MARY ITOHAN ENABUREKHAN AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT [2020] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MARY ITOHAN ENABUREKHAN AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT [2020] ScotCS CSOH_18 (10 February 2020) URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_18.html Cite as: 2020 GWD 6-84, [2020] CSOH 18, [2020] ScotCS CSOH_18

[1] This is a judicial review of a decision of the Upper Tribunal (Immigration and

Asylum Chamber) dated 3 March 2016 refusing permission to appeal to itself.

[2] The petitioner is a Nigerian national. She was born on 3 June 1983. Her immigration

history as set out in the petition is that she came to the UK on 10 October 2007 on a student

visa. This visa was valid until 31 October 2009. The visa was granted for the petitioner to

study at Aberdeen University. She applied for further leave to remain as a student on

29 October 2009. This was refused on 17 November 2009 as her application form was

incomplete. A further application was lodged on 14 December 2009. This application was

refused on 25 February 2010 with no right of appeal. On 22 October 2010 an application for

leave to remain as a tier one highly skilled migrant post study was submitted. This was

refused on 10 December 2010 with no right of appeal. On 1 March 2012 the petitioner

lodged an application for an European Economic Area (EEA) residence card. On 26 March

2012 her application was rejected as no details of her EEA sponsor were provided. A further

application for an EEA resident’s card was lodged on 26 April 2012. This was refused on

2 October 2012 with no right of appeal. The petitioner was then encountered by

immigration officers on 25 February 2013. She was issued with an IS115A notice of removal.

On 26 February 2013 she was served with removal directions to Nigeria. On 28 February

2013 she submitted further representations for an EEA residence card. This was refused on

7 March 2013 with a right of appeal. She was granted temporary admission on 18 March

2013. She required to report weekly. On 22 May 2013 she lodged a human rights

application for leave to remain under article 8 of the European Convention of Human

Rights. This was refused without a right of appeal on 14 June 2013. She was detained on

16 December 2013. On 19 December 2013 she lodged a statement of additional grounds.

Bail was granted on 20 December 2013. On 25 June 2014 a decision was made to refuse and

certify the petitioner’s human rights claim as clearly unfounded in terms of section 94(2) of

the Nationality, Immigration and Asylum Act 2002. On 24 March 2014 she raised a judicial

review challenging the decision to certify the human rights claim as clearly unfounded. On

9 October 2014 the judicial review was concluded and the certification was withdrawn so

that reconsideration could be given to the petitioner’s case. On 23 October 2014 the

respondent refused the petitioner’s human rights claim as she did not meet the eligibility

criteria in relation to her claimed family life in the UK, that she had not established a family

life in terms of article 8 and did not qualify under the immigration rules. It was found that

there were no significant obstacles preventing her re-integration into Nigerian society and as

a result paragraph 276ADE(VI) of the rules were not satisfied. 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. With regard to exceptional circumstances, the respondent

accepted that the petitioner had extended family ties in the UK but found that this did not

meet the definition of family life under the Immigration Rules for the purposes of article 8.

The petitioner’s relationship with her brother and mother and other extended family

members were considered but it was found that she had nothing more than normal

emotional ties. The dependency threshold had not been met. She was, however, allowed an

in-country appeal to the First-tier Tribunal and the petitioner appealed to the First-tier

Tribunal against the respondent’s decision of 23 October 2014 refusing her application for

leave to remain in the UK. On 22 September 2015 the First-tier Tribunal refused the

petitioner’s appeal. The judgement is 6/5 of the inventory of productions.

[3] As stated above, the First-tier Tribunal refused the petitioner’s appeal. In the

judgement the Tribunal found that there were no more than normal emotional ties between

the petitioner and her brother’s family (see paragraphs 61 and 65). The Tribunal noted that

the petitioner helped to care for her nephews. If she returned to Nigeria her nephews’

parents would still look after them. She did not have a particularly close relationship with

her mother which was described as a relationship between a mother and adult child. Her

mother’s status in the UK was not settled and she may have to return to Nigeria

(paragraph 61). At paragraph 63 the Tribunal noted that the petitioner stated that she had a

partner but that relationship started only a few months ago when her immigration status

was precarious. According to the partner, whose life in the UK was also described as

precarious, he intended making the petitioner his wife although there was no evidence of

this apart from the evidence of the petitioner’s partner. He was reticent about what he

would do if the petitioner returned to Nigeria. It was clear to the Tribunal judge that he

would not go with her and seemed unprepared to return with her to marry her to enable her

to make a spousal application to return to the UK. The Tribunal judge concluded that little

weight could be given to this relationship (paragraph 70). The Tribunal refused her claim

within the rules (paragraph 62). The Tribunal then considered her claim outside the rules.

