United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2022-001735
	First-Tier Tribunal No: HU/51059/2021 IA/04137/2021

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20 ^th March 2024

 

 

Before

 

UPPER TRIBUNAL JUDGE KEBEDE

 

 

Between

 

LM

(Anonymity Order made)

Appellant

and

 

ENTRY CLEARANCE OFFICER

Respondent

 

 

Representation :

For the Appellant: Mr Read, instructed by Hazelhurst Solicitors

For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

 

Heard at Manchester Civil Justice Centre on 4 March 2024

 

DECISION AND REASONS

 

1.        This is the re-making of the decision in the appellant's appeal, following the setting aside of the decision of First-tier Tribunal Judge Bannerman which had allowed the appellant's appeal on human rights grounds.

 

2.        The appellant originally came to the UK in 2014 on a Tier 4 visa to study for a PhD at Manchester University. He was later joined by the sponsor, EM, and their daughter A, born on 3 January 2014. The appellant returned to Nigeria in 2019 when his visa expired and after completing his studies. However the sponsor remained in the UK with A and their second daughter, N, born on 1 November 2016, and applied for protection in 2017 on the basis that N was at risk of FGM (the sponsor and A having already undergone FGM in Nigeria). The sponsor and her daughters were granted leave to remain as refugees on 7 July 2020.

 

3.        On 9 November 2020 the appellant applied for entry clearance to the UK under the family reunion rules, at which time it was said (in the covering letter) that he was employed at the Federal University Of Technology Owerri (FUTO) as a university lecturer, having been employed there since 2009. His application was considered under paragraph 352A of the immigration rules as the partner of a person granted refugee status and also under Article 8 of the ECHR and was refused in a decision dated 6 March 2021.

 

4.        In that decision the respondent noted that the appellant had not been included in the sponsor's application for leave to remain in the UK and that, in her screening interview for her asylum claim on 17 July 2017, when asked about a spouse or partner not included with her application, had confirmed his name and date of birth but had stated that they were currently separated. The respondent noted further that in the SEF interview on 22 September 2017 the interviewing officer referred to the sponsor as having split up with her husband at the time she made her application for leave to remain and referred to the appellant as her ex-husband throughout the interview, none of which was corrected by the appellant's representatives. The respondent considered that this strongly indicated that the appellant's relationship had broken down at the time the sponsor sought leave to remain in the UK. The respondent did not consider that the photographs produced by the appellant of himself and the sponsor, or the screenshots of chat messages between him and his daughter, were sufficient evidence to demonstrate that he was in a genuine and subsisting relationship with the sponsor, noting that the appellant and sponsor had not seen each other since approximately 2019 and that there was no evidence of contact between them. The respondent accordingly did not accept that the appellant had sufficiently evidenced that he was in a relationship with his sponsor, or that the relationship was genuine and subsisting, and considered that he failed to meet the requirements of paragraph 352A(i) & (v) of the immigration rules. The respondent did not consider that there were any exceptional circumstances or compassionate factors justifying a grant of leave outside the rules and found there to be no breach of section 55 or Article 8.

 

5.        The appellant appealed against that decision and his appeal came before First-tier Tribunal Judge Bannerman on 10 January 2022. In a skeleton argument produced for the appeal it was explained that issues had started in the appellant and sponsor's relationship when social services concluded that one of their daughters had had FGM performed on her in Nigeria and an FGM order was sought and issued by the court, to protect the youngest daughter. The order prevented the sponsor and children travelling outside the UK. It was explained further that prior to the court order being issued the appellant had requested the sponsor and children to return to Nigeria with him as his visa was due to expire but the sponsor refused as she wanted to protect their daughter and that resulted in the separation and the appellant returning to Nigeria alone. It was stated that the appellant and the sponsor separated in 2017 but they lived together until 2018 when the appellant applied for asylum and was given separate NASS accommodation. It was explained in the skeleton argument that the appellant left the UK in July 2019 but remained in communication with the sponsor and that they reconciled in February 2020 when the sponsor had an accident and the appellant heard about that. That then led to the family reunion application.

 

6.        The sponsor gave oral evidence before Judge Bannerman. Her evidence was that the appellant had had to return to Nigeria to pay off his bond there which he had obtained to come and study in the UK. Her evidence was that they had not divorced but remained in contact and that they loved each other. Social services had become involved in 2017 as a result of her daughter telling her school that her parents were arguing and social services took her youngest daughter from her when she was born. She had tried to meet up with her husband in Italy and Australia but social services had refused to permit her to do so.

