Nigerian woman granted permission to appeal in ‘family life’ claim to remain in UK 



Lord Mulholland
Lord Mulholland

A Nigerian national who lodged a human right claim to remain in the UK with members of her extended family has successfully challenged a decision to refuse her application to appeal.

The First-tier Tribunal (Immigration and Asylum Chamber) rejected the petitioner’s claim that she had developed a “parental relationship” with her nephews, following which the Upper Tribunal refused permission to appeal, but a judge in the Court of Session ruled that there had been a “material error of law”.

‘Human rights claim’

Lord Mulholland heard that the petitioner Mary Enaburekhan, 36, came to the UK in 2007 on a two-year student visa, which was granted for her to study at Aberdeen University.

After attempts to extend her stay beyond that period were rejected, in 2013 she lodged a human rights application for leave to remain under article 8 of the European Convention of Human Rights on the basis of her “family life” with her mother and brother’s family.

But her claim was refused and certified as “clearly unfounded” in terms of section 94(2) of the Nationality, Immigration and Asylum Act 2002. 

A judicial review challenging that decision found in the petitioner’s favour, but following reconsideration of her case the respondent Home Secretary refused the petitioner’s human rights application as she did not meet the eligibility criteria in relation to her claimed family life in the UK, had not established a family life in terms of article 8, and did not qualify under the Immigration Rules.

The respondent found that it would not be unreasonable to expect her to return to Nigeria and that the existence of her private life in the UK was not sufficiently compelling to be classed as an exception to the normal practice of removal. 

It was accepted that the petitioner had extended family ties in the UK, but this did not meet the definition of family life under the Immigration Rules for the purposes of article 8.

‘Fanciful argument’

The petitioner was allowed an in-country appeal to the First-tier Tribunal, but the tribunal found that petitioner’s relationship with her mother and brother were “no more than normal emotional ties”, despite the fact she lived with her brother and helped to care for her nephews. 

The tribunal refused her claim within the Immigration Rules, and the judge considered that there was “no good arguable” case for consideration outwith the rules.

The tribunal found that her family life with her brother had been established while she had no legal right to be here and although the petitioner stayed with her brother and he financed her, if she was granted leave to remain in the UK she could well move out of her brother’s house. 

She sought permission to appeal to the Upper Tribunal, but her application was refused on the basis that the asserted existence of a “de fact parental relationship” had been considered “little short of fanciful”, following which she raised judicial review proceedings.

It was argued that the tribunal “erred in law” in holding that the petitioner’s parental relationship with her nephews was little short of fanciful and that it failed to have regard to section 117B(6) of the Nationality, Immigration and Asylum Act 2002, which sets out the public interest considerations applicable to article 8 cases.

In support of the petitioner’s case, counsel cited the case of MSA v Advocate General for Scotland 2018 SLT 1313, in which a grandmother from St Lucia whose application for leave to remain in the UK on the basis of her article 8 private and family life was dismissed as “clearly undoubted” successfully challenged the certification, on the basis that the Home Secretary failed to take into account her role as primary career for her grandson and the “best interests” of the grandchild.

‘De facto parental relationship’

The judge reduced the decision of the Upper Tribunal to refuse leave to appeal against the decision of the First-tier Tribunal after ruling that there was “merit” in the petitioner’s claim.

In a written opinion, Lord Mulholland said: “I was particularly struck by the similarity of the facts in the present case to the facts in MSA. Although the issue for the court (certification) was different from the issue in this petition, the court in reaching its decision looked at the issue of parental responsibility on a similar set of facts to the facts in the present case and rejected the respondent’s argument that she did not have parental responsibility for the child as inaccurate and misleading. 

“With regard to whether or not there is a good arguable case that the petitioner had a genuine and subsisting parental relationship with her nephews, I note that section 117(B)(6) of the Nationality, Immigration and Asylum Act 2002 provides that in relation to an article 8 claim, the public interest will not require a person’s removal where the person has a genuine and subsisting parental relationship with a qualifying child and it would not be reasonable to expect the child to leave the UK. 

“It seems to me that it can be argued with a good prospect of success that the petitioner has stepped into the shoes of the children’s parents in looking after the children. The best interests of the children would also be a primary consideration when deciding the issue. 

“There are of course contrary arguments which can be deployed and facts which could be cited in support of the contrary arguments. It is not my role to decide the issue. 

“My role is to determine whether the Upper Tribunal erred in law in refusing leave to appeal on this ground. Given the cases I have referred to above, and for the reasons I have set out, I am of the view that to conclude that the asserted existence of a de facto parental relationship was little short of fanciful is an error in law. 

“With regard to the issue of materiality, this is clearly a material error in law as there is a real possibility that the determination of the Upper Tribunal might be different if an appeal on this ground is heard. The ground of appeal is not without merit and may succeed. That will be for the Upper Tribunal.”

© Scottish Legal News Ltd 2020



Other judgments by Lord Mulholland