The Tribunal judge considered that there was no good arguable case for consideration

outside the immigration rules (paragraph 69). He concluded that the petitioner had been

abusing the immigration system in the UK since 2009. Her life with her brother had been

established while she had no legal right to be here. 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. The petitioner originally stated that she wanted to make

use of her engineering degree but now stated that if she remained she may set up a

childminding business with a friend. The petitioner came to the UK using deception and

[4] The petitioner made an application to the First-tier Tribunal to grant permission to

appeal to the Upper Tribunal. The first ground averred that the First-tier Tribunal judge

erred in finding that the petitioner used deception to enter the UK as a student. The second

ground challenged the judge's finding that the petitioner was responsible for the content of

an earlier application which stated that she had family in Nigeria, contradicting her

submission in the appeal to the First-tier Tribunal judge. The third ground challenged the

judge's conclusions on article 8, that the best interests of the petitioner's nephews did not

require her presence in the UK. The First-tier Tribunal refused permission to appeal on

9 February 2016 (6/7 of the inventory of productions). Permission was refused on the basis

that the First-tier Tribunal judge was entitled to conclude that the petitioner on arrival had

no intention of leaving the UK and thus seeking admission on a temporary basis must

necessarily have involved deception. With regard to the second ground, this was a

conclusion properly open to the judge who was not required to accept every explanation

offered by the petitioner. With regard to the third ground, this was a conclusion open to the

judge, particularly as the children lived with their parents. The grounds were in reality no

more than a disagreement with the experienced judge's detailed and thorough assessment of

[5] The petitioner thereafter sought permission to appeal directly from the Upper

Tribunal. The grounds of appeal (6/8 of the inventory of productions) were that the First-tier

Tribunal erred in holding that something more than the establishment of normal emotional

ties was required to be demonstrated for a successful article 8 claim. It was averred that the

Tribunal in reaching its decision made an error of fact in not appreciating that the petitioner

lived with her brother, his wife and their children (ground 1). Ground 2 averred that the

Tribunal erred in law in assessing section 117B(6) of the Nationality, Immigration and

Asylum Act 2002 by failing to determine whether the petitioner was in a de facto parental

relationship with her nephews and whether it was reasonable for them to leave the UK. The

third ground averred that the First-tier Tribunal erred in law when finding that there was

not a good arguable case thereby imposing another separate hurdle to be overcome by the

petitioner. The fourth ground averred that the First-tier Tribunal erred in law in speculating

that if granted leave to remain the petitioner could well move out of her brother’s house and

claim benefits, there being no evidence to support such a finding. The Tribunal failed to

take account of relevant factors when assessing the article 8 claim, the relevant factors being

that she spoke English, was not a burden on the taxpayer, had no other family life in Nigeria

and family life could not be continued by electronic communication or occasional visits.

[6] On 3 March 2016 the Upper Tribunal refused permission to appeal (6/9 of the

inventory of productions). It is this decision which is the subject of this review. Permission

to appeal was refused for the following reasons (for appellant read petitioner):

“The appellant, who is a citizen of Nigeria, arrived in the UK in October 2007 and

was admitted as a student with leave to remain until 31 October 2009. She has made

unsuccessful applications for further leave as a student and for post study work and

twice in 2012 applied unsuccessfully for a residence card as the family member of an

EEA national present in the UK exercising Treaty rights. Despite that, she simply

continued to remain in the UK without leave and on 14 June 2013 a human rights

claim was refused. Having been detained on 16 December 2013 for the purpose of

removal she made further submissions and sought permission to bring a judicial

review of the certification of her human rights claim as being clearly unfounded.