 

7.        Judge Bannerman found the sponsor to be a credible witness and accepted that she and the appellant had reconciled. He accepted the explanation about the appellant returning to Nigeria to pay off his bonds and accepted that he now wished to return to the UK. He accepted that the appellant and sponsor had a genuine and subsisting relationship and that the requirements of the immigration rules were met. He allowed the appeal in a decision promulgated on 25 February 2022.

 

8.        The respondent then sought permission to appeal to the Upper Tribunal on the grounds that the First-tier Tribunal had failed to take into consideration a protection order against FGM dated 3 September 2018 which had been issued in the family courts and which referred to the appellant and sponsor being separated; that the First-tier Tribunal had failed to take into account evidence which suggested that the appellant was a danger to the children; and that the Tribunal had failed to assess fully the risk factor posed by the appellant.

 

9.        Permission was granted to the respondent and, in a decision promulgated on 7 February 2023, the Upper Tribunal, sitting as a panel, set aside Judge Bannerman's decision, as follows:

 

" 11. Ground 1 asserts that the FTT failed to take into account the FGM Protection Order dated 3 September 2018 made by his Honour Judge Berkley sitting at the Manchester Family Court [AB/50-56] on 'an enduring basis', naming both parents as respondents and demonstrating that at that time they were not in a relationship, but merely lived in the same household. We find that the FTTJ has failed to take this material evidence into consideration when deciding whether the relationship is presently subsisting. Moreover, there were obvious safeguarding concerns in relation to the children. The FTT's decision makes no mention that the basis of the Sponsor's claim for asylum was protection from FGM for the youngest daughter (the Sponsor and older daughter having already undergone FGM). There is no mention by the judge of the children being placed into the care of social services due to concerns over the risk of FGM. The decision also gives cause for concern as the judge ambiguously states at [20] that the elder daughter said the parents were arguing and suggested that this was the cause of intervention from the social services while the evidence suggested that they were removed from the household to protect the youngest daughter from FGM.

 

12. There was no evidence before the judge to support that that the FGM order is not still in force or that it is no longer relevant. Indeed, it appears to us a matter of concern that the Sponsor and Appellant have not applied to vary it to allow for the children to reside with both parents.

 

13. The FTT had before it the Sponsor's answers to questions in her substantive Asylum Interview Record (see the questions and answers to AIR 117-129 [RB/48-51], for example), which reveal the Appellant's apathy (in the Sponsor's view) to his daughter undergoing FGM and that he is influenced by his mother in Nigeria and that there is an inherent danger to the younger daughter.

 

14. We find that Ground 3 is made out. The decision is inadequately reasoned. The judge did not consider the totality of the evidence when deciding the issues in this case as rehearsed above. The issues and concerns raised in those documents disclose a number of matters that should have been considered when assessing the credibility of the witnesses and the intentions of the parties before being able to conclude in their favour. We find that the judge failed to consider material evidence which may have made a difference to the outcome in terms of credibility findings and how he dealt with the Sponsor's evidence before him. These omissions are material to his findings that the rules were met.

 

15. In relation to Ground 2, we do not find that the evidence supports that the Appellant is necessarily an agent of persecution, however this does not automatically mean that the children's best interests are necessarily served by his return if he was apathetic to the younger daughter undergoing FGM and did not stay to support or claim asylum along with his wife and daughters. As stated above, there is no further evidence on this issue such as a current position statement from the Appellant or a social worker with previous insight into the children's best interests and which is a relevant consideration when assessing proportionality.

 

16. We set aside the decision to allow the Appellant's appeal. We decided that the matter should be remade in the UT having regard to the Practice Statement of the Senior President of 12 September 2012 (at para 7.2). We conclude that para. 7.2 (a) and (b) are not satisfied. Remaking rather than remitting will constitute the normal approach to determining appeals where an error of law is found."

 

10.    Directions were made by the Upper Tribunal as follows:

 

" i The Respondent is at liberty to apply to amend or supplement the decision letter engaging with the duty to safeguard and promote the welfare of the younger daughter under section 55 of the Borders, Citizenship and Immigration Act 2009. Any 'new' decision must be served and filed not later than four weeks from the sending of this decision.

