MJ (Nigeria) v Secretary of State for the Home Department [2015] EWCA Civ 728

[2015] EWCA Civ 728Case No C5/2014/2181
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Venue Royal Courts of JusticeDate Thursday, 14 May 2015
Between
MJ (NIGERIA)Appellant
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE AIKENS
v
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentDAR Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)Ms C Hulse (instructed by Salam & Co) appeared for AppellantMr D Pievsky (instructed by GLD) appeared for RespondentJ U D G M E N T

LORD JUSTICE AIKENS:

[1]This is a renewed application for permission to appeal where, if the application were granted, it would be a second appeal.[2]There are two Applicants. The First Applicant is a woman who was born in Nigeria on 28 May 1983. She entered the United Kingdom unlawfully on 22 July 2005. She was subsequently sentenced to 12 months' imprisonment for the offences of using a false instrument, namely a forged passport, and for deception. She had been apprehended at Heathrow Airport whilst trying to board a plane for Canada using a forged travel document. The trial judge made a recommendation for deportation.[3]The First Applicant was released from prison at the end of 2005 and she claimed asylum. That was refused and there was an appeal hearing before Immigration Judge Miles. In a determination dated 11 April 2006, the judge dismissed the appeal, finding that the First Applicant's factual account was not reasonably likely to be true.[4]The First Applicant sought reconsideration of that determination but her appeal was dismissed on 28 February 2007 by the Asylum and Immigration Tribunal. In its decision dated 28 February 2007, the IAT concluded that:
"The Appellant's claim is a farrago of lies and she is devoid of credibility. She is an economic or at least or an educational refugee."
[5]The Secretary of State made a deportation order, but the First Applicant was not deported. Instead, she absconded. Meanwhile, the First Applicant had a son who is now nearly 10 years old. The son was born in the United Kingdom, has lived in the United Kingdom throughout his short life and has been educated here.[6]In May 2011, the First Applicant applied for leave to remain in the UK relying on her Article 8 rights and those of her son. This application was treated as an application to revoke the deportation order. It was rejected on 24 April 2013. There was then an appeal to the First-Tier Tribunal and the appeal was dismissed in a decision given on 8 July 2013.[7]The First-Tier Tribunal found as fact that there was effectively "no private life" of the First Applicant and that her family life revolved around her son. The FTT examined section 55 of the Borders Act (as it called it for short), and came to conclusions about the interests of the child.[8]In formulating its conclusions at paragraph 33, the First-Tier Tribunal concluded that it was in the best interests of the child to stay with the child's mother who should be removed to Nigeria. It also found:
"Secondly, they [that is the best interests and welfare of the child] are to provide the child with the potential opportunity of knowing members of an extended family. Whether the Appellant has family in Nigeria is difficult to say because she has been found to be entirely without credibility in the past. However, it is clear that she has no family in the UK. Therefore, if the Second Appellant is to enjoy knowledge of or benefit from any extended family members, it is far more likely to be in Nigeria than by remaining in the UK. Thirdly, the Second Appellant is entitled to grow up within his own country and to experience and enjoy the culture, customs, religion and background of his own country rather than an alien country. There is no reason to suppose he cannot gain a good education in Nigeria and what he makes of that education is a matter of his own character..."
[9]There are some somewhat extraordinary statements in the passage I have quoted. To suggest that for the son, the Second Applicant, the United Kingdom is "an alien country" seems bizarre when he has lived nowhere else. To talk about the culture, customs and religions of "his own country", meaning Nigeria, again seems bizarre when this child has never been there, nor does he know anything of it at first hand and only what his mother might have told him about it.[10]There was, I have been told, no evidence either way before the FTT on the question of family members in Nigeria, nor was there any evidence about what kind of education he may have had so that any comment that the First-tier Tribunal made in those respects is purely speculation.[11]The matter then went to the Upper Tribunal. The Upper Tribunal concluded that the First-Tier Tribunal had made some errors of law and it dealt with those correctly. However, on the Article 8 issue it concluded that the First-Tier Tribunal was right as to both the First Applicant and the Second Applicant, the son.[12]There is a passing reference to the important decision of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, although not on an issue which is central to the present consideration.[13]The Upper Tribunal effectively accepted the analysis of the First-Tier Tribunal, (in its paragraph 33), to which I have already referred.[14]The question for me is whether or not this case is one where there is an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it. In my judgment, the first test is not satisfied. But I have come to the conclusion that in this case there is a compelling reason for the Court of Appeal to hear it.[15]My reasons, very shortly, are these: first, the original ground on which this application for permission to appeal was made was that the courts had not properly taken account of the trafficking background. That has now been fully investigated by the Secretary of State. It is clear from the extremely helpful skeleton argument of Mr David Pievsky, who appears on behalf of the Secretary of State this morning, that there is nothing in the concerns that I had raised when I dealt with this matter on paper.[16]Secondly, the only issue this morning is therefore Article 8. My concern arises from the way that the First-Tier Tribunal and the Upper Tribunal have approached the case of the First Applicant and then the Second Applicant in consequence.[17]It is clear that the First Applicant has no independent "private life" in the United Kingdom. The only issue is family life. The First Applicant has a son who is now nearly 10 years old, who has lived the entirety of his life in the United Kingdom and knows no other culture, et cetera, at least not at first hand. In those circumstances, it is now abundantly clear from the Supreme Court's decision in H(H) v Deputy Prosecutor of the Italian Republic, Genoa & Ors [2013] 1 AC 338 that in cases involving either extradition or expulsion by deportation, there is a balance that the court has to strike.[18]On the one side, there is the very weighty consideration of the need to control immigration and to deal with non-UK citizens who have committed offences and who are therefore liable to be deported. That is the position of the First Applicant. On the other side of the balance, however, are the Convention rights and, in particular, Article 8. Here the position is that there is a young son of the First Applicant who has known nothing other than this country. H(H) makes it clear that on this side of the balance, the interests of the child have to be a "primary consideration".[19]My concern is that the Upper Tribunal and indeed the FTT do not appear to have approached the Article 8 issue on that side of the balance with that particular focus in mind. This has led to a consequence, it would appear, that they have concluded that the First Applicant should be deported and then it is in the best interests of the child to follow his mother, so that, therefore, the Second Applicant should leave the United Kingdom with her because it is not only in his best interests to do so, but it is also reasonable for that to take place.[20]The "compelling reason", therefore, to my mind is that this is a case where I am not convinced that the correct legal approach has been adopted by the two lower tribunals. Because the consequences for the Second Applicant in particular, but also for the First Applicant, are so serious this makes it a case where there is a "compelling reason" for the Court of Appeal to hear it.[21]Accordingly, I will grant permission.