Those proceedings were settled on terms that generated the refusal of her human

The application was refused by the respondent because it was not accepted that the

appellant met the requirements of the rules in respect of her family and private life

and because the respondent saw no reason why leave should be granted outside the

The judge dismissed the appeal, finding as a fact that the appellant had no intention

of leaving the UK on completion of her studies and that the relationships she had

built with family members and a partner in the UK did not amount to protected

family life for the purposes of article 8. The judge explained why the best interests of

children in the extended family did not require that the appellant remain. In striking

a balance between the competing interests in play, the judge explained why removal

of the appellant would not bring about a disproportionate interference with any

The grounds express disagreement with those clear and carefully reasoned findings

but come nowhere even close to identifying any arguable error of law. The asserted

existence of a de facto parental relationship is little short of fanciful. The judge did

not impose an inappropriate threshold test, as alleged by the grounds. She simply

recognised that the consideration of the claim under the rules constituted a

comprehensive assessment of the claim so that little more needed to be said when

examining whether a sound claim had been made for a grant of leave outside the

rules. The judge was not engaging in impermissible speculation when considering

the possibility of a future recourse to public funds and the factors that the grounds

assert were left out of account were not such as to demand specific or separate

analysis as they were not capable, in themselves or cumulatively, of being material to

[7] At the continued hearing the petitioner’s counsel confirmed that he was not insisting

on the first ground of review (paragraph 10i of the petition as detailed in paragraphs 20-23

of the revised note of argument). Three grounds of review remained. These were that the

First-tier Tribunal erred in law in holding that the petitioner’s asserted de facto parental

relationship with her nephews was little short of fanciful, the First-tier Tribunal had not

given any, or failed to give adequate reasons for coming to this finding and the First-tier

Tribunal failed to make any findings in relation to section 117B(6) of the Nationality,

Immigration and Asylum Act 2002 (ground of review 10(ii) of the petition); that the Upper

Tribunal misdirected itself in holding that the First-tier Tribunal did not apply an

inappropriate threshold test of a good arguable case for considering article 8 of the

European Convention of Human Rights outside the immigration rules (ground of

review 10(iii) of the petition); and that the Upper Tribunal erred when finding that the First-

tier Tribunal did not engage in impermissible speculation, there being no or insufficient

evidence to support the First-tier Tribunal’s findings and further erred in law in finding that

the First-tier Tribunal did not speculate on the petitioner’s employment prospects and where

[8] Two preliminary matters were raised at the first hearing of the petition (the hearing

was continued to await the outcome of the UK Supreme Court decision in MA (Pakistan) v

Secretary of State for the Home Department on how section 117B(6) should be interpreted). The

first concerned whether the EBA criteria (second appeals test) was still under review and a

live issue at the substantive hearing. I noted at the continued hearing that this was no

longer a live issue standing the decision in SA v Secretary of State for the Home Department

2019 SC 451 which held that the decision on whether the second appeals test had been met

was to be taken as a preliminary matter at the stage of determining whether permission

should be granted and could not be re-raised at a later stage (paragraphs 26–28 of the

[9] The second preliminary point concerned adjustments intimated on 18 August 2016 to

statements 10(i) and (iv) of the petition. The respondent submitted that permission to

proceed had not been granted for these grounds and as a result unless permission was

granted they could not be argued as they were out of time in terms of section 27B(1) of the

Court of Session Act 1988. I allowed the amendments on the basis that the adjustments were

responses to the respondent’s answers and did not, when the petition and answers were

considered as a whole, introduce two new grounds of review. In any event if the

adjustments introduced new grounds of review, I would have allowed them on the interests

of justice as they were introduced in the early course of proceedings and prior to parties

lodging notes of argument. I could identify no real prejudice to the respondent and I noted

that in any event they were answered in the respondent’s note of argument.

[10] The First-tier Tribunal failed to have regard to section 117(B)(6) of the Nationality,

Immigration and Asylum Act 2002 when deciding the article 8 claim. Although the

petitioner’s legal representative did not make specific submissions on section 117(B)(6) of the

Nationality, Immigration and Asylum Act 2002 the issue was “Robinson obvious”. The

First-tier Tribunal had sufficient material before it to deal with the point and the contents of

the material before it and findings in fact made in respect thereof would place it on notice

that it was an obvious issue. The First-tier Tribunal is under a duty to make an assessment

of section 117B(6) of the Nationality, Immigration and Asylum Act 2002. The point was

explicitly before the Upper Tribunal who erred in law in concluding that the asserted

existence of a de facto parental relationship was little short of fanciful. On the material before

the First-tier Tribunal this point was arguable and the Upper Tribunal was in error in

concluding that it was not. Had the First-tier Tribunal had regard to this provision, it would

have been bound to hold that the petitioner had a genuine and subsisting parental

relationship with her nephews and as a result the Upper Tribunal should have granted