 

ii The position of the SSHD in the decision letter is that the Appellant does not meet para. 352A (i) and (v) of the IR. The SSHD is expected to engage (in any amended decision and/or Skeleton Argument) with the possibility that the UT finds that the Appellant meets all the requirements of para. 352A of the IR.

 

iii The Appellant shall file and serve a consolidated bundle within six weeks of the sending of this decision.

 

iv The Appellant's solicitors are to confirm whether permission has been sought from the family court to disclose the FGM order to the UT and the SSHD within 14 days of the sending of this order. In the meantime the UT will endeavour to make contact with the family court to obtain all relevant orders and documents.

 

v The parties shall file and serve skeleton arguments no later than 7 days before the re- hearing of this appeal."

 

11.    In accordance with the directions, the appellant filed two supplementary bundles together with a rule 15(2A) application on 29 November 2023. The first bundle contained a second witness statement for the sponsor, WhatsApp calls between the appellant and sponsor, email correspondence between the appellant and sponsor, video calls between the appellant and his family, a child and family assessment by Manchester City Council and a letter from social services dated 8 August 2022. The second bundle contained second statement from the appellant together with evidence of the appellant's and sponsor's trip to Ghana in January 2023.

 

12.    The appeal came before me on 30 November 2023 for a resumed hearing. However the matter had to be adjourned when it transpired that the respondent, as represented by Mr McVeety, had not been in receipt of the decision of the Upper Tribunal setting aside Judge Bannerman's decision and was therefore not aware of the directions issued. Mr McVeety indicated that it would be appropriate for a supplementary refusal decision to be issued and I also considered that the Tribunal would be assisted by a current position statement from a social worker with previous insight into the children's best interests.

 

13.    The appellant's representatives then produced a position statement from Bury Social Services dated 8 December 2023 advising that " there is no information to suggest that the children's father cannot come to the UK to see them, or that there are restrictions on his contact with them within the UK."

 

14.    The respondent issued a supplementary refusal reasons letter dated 15 December 2023, pointing out inconsistencies between the evidence given by the sponsor at her screening interview indicating that the appellant was not opposed to his daughter undergoing FGM and the evidence given to the social worker who undertook a risk assessment on behalf of Manchester City Council which was completed on 2 November 2016 indicating that the appellant agreed that he would not perform FGM on the baby. Reliance was placed by the respondent on Part 9 of the immigration rules in regard to the suitability requirements and it was asserted that it was not in the best interests of the appellant's daughter to admit him to the UK given his attitude towards FGM.

 

15.    The matter was then re-listed for hearing and came before me again on 4 March 2023. The respondent produced a skeleton argument for the hearing in which it was contended that the appellant could not meet the requirements of the immigration rules 352A(i) & (v) and that his entry to the UK was otherwise not conducive to the public good under paragraph 9.3.1 and that was determinative of any Article 8 proportionality balancing exercise.

 

Resumed Hearing

 

16.    The sponsor gave oral evidence before me. She adopted her statements of 19 October 2021 and 23 September 2022 as her evidence. When asked about her trip to Ghana and why she had travelled outside the UK, she said that she and her husband had not seen each other for a long time and needed to see each other. When asked how she travelled when her passport was held by the local authority, she said that she had told the social worker that she wanted to travel but she did not have the money to go to the family court so she applied for a refugee travel document which permitted her to travel to any country apart from Nigeria. The sponsor said that her eldest daughter's health was not good and in 2002 an ambulance was called when she collapsed and she was diagnosed with asthma. In 2023 there were three occasions when her daughter had to go to hospital to have oxygen and she had been there on another occasion for a review and to receive inhaler treatment. She now used an inhaler and was on medication. The first time it happened was at night and so she had to take her youngest daughter to the hospital with her. If her husband was here in the UK it would be helpful to her as she could leave their youngest daughter with him. The sponsor confirmed that she loved her husband.

