant, relates to applications for those seeking indefinite leave to remain in the United Kingdom as a child. It provides:
“The requirements to be met by a person seeking indefinite leave to remain in the United Kingdom as the child of a … relative present and settled in the United Kingdom are that he: (i) is seeking to remain with a… relative in one of the following circumstances: ……. (d) a relative is present and settled in the United Kingdom and there are serious and compelling family or other considerations which make the exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and (ii) has limited leave to enter or remain in the United Kingdom, and (a) is under the age of 18; or (b) was given leave to enter or remain with a view to settlement under paragraph 302; and (iii) is not leading an independent life, is unmarried, and has not formed an independent family unit…..”
Section 85 of the Nationality Immigration and Asylum Act 2002 is also relevant. Subsections 4 and 5 provide:
“(4) On an appeal under Section 82 (1) or 83 (2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision. (5) But in relation to an appeal under section 82 (1) against refusal of entry clearance or refusal of the certificate of entitlement under Section 10 – (a) subsection (4) shall not apply, and (b) the Tribunal may consider only the circumstances appertaining at the time of the decision to refuse.” ……. (d) a relative is present and settled in the United Kingdom and there are serious and compelling family or other considerations which make the exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and (a) is under the age of 18; or (b) was given leave to enter or remain with a view to settlement under paragraph 302; and (iii) is not leading an independent life, is unmarried, and has not formed an independent family unit…..” (a) subsection (4) shall not apply, and (b) the Tribunal may consider only the circumstances appertaining at the time of the decision to refuse.”
[9]Thus where an application is made for entry clearance the decision must be taken according to the circumstances prevailing at the time of the decision. Entry must not be refused solely on the ground that the applicant is no longer a minor. For appeals, a clear distinction has been drawn between appeals to the Tribunal from refusals to grant entry clearance and an appeal of the kind we have here. In an appeal for the former the tribunal is restricted to a consideration of the circumstances appertaining at the time of the decision to refuse. In an appeal against a refusal to grant leave to remain as a dependent child, the Tribunal may take into account where relevant what has happened after the initial application.[10]However, despite what, in my view, are the clear provisions of Section 85(4) Mr Ehiribe, who appeared on behalf of the appellants before us, was able to deploy against the Secretary of State guidance issued by his own department to immigration officers on the implementation of the Rules. We were referred to extracts from a document entitled “Immigration Directorates’ Instructions” and under 2.3 headed “After entry”, it states:
“Although not specified in HC 395 applications for leave/further leave to remain made by or on behalf of children should also be decided in the light of the circumstances existing at the time of the decision… If the application was lodged before he reached the age of 18, it should be decided as if he were still under 18.”
It is not clear to me the basis in law for that guidance and indeed Mr Ehiribe and Mr Sheldon, who appeared instructed by the Treasury Solicitor, could not point to any Immigration Rule or other statutory provision to justify such guidance. It seems to me to go far further than the statutory provisions.[11]The arguments advanced on behalf of the appellants have been developed and refined somewhat at various stages of the process. Before the Tribunal Mr Ehiribe’s predecessor attempted to argue, it seems for the first time, that the guidance in 2.3 meant that the Adjudicator should not have taken into account at all the fact that two of the appellants had reached the age of eighteen before the determination. The Tribunal rejected this argument as nonsensical given the test to be applied in paragraph 258 and the clear words of Section 85 (4). The Tribunal interpreted the provisions of 2.3 as an attempt to remove the anomaly between applications for entry clearance and applications for indefinite leave to remain. The Tribunal decided that 2.3 should be read as saying that in applications for indefinite leave to remain the application should not be refused solely because the applicant has reached the age of eighteen before the decision. It went on to hold that the Adjudicator did not decide against the appellants solely on the basis of two of them having reached the age of majority. 12. The argument as advanced by Mr Ehiribe before us in a nutshell is that the Tribunal was right to decide that if paragraph 27 of the Immigration Rules and paragraph 2.3 of the IDI are read together an application for leave or further leave to remain should not be refused solely because the applicant has obtained the age of eighteen since the date of lodgement. But, he argued the Tribunal was wrong to decide that was not the sole basis for the Adjudicator’s decision. He submitted the Adjudicator placed far too great an emphasis upon the majority and maturity of the first appellant. He argued that her reliance upon the fact she had found he was able to “fly the nest”, as she put it, shows that she had not focussed on the essential and real issues. He submitted that she had not focussed on the compelling and compassionate factors that he submitted would render the continued exclusion of the appellants from the United Kingdom undesirable. He summarised those compelling reasons as follows: (i). The death of the appellants’ biological father and their uncle, who had looked after them at very tender ages. (ii). the physical and verbal abuse to which the appellants were subjected by Mr E, as outlined in the first appellant’s witness statement. (iii). the fact they do not have a home in Nigeria to return to. (iv). the fact that they must have a perception that their mother has condoned the ill treatment meted out to them and lastly. (v). the extent and magnitude of the warmth and care extended to them by their maternal grand aunt and sister.