permission to appeal on this point. In determining this issue, it is not necessary in law for an

individual to have parental responsibility for there to exist a parental relationship. Whether

there is a parental relationship depends on the individual’s circumstances and whether the

individual has stepped into the shoes of a parent. It is possible for more than two

individuals to have a parental relationship with a child. The evidence (including the

material presented to the First-tier Tribunal and the relevant findings in facts) demonstrated

that the petitioner had a parental relationship. The reasons given for refusing to grant

permission on this point were inadequate. With regard to grounds of review iii and iv, these

grounds if established support the principal ground of review ii. With regard to ground of

review iii, the Upper Tribunal erred in law when finding that the First-tier Tribunal did not

impose an inappropriate threshold test but simply recognised that the consideration of the

claim under the immigration rules constituted a comprehensive assessment of the claim so

that little more needed to be said when examining whether a sound claim had been made

for a grant of leave outside the immigration rules. With regard to ground of review iv, the

Upper Tribunal erred in law by misdirecting itself when finding that the First-tier Tribunal

did not engage in impermissible speculation. There was no, or insufficient, evidence to

support the First-tier Tribunal’s findings that if the petitioner was granted leave to remain in

the UK she could well move out of her brother’s house and claim benefits. In assessing

proportionality, the First-tier Tribunal failed to take account of matters which were material

to this assessment, namely that the petitioner speaks English, she is not a burden on the

taxpayer, has no other family remaining in Nigeria and family life could not be continued

[11] With regard to ground of review ii, the First-tier Tribunal had no requirement to

consider the petitioner’s article 8 claim in terms of section 117(B)(6) of the Nationality,

Immigration and Asylum Act 2002 as it was not pled before it and this point would not have

been “Robinson obvious”. Had the Tribunal considered the claim in terms of this provision

it would have been bound to reach the same decision. Given the findings in facts made by

the First-tier Tribunal and the material before it submitted by the petitioner which bears on

this issue, any error in law was immaterial. The reasons given by the Upper Tribunal on this

point were adequate to an informed reader who would not be left in any real and substantial

doubt about the reasons for the decision of the Upper Tribunal. With regard to ground of

review iii, the Upper Tribunal did not err in law in holding that the First-tier Tribunal did

not direct itself that a good arguable case was a hurdle to overcome before it would consider

a case outside the immigration rules. In any event, had the First-tier Tribunal directed itself

in that way, given its findings that there was no good arguable case, it would not have made

findings in the petitioner’s favour on proportionality outside the immigration rules. Any

error of law would have been immaterial on the findings in fact and the material before it.

With regard to ground of review iv, the Upper Tribunal did not err in law. The parties

made submissions to the First-tier Tribunal about the likelihood of the petitioner being

financially independent if she was given leave to remain in the UK (detailed at

paragraphs 44 and 52 of its decision). The First-tier Tribunal did not find that the petitioner

would move out of her brother’s house and claim benefits, only that there was that

possibility. That finding was within the range of reasonable findings open to the First-tier

[12] It was agreed by parties that if ground of review ii (the petitioner’s article 8 claim in

terms of section 117(B)(6) of the Nationality, Immigration and Asylum Act 2002) was well

founded then that would be sufficient for the Upper Tribunal’s decision to be reduced. This

concession was well made (per the terms of section 117B(6) confirming that where the section

is met the public interest does not require the person's removal). The review does not seek

to determine whether there was a de facto parental relationship, this is a matter for the

Tribunal (HH v Secretary of State for the Home Department 2015 SC 613 per Lord Brodie

delivering the opinion of the court at paragraphs 14 and 15 summarising the respective

jurisdictions of the Upper Tribunal and this court in judicial review). The review seeks to

determine whether the Upper Tribunal erred in law in determining that it was not arguable

that there was a de facto parental relationship in the material before and findings of fact

made by the First-tier Tribunal. The Upper Tribunal concluded that the asserted existence of

a de facto parental relationship was little short of fanciful. As was made clear in the Upper

Tribunal Immigration and Asylum Chamber guidance note 2011 No 1: Permission to appeal

to UTIAC (amended September 2013 and July 2014) in dealing with applications for

permission to appeal, judges are concerned only with whether there is an arguable error of

law, not whether the error is made out (paragraphs 12 and 37). The de facto parental

relationship was not raised by the petitioner’s legal representatives before the First-tier