 

17.    When cross-examined by Mr Bates, the sponsor said that her husband always contacted her to check on their daughter and he was in touch when she was in hospital. She had produced evidence of their communication through WhatsApp, which was how they kept in contact. When asked why her WhatsApp messages referred to "Eugene", the sponsor said that Eugene was her neighbour from her previous address and that she was on a call with Eugene when her husband's call came in and he was put on hold while she did screenshots of her husband's calls. Mr Bates asked the appellant if she had evidence of her trip to Ghana other than the evidence of bookings, such as her stamped travel document. She said that she did not have the travel document with her. Mr Bates asked the sponsor about a letter dated 8 August 2022 from Bury Council in relation to her request to travel to Italy with her children. She said that she had asked the social services if they could travel abroad since her daughter, who was 9 years of age at that time, wanted to travel, but she was told that she was not allowed and so they did not go. She did not have the money to make an application to the family court. The sponsor confirmed that she had never asked the family court if she could travel with her children to see her husband, but had only ever asked the social services, as she did not have the money to pay for an application to the family court. The sponsor said that her husband was still working as a teacher in Nigeria, at the same university which had previously sponsored him to come to the UK. He had left the UK in 2019 and was unable to return to the UK to see their children when intended in 2020 because of Covid. Their plan was for her husband to come to the UK to be part of the children's lives. The sponsor said that her husband did not want their daughter to undergo FGM. She had believed in FGM herself previously as that was how she had been brought up, but she had since done a lot of research and had read information sent to her by the social services, and she had passed that information on to her husband and he now agreed with her and did not believe in FGM anymore. However his family still held the same views. When asked when she and her husband had reconciled, the sponsor said that it was when she had suffered a fracture in 2020 and was in hospital and the children had to be taken into care for a while. When she came out of hospital she had to wear a caste. It was during Covid and so no one could come to the house and it was very hard as she was not able to do anything herself. She needed him then. When she went away with her husband to Ghana she had to employ a childminder, for about 3 weeks. Mr Bates asked the sponsor if she had been pressurised into making this application and she said that she was doing it because the children wanted their father here.

 

18.    Both parties made submissions.

 

19.    Mr Bates submitted that the Secretary of State was concerned that the appellant was using the family reunion route to obtain a multi-entry visa but in fact had no intention of staying in the UK as he was still in employment with the same employer in Nigeria. Although there was evidence in relation to a trip to Ghana, the evidence only showed such a trip was booked but there was no evidence such as stamps in the sponsor's travel document to show that it actually took place. There was no evidence to support the sponsor's claim that she left the children with a childminder whilst she went away. The reference to 'Eugene' in the WhatsApp messages raised questions about the reliability of that evidence and there was no phone number provided for the appellant to connect the messages to him. The messages were also not recent. There was no evidence of the claimed regular calls when their child was ill, and no evidence of the child's medical issues. Mr Bates submitted that the appellant had had plenty of notice of what was needed to demonstrate that her relationship with the appellant was durable but she had not produced such evidence and the burden of proof to show that there was a subsisting relationship had therefore not been discharged. As for the suitability issue, Mr Bates said that the update from social services, in the letter of 8 December 2023, was very short and did not seem to take account of the fact that the sponsor's evidence had previously been that the appellant could not be relied upon not to take the children out of the UK. It was not clear from the letter what was the reasoning of the social services and whether they thought the risk from the appellant was manageable because he was only coming for a visit. Mr Bates submitted that the appellant had not discharged the burden of proof to assuage the Secretary of State's concerns, as set out in the supplementary refusal decision. There remained safeguarding concerns which were relevant to the section 55 consideration and the appellant had failed to discharge the burden of proof in regard to the wider Article 8 consideration.

 

20.    Mr Read, relying upon the guidance in Sahebi (Para 352(iii): meaning of "existed") Pakistan [2019] UKUT 394, submitted that the appellant had provided formal evidence of his marriage, namely his marriage certificate, which was sufficient to meet the requirements of paragraph 352A(iii). The Secretary of State, in asserting that the marriage certificate had been offered dishonestly for the purposes of obtaining a visit visa where there was in fact no subsisting relationship, was essentially alleging fraud, which was a new issue and was one where the burden of proof lay upon the Secretary of State. There was no need for the appellant to provide medical evidence in relation to his daughter as the medical issues had been raised by the sponsor simply to illustrate the necessity of the children's father in their lives. The respondent had not considered the rights of the child and had not considered section 55 of the Borders, Citizenship and Immigration Act 2009 in regard to the benefit to the children of having their father in their lives. As for the suitability issue, that had only been raised for the first time in December 2023 and was entirely speculative. There was no evidence that the appellant was unsuitable in regard to the parenting of the children. The most that could be said was that he was previously ambivalent about FGM but that was understandable if considered in the context of the way in which he was brought up, whereas he had now changed his view. The social services had no issues with his suitability for parenting his children. It was in the children's best interests to have their father here.

