CO (Nigeria) v Secretary of State for the Home Department [2008] EWCA Civ 1174

Case No C5/2008/1701[2008] EWCA Civ 1174
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: IA/16825/2007]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 7 th October 2008
Before
LORD JUSTICE GOLDRING
Between
CO (NIGERIA)AppellantTHE SECRETARY OF STATERespondentFOR 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 J Adler (instructed by Ikie Solicitors) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is a renewed application, albeit on a more limited basis, for permission to appeal a decision of the Asylum and Immigration Tribunal promulgated on 30 May 2008, Richards LJ having refused permission on paper.

The background to the application

[2]The applicant comes from Nigeria. He was born in February 1981. He first entered the United Kingdom on a false passport on 19 January 2003. He was refused leave to enter. He absconded before he could be removed on 20 January 2003. His claim for asylum was formally refused on 29 January 2003. There was a dispute as to whether, using another false name, he sought to re-enter on 21 March 2005, being removed for a second time on 22 May 2005. He claims he was in the United Kingdom until March 2007 when he left for Nigeria. On any view, on 8 April 2007, using what was said to be a variation of the false name previously used on 21 March 2005, he sought to re-enter. He was arrested and charged with using a false instrument. On 27 April 2007, having pleaded guilty, he was sentenced to 12 months’ imprisonment at Lewes Crown Court; no recommendation for deportation was made.[3]The sole issue in this proposed appeal revolves around a child called J who was born on 8 August 2008 and of whom the applicant is said to be the father. It is said that the applicant has a family life with his son; that his deportation would engage Article 8 of the European Convention; and that no consideration has been given to what was said by the House of Lords in two recent cases, Beoku-Betts v SSHD [2008] 3 WLR 166 and Chickwamba v SSHD [2008] 3 WLR 1420.[4]As to Article 8, giving the reasons for her decision to deport, the Secretary of State said that it would not be disproportionate to any Article 8 rights that the applicant might have. She said that although he claimed in the criminal proceedings to have a child, nothing was known as to the circumstances to outweigh the public interest in preventing crime.[5]On 10 February 2007 the applicant’s appeal of the Secretary of State’s decision was heard by the Asylum and Immigration Tribunal, the first panel. Its essential basis was that to deport the applicant would amount to a breach of his Article 8 rights. He said he was living in the United Kingdom between January 2003 and March 2007. He didn’t report in respect of his asylum claim because he didn’t know what to do. He had had a relationship with a woman in Manchester, J having been born in August 2005. The absence of his name on J’s birth certificate was explained by the fact he was no longer around Manchester. He was not around Manchester at the relevant time. He had never lived with J’s mother.[6]The mother gave evidence. She said that the applicant was the father. He saw the child most weekends, she said. She didn’t know where he worked. He hadn’t provided financial support. He sometimes gave her odd amounts of money.[7]In a determination promulgated on 13 February 2007 and, as relevant to the application as it at present is, the Tribunal decided firstly that the applicant had been convicted of a serious crime. Secondly, it said this:
“26. The appellant says in effect that he cannot bear to be parted from the child. We attach no weight to the appellants claim. It is evident from what his former partner says that he has had little involvement in the child’s life to date and we doubt very much that would change were the appellant to remain in the United Kingdom. The child was present throughout most of the hearing. We observed that at no time did the child seek out or engage with the appellant. The appellant claims to have been in Manchester at the time the child’s birth was registered although he said he was present at the child’s birth. However he was not sure whether he was in Manchester in 2005 or 2006. He says he was not around and told the mother to register the birth, while she said the relationship had ended and she never told him that she was going to register. The child does not bear his name and no explanation has been given for why nearly 3 years later and a claimed reconciliation the fathers name has not been added to the birth certificate. 27. Whilst we understand the mother’s motives, it is evident that she merely has the hope the appellant will provide financial and emotional support to the child. We are less optimistic. We question what “direction and guidance” he will set with his history of deception and lies. We find that the appellant has failed to satisfy us that on the balance of probabilities he is the father of this child. However even if he is, there is no evidence of him being a presence in the child life. We do not accept he was continuously in the United Kingdom between 2003 and 2007. Even his former partner could not say where he was in 2005. Whilst he may have been around when the child was first born and photographs suggests it’s first birthday, the evidence is that he has been able to obtain false passports with ease and has used false identities. We are not satisfied he was not able to make other entries and exits without detection. 28. The appellant has never lived with the child and its mother and there is no present intention to do so. He has never supported the child financially. It is said that this is because he did not work yet he was able to find money to buy false passports and to travel. We find that the appellant failed to establish that on the balance of probabilities he has established family life in the United Kingdom.”