Tribunal. It is submitted that the point was “Robinson obvious” with a strong prospect of

success in an appeal (R v Secretary of State for the Home Department, ex parte Robinson

[1997] 3 WLR 1162 at page 945H et seq) and as a result could be considered by the Upper Tribunal

when considering whether to grant leave to appeal. It is unfortunate that the point was not

taken before the First-tier Tribunal and it could be said that if the point was “Robinson

obvious” then it would have been obvious to the petitioner’s legal representatives at the

First-tier Tribunal. That said, the petitioner should not be penalised by the failure of the

petitioner’s legal representatives to take the point and allowing the point to be taken later

avoids the risk of a breach of convention rights. However, a point can only be taken where

there is sufficient material to allow the determination of the point (Advocate General for

Scotland v Murray Group Holdings Ltd 2016 SC 201 per Lord Drummond Young delivering

the opinion of the court at paragraph 39). The First-tier Tribunal cannot re-hear the case on

this point and it should not be lost that this is an appeal against the decision of the First-tier

Tribunal. So, is there sufficient material to determine the point if leave to appeal is granted?

The petitioner’s evidence per the adoption of her statement (6/2 of the

inventory of productions) as her evidence in chief (paragraph 8 of the

judgement of the First-tier Tribunal - 6/5 of the inventory of productions).

ii. The petitioner’s evidence in cross examination (paragraph 9 et seq of the

iii. Witness statement for the petitioner’s brother Aaron Enaburekhan (6/3 of the

inventory of productions) as his evidence in chief (paragraph 8 of the

iv. The witness Aaron Enaburekhan’s evidence in cross examination

(paragraph 19 et seq of the judgement of the First-tier Tribunal).

v. Witness statement for the petitioner’s sister in law Kerry Ann Enaburekhan

(6/4 of the inventory of productions) as her evidence in chief (paragraph 25 of

vi. The witness Kerry Ann Enaburekhan’s evidence in cross examination

(paragraph 26 et seq of the judgement of the First-tier Tribunal).

vii. Witness statement for the oldest child (SOE)(6/4 of the inventory of

Of particular significance from this material to the issue of the existence of a de facto parental

a. The petitioner looked after her brother’s two children whilst he and his wife

b. During the day she looked after the youngest child as he was not yet at

nursery and she picked the oldest child up from school and during the school

She is the youngest child’s godmother and is registered as the oldest child’s

e. If she was removed from the children’s lives it would have a devastating

impact on them, particularly the older child as she had been a constant in his

life in terms of his care since he was 2 years old. She could probably say that

the older child has spent more time with her than he had with his parents.

It was not in the best interests of the children for the petitioner to be removed

as their lives and care arrangements would be disrupted and they would be

deprived of their relationship with their aunt with whom they have lived

g. Speaking to the children via skype would not compare to the personal contact

h. The petitioner has a close bond with the children. She has been in the

youngest child’s life since birth and the oldest child’s life from the age of

2 years. She has looked after them and provided them with care and for her

to be removed would affect their emotional well-being and development

The petitioner is the family’s next of kin for emergency situations and is

included in all of the family activities. The family would be de-stabilised if

The petitioner is more than just an aunt to the children. She is an integral

part of the family unit (paragraph 9 of the statement of Aaron Enaburekhan).

k. The petitioner provided full time child care and a loving, caring and

nurturing environment for her nephews (paragraph 4 of the statement of

The petitioner is nominated as the first point of contact in the case of

emergencies with the oldest child’s school (paragraph 6 of the statement of

m. The petitioner’s removal would devastate the two children. She is their daily

carer and provides them with a lot of love and nurture (paragraph 9 of the

n. The petitioner is one of the best friends of the oldest child (SOE) and loves

him and he loves her very much. He detailed how she looked after him and

the effect her removal would have on him (witness statement for the oldest

[13] Looking at this material it seems to me that there is sufficient material for the Upper

Tribunal to determine the issue in an appeal. There are witness statements, most of which

were incorporated into the evidence as evidence in chief, together with an assessment of the

evidence and Tribunal findings which could also bear on the issue. Other than a finding

that the petitioner used deception to come to the UK, there appears to be no adverse

credibility findings on the material which could bear on the de facto parental relationship

issue. With regard to whether the issue was “Robinson obvious”, I note that the First-tier

Tribunal is under a duty to make an assessment of section 117B(6) (Rhuppiah v The Secretary

of State for the Home Department [2016] 1 WLR 4203 per Sales LJ at paragraphs 50 and 51 and