[13]Mr Ehiribe took exception to the Adjudicator’s reliance upon Section 85 (4). In a novel submission he suggested that Section 85 (4) did not apply to appeals of this kind. He said it was more appropriately relied upon in Article 3 and asylum cases to assess the extent of human rights abuses and persecution as at the date of hearing, where an appellant faces removal or deportation to his home country. He argued that reliance upon Section 85(4) in this case flies in the face of the principle that Immigration Rules and laws have to be interpreted purposively to give effect to Article 8 obligations. 14.With respect to Mr Ehiribe’s ingenuity, in my view his interpretation of Section 85(4) is simply unarguable. The adjudicator was bound to apply the law as enshrined in statute and the statutory regulations. There is no ambiguity in the statute; the words are clear. Whatever the guidance issued by the department to its officers and whatever the generous interpretation given to that guidance by the Tribunal, it is absolutely plain that the Tribunal is expressly authorised to consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence arising after the date of the decision. Nothing restricts the operation of Section 85(4) to appeals in asylum cases.[15]The Tribunal rightly pointed out the absurdity if Mr Ehiribe’s argument prevailed. Paragraph 298 is directed at dependent children. On his analysis a tribunal faced with an applicant who by the time of the appeal was married, with children of their own and living an independent life, would have to ignore reality and treat the appellant as if he or she was leading the life of a dependent child. That cannot have been and, in my view, was not Parliament’s intention. The age, growing maturity and independence of an applicant must be relevant to the substance of a decision concerned with “serious and compelling reasons” as to whether the applicant should be allowed to stay as a dependent relative, which this case is. I fail to see, therefore, how the Adjudicator could have made a determination without considering all that had happened since the application had been made.[16]In any event if the Tribunal’s interpretation of the instructions to immigration officers is correct, about which I have my doubts, it is also clear on my reading of the Adjudicator’s determination that she did not rely solely upon the age of two of the appellants by the time the matter reached her. She relied upon a number of factors. She took into account all the circumstances. These appellants were all born and brought up in Nigeria. They had a mother there with whom they have lived all their lives until relatively recently. The Adjudicator found, as she was entitled to find, that the mother is willing to offer them a home there. At the time of the appeal two of the appellants were over eighteen and one over the age of sixteen. If they did not want to live in Nigeria with their mother, the Adjudicator found they have another option. The first appellant could become the head of the household or that they can make a proper application to move to this country from Nigeria with the assistance of their sponsors.[17]It follows from those observations that, for my part, I would therefore agree with the Asylum and Immigration Tribunal’s conclusion that there was here no error of law in the Adjudicator’s taking into account the fact that two of the appellants had reached the age of eighteen by the time of her determination or in her emphasising the point in the way in which she did. I am mindful of the basis of Latham LJ’s decision to grant permission to appeal on this ground. He was concerned about the effect of delay which is not attributable to the appellants where the passage of time turns out to be crucial. I readily accept that tribunals will give anxious scrutiny to the passage of time between an application made by a child and an adjudication; if for no other reason than what has happened in the course of that delay may well be relevant for any Article 8 claim. But, Mr Ehiribe was not able to point to an administrative delay of any great significance in this case for which the respondent Secretary of State could be held responsible. There was only a matter of approximately six months between application and the decision. For an important decision of this kind, affecting the lives of three young people, that cannot be described in my view as an excessive delay; certainly not a delay of the kind referred to in the decisions put before us by Mr Ehiribe.With respect to him, in my view this appeal was an attempt to appeal the findings of fact made on the evidence by the Adjudicator dressed up as an appeal on the law.[18]As far as the second ground of appeal is concerned I have my doubts as to whether Latham LJ did intend to grant permission to appeal upon it. In my view it is unarguable. I would refuse the application for permission or, if it is an appeal, dismiss the appeal on this ground, too. Mr Ehiribe was seeking to overturn the Adjudicator’s and the Tribunal’s finding on the facts that this is not an exceptional case within the Huang category. As Mr Sheldon observed in his written submissions, this is essentially a perversity challenge. All of the matters relied upon by Mr Ehiribe in support of this submission were expressly referred to by the Adjudicator in her determination. In her judgment, just as they did not amount to serious and compelling reasons why the appellants should not be excluded from this country, similarly they did not amount to exceptional circumstances justifying their staying here.[19]Again, I agree with the Tribunal that much as one may sympathise with the appellants for what they have suffered over the years, the decision was one which was entirely open to the Adjudicator on the evidence and in accordance with the law as it stood at the time of her decision. In my view it is a decision which remained open to the Tribunal following the refinement of the test in Huang.[20]Therefore, I am driven to the conclusion that this appeal should be dismissed.

LORD JUSTICE WALL: I agree. For all the reasons given by my Lady, Lady Justice Hallett, I too agree that the appeal should be dismissed.

Order

Appeal dismissed.

Cited in 2 later judgments