[8]The applicant successfully sought reconsideration. As relevant to the present application, the grounds were:(1) Too high a standard of proof was applied in determining the existence of a family life between father and son. It should not have been decided that he was probably not the father, the mother having said that he was. Article 8 did not require he lived with the mother and child;(2) Had the error about the family life not occurred, the proportionality of the removal decision would have had to be considered, which it was not.[9]Senior Immigration Judge Nichols heard the appeal. His decision was promulgated on 30 May 2008. As to Article 8, he said this at paragraph 23:
“The Tribunal had evidence before it that the appellant had not been registered as the father of the child. For the reasons they gave they concluded that he had not played a significant role in the child’s life and that there did not appear to be a strong bond between them and the child for the reasons they set out in paragraph 26. In this regard they considered the alternative i.e. if the appellant was indeed the child’s father, and gave careful consideration to what evidence there was that there was an established family life between the appellant and his child. They noted he had never lived with the child and his mother and that there was no intention to do so. They questioned the mother’s evidence that the appellant wished to provide financial and emotional support to his son in the future. Although the mother had given evidence that the appellant had provided monies in the past, albeit that he was not employed, the Tribunal found at paragraph 28 that he had never supported the child financially.”
He concluded by saying:
“I consider the Tribunal has given adequate, proper and intelligible reasons why it concluded that the appellant had not established an existent family life with his child and the mother of his child, sufficient to engage Article 8, so that the answer to question 1 of the five questions posed in Razgar, i.e. “Will the proposed removal be interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life? was clearly in the negative.” was clearly in the negative.”
[10]Mr Adler, in succinct and realistic submissions, effectively makes two points. First, he criticises the original panel’s finding that they were not satisfied that the applicant was the father. Such a finding was not, he submits, reasonably open to them, for several reasons. First, there were photographs of the applicant being present at the birth and at the first birthday of J. Second, the mother’s evidence, unchallenged, was that he saw J most weekends. Third, he had provided some “small” amounts of money. Fourth, she said J was asking after the applicant because he was the father. Fifth, she said the applicant had sought parental responsibility. And sixth, too much weight was attached to the absence of the applicant’s name on the birth certificate.[11]Mr Adler secondly submits that, once paternity is accepted, Article 8 must be considered. In the light of the features above it was perverse for the panel to find that there was no evidence of him being a presence in J’s life. He submits the threshold was low. There was too much weight based on non-cohabitation. He submits, moreover, that, once Article 8 was engaged, the authorities to which I have referred should have been considered, and in Beoku-Betts it was said that proportionality of the impact of removal must be considered by reference to each family member and that, as Chickwamba emphasised, submits Mr Adler, involves consideration of J’s right to a family life with his father. Mr Adler emphasises that “most exceptional compassionate circumstances” apart, the applicant would not be able to return to this country for ten years in order to see J. That was something which should have been considered.[12]It is unnecessary for me to consider in detail as to whether or not the original panel was entitled to conclude that the applicant was not J’s father. It is quite clear from everything they said that they did not believe anything that the applicant said, his history of lies and deceit being self-evident. I shall, however, concentrate on the second point made by Mr Adler, for it seems to me that even if the panel was not entitled to conclude that the applicant was not the father, it was entitled to conclude that he was not a “presence” in J’s life: he did not live with the mother; there was no intention that he should; they found that he was not in the United Kingdom between 2003 and 2007 continuously; the mother could not even say where he was; he provided no proper financial support. The original panel was, in my view, entitled to conclude that he was, in those circumstances, not a presence.[13]Whether or not there was sufficient to engage Article 8, it is absolutely clear to me, on the present facts, that the proposed deportation would, unarguably, be proportionate. In those circumstances, without having to decide every submission made by Mr Adler on this applicant’s behalf, my clear view is that the senior immigration judge was right in his reconsideration and that the prospective appeal has no prospect of success.[14]The renewed application for permission is therefore refused.

Order

Application refused