AB (Jamaica) v Secretary of State for the Home Department [2019] 1 WLR 4541 per Lord Justice

Singh at paragraphs 44 and 54). Having listed the relevant material, it is clear to me that

there is an abundance of material bearing on the issue which would place the First-tier

Tribunal on notice that it required to deal with it. The fact that it was not explicitly pled is

unfortunate and I can well understand in a busy court how it could be missed in the absence

of specific submissions on it. That said, it seems to me to use the phraseology in R v

Secretary of State for the Home Department, ex parte Robinson supra, that the issue was “readily

discernible” from the material before it and as it is an obvious point of convention law

which may favour the petitioner, the petitioner should not be prevented or prejudiced from

raising it despite it not being pled before the First-tier Tribunal. I note that the Upper

Tribunal in their reasons in refusing leave to appeal did not raise the “Robinson obvious”

point which seems to me to be an implicit acceptance by the Upper Tribunal that it was a

“Robinson obvious” point. There is also force in the petitioner’s submission that the

respondent’s answers seek to introduce an issue which was not contained in the Upper

Tribunal’s decision (Absalom v Governor of Kilmarnock Prison [2010] CSOH 109 per Lord Tyre

at paragraph 14). I should add, for the sake of completeness, that I consider that

paragraph 56 of the judgement of Sales LJ in Rhuppiah supra, which was cited by the

respondent’s counsel, is not helpful in determining this issue. Paragraph 56 is dealing with

a different question of interpretation of section 117B(5), namely the weight to be given to a

private life established when a person’s immigration status was precarious and R v Secretary

of State for the Home Department, ex parte Robinson supra, was not considered. For these

reasons I conclude that the petitioner is not prevented from taking the point in an appeal, it

[14] 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. The petitioner’s nephews are qualifying children (British

citizens under the age of 18 years) and it would not be reasonable to expect them to leave the

UK given that their whole lives have been in the UK with their parents. What is meant by a

genuine and subsisting parental relationship? In the case of R (on the application of RK) v The

Secretary of State for the Home Department [2016] UKUT 00031 (IAC) (not decided until after

the decision of the First-tier Tribunal at first instance) the Upper Tribunal considered this

issue against a background of the applicant’s daughter in law suffering from serious and

progressive medical conditions. She was unable to look after her four children and the

applicant applied for leave to remain outside the rules on the basis inter alia that as carer for

the children she had a genuine and subsisting parental relationship with her grandchildren.

The Upper Tribunal rejected this ground. The relevant passages in the judgement dealing

“[40] … a ‘parental relationship’ may in certain circumstances exist between

someone who could not, in any legal sense, be seen as a parent ...

[41] ... It is recognised … that more than 2 persons may be in a ‘parental

[42] Whether a person is in a ‘parental relationship’ with a child must, necessarily,

depend on the individual circumstances. Those circumstances will include what role

they actually play in caring for and making decisions in relation to the child. That is

likely to be a most significant factor. However, it will also include whether that

relationship arises because of their legal obligations as a parent or in lieu of a parent

under a court order or other legal obligation. I accept that it is not necessary for an

individual to have ‘parental responsibility’ in law for there to exist a ‘parental

relationship,’ although whether or not that is the case will be a relevant factor. What

is important is that the individual can establish that they have taken on the role that a

[43] I agree with Mr Mandalia's formulation that, in effect, an individual must

‘step into the shoes of a parent’ in order to establish a ‘parental relationship’. If the

role they play, whether as a relative or friend of the family, is as a caring relative or

friend but not so as to take on the role of a parent then it cannot be said that they

have a ‘parental relationship’ with the child. It is perhaps obvious to state that

‘carers’ are not per se ‘parents.’ A child may have carers who do not step into the

shoes of their parents but look after the child for specific periods of time (for example

whilst the parents are at work) or even longer term (for example where the parents

are travelling abroad for a holiday or family visit). Those carers may be

professionally employed; they may be relatives; or they may be friends. In all those

cases, it may properly be said that there is an element of dependency between the

child and his or her carers. However, that alone would not, in my judgment, give

[44] If a non-biological parent (‘third party’) caring for a child claims such a

relationship, its existence will depend upon all the circumstances including whether

or not there are others (usually the biological parents) who have such a relationship

with the child also. It is unlikely, in my judgment, that a person will be able to

establish they have taken on the role of a parent when the biological parents continue

to be involved in the child's life as the child's parents as in a case such as the present

where the children and parents continue to live and function together as a family. It

will be difficult, if not impossible, to say that a third party has ‘stepped into the

The case of SR (subsisting parental relationship) [2018] UKUT 00334 (IAC) was also cited to me

as an example of a case where limited parental care (father’s three-hour contact in

fortnightly sessions) with no involvement in making important decisions in the child’s life

could still amount to a genuine and subsisting parental relationship for the purpose of

section 117B(6). In the present case it was submitted that the petitioner played a much

stronger and extensive role in the children’s lives than SR played in the life of his daughter,

yet the Upper Tribunal in SR upheld his case in terms of section 117B(6).

[15] The petitioner’s counsel also cited the case of MSA v The Advocate General for Scotland

2018 SLT 1313 in submissions. This case was decided after the Upper Tribunal had refused

leave to appeal. In this case, the court reviewed a decision of the Secretary of State for the

Home Department to refuse permission to remain (and certification as clearly unfounded)

for a grandmother on the basis of her article 8 private and family life as primary carer for her

grandson while her daughter continued in full time employment and her son-in-law served

in the armed forces. The circumstances were very similar to the circumstances in the present

case. The grandmother acted as primary carer for the child whilst his parents were working.

She enjoyed a close relationship with her daughter, son-in-law and grandson with whom

she lived with in a close family unit. She provided assistance in her grandson’s upbringing

by taking care of him while her daughter was at work and had cared for her grandson since

birth. No issue of separation of the child and his parents would arise upon removal of the

grandmother. In upholding the review, Lady Wise held that the grandmother was more

than just a close relative of the child and was one of his primary carers and the respondent’s

argument that she did not have parental responsibility for him was at best inaccurate and

misleading and failed to address the particular role played by her in the life of the child.

The child’s interests were specifically recorded as relevant to the immigration decision and

placing reliance on such a statement was an error in concluding that the petitioner’s removal

was not disproportionate on article 8 grounds (paragraph 20). Had her role as primary carer

to the child since birth been properly factored in, it might have led to a different conclusion.

[16] I was particularly struck by the similarity of the facts in the present case to the facts

in MSA, supra. 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. The court did this in respect of an article 8 claim outside the rules which was

the issue for the First-tier Tribunal. Further, I could also see the logic in counsel for the

petitioner’s argument citing SR (subsisting parental relationship), supra, that the petitioner

played a much stronger role in the children’s lives than SR played in his daughter’s life and

given the decision of the Upper Tribunal in that case there must be a good argument and

reasonable prospects for a similar result in the present case. 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 (per Lord Hodge in Zoumbas v Secretary

of State for the Home Department [2013] UKSC 74 at page 79). 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 (Tesco Stores Ltd v Dundee City Council 2012 SC UKSC 278 per

Lord Reed at paragraph 31). The ground of appeal is not without merit and may succeed.

That will be a matter for the Upper Tribunal. As was observed by Lord Eassie at

paragraphs 11 and 12, (citing Ganesabalan v Secretary of State for the Home Department

[2014] EWHC 2712 (Admin) at paragraphs 39 and 46 per Deputy High Court Judge

Michael Fordham QC), when delivering the opinion of the court in Khan v Secretary of State

for the Home Department 2015 SC 583, until the Upper Tribunal and the First-tier Tribunal

approaches decisions lawfully, asking the legally relevant questions, having regard to

legally relevant considerations and giving legally adequate reasons, it cannot be said that it

[17] With regard to the issue of whether the reasons for the decision of the Upper

Tribunal were adequate, this issue is now somewhat academic given my decision on the

principal ground of review. I would have in any event held that the reasons given were

adequate. An informed reader would be aware of the material before the Tribunals, the

decisions of the Tribunals and the basis for them when read in context. The informed reader

would not be left in any real and substantial doubt about the reasons for the Upper

[18] As it was accepted by counsel that grounds of review iii and iv were relevant to and

supportive of the principal ground of review ii, I will not determine or opine on these

grounds and I leave them to the Upper Tribunal to determine, if they are pursued, along

[19] For the reasons given, I will sustain the petitioner’s second plea-in-law and reduce

the decision of the Upper Tribunal to refuse leave to appeal against the decision of the First-

tier Tribunal, reserving meantime all questions of expenses.

Scottish Court of Session Decisions