 

21.    In reply Mr Bates submitted, in relation to Mr Read's mention of a fraud allegation, that the Secretary of State was not disputing the genuineness of the appellant's marriage certificate. The Secretary of State's case was that the requirements of paragraph 352A were not met in relation to the appellant's intention to live with the sponsor permanently in the UK at the current time. Credibility had always been in issue and was not being raised for the first time.

 

Discussion

 

22.    I do not agree with Mr Read that the respondent's position has changed and that new allegations of fraud and deception have since been made. The respondent has never disputed the validity of the appellant's marriage to the sponsor or the genuineness of their relationship in the past. The concern, which led to the refusal of the appellant's application, was whether the couple was currently in a genuine and subsisting relationship with a genuine intention to live together permanently, given the previous indications that they had separated. It was considered by the respondent that, in light of the sponsor's evidence at her asylum interviews about their separation and given the lack of sufficient supporting evidence, there was in reality no subsisting relationship and that this was simply an attempt by the appellant to be able to return to the UK. That has consistently been the respondent's case. However I do not agree with that case.

 

23.    The appellant and sponsor have provided detailed statements explaining the circumstances under which their relationship broke down, namely when the appellant was due to return to Nigeria to honour his bond to his employer after completing his PhD in the UK and wanted the family to return together, whereas the sponsor did not want to return to Nigeria because of the family pressure to have their daughter N circumcised and the risks involved. It seems that that led to arguments which then raised concerns by the teachers at their daughter's school, and ultimately to the breakdown in their relationship. That is made clear in the sponsor's first statement at [6] and in her subsequent statement at [2] to [5], and is confirmed by the appellant in his latest statement at [6], and is consistent with the evidence the sponsor gave in her SEF interview, where at question 64 she confirmed that her husband was against FGM, as repeated at question 117, but then at questions 125 to 126 explained that the fact that he was prepared for them all to return to Nigeria suggested to her at the time that he did not care about his family. It seems to me that that is a plausible account of how the relationship broke down at that time and why the sponsor remained in the UK whilst her husband returned to Nigeria.

 

24.    The reasons given by the appellant and the sponsor in their statements for the relationship resuming and for the appellant wishing to join his family in the UK are, in my view, equally understandable and credible. The sponsor gave persuasive evidence before me, explaining that they had kept in constant communication since her husband's departure from the UK but that it was in particular when she fell and fractured her leg in 2020 that the desire for them to be together again was fully realised. There is evidence before me to show the continued contact between the appellant and the sponsor. Whilst there was some concern by Mr Bates about the name Eugene appearing in some of the WhatsApp chats, it is clear that there has been regular contact between the appellant and sponsor and I accept that the communication was between those parties. The WhatsApp calls are in addition to email correspondence between the appellant and the sponsor and the video messages suggest a close relationship between the appellant and his daughters. I do not agree with Mr Bates that the evidence provided in relation to a trip to Ghana is lacking in terms of showing the trip was undertaken rather than merely having been booked. The evidence includes boarding passes of a type which are issued at the airport rather than simply being printed out at home and there is also a baggage receipt which would not have been issued without the luggage having been checked in. Taken together with the hotel receipts and the photographs of the couple with confirmation of their location, I accept that the trip took place and that it is evidence of the couple having spent time on holiday in Ghana in January 2023. No issue was taken about the sponsor travelling on a refugee document without obtaining permission from the family court for the release of her passport and the suggestion was that that was done with the knowledge of the local authority. In the circumstances I do not take the matter any further myself.

 

25.    It is the case, as Mr Bates submitted, that the evidence of communication is not current. However, I had the benefit of hearing from the sponsor whom I accept was giving a reliable account of her relationship with the appellant. In the circumstances I accept that the appellant and sponsor's relationship is ongoing and that the intention is genuinely for them to live together in the UK on a long-term basis.

 

26.    Turning to the suitability issues raised by the respondent, I have to agree with Mr Read that the concerns expressed in the supplementary refusal decision are speculative. I have had careful regard to the evidence relating to the proceedings in the family court and note the following.

 

27.    The documents show that the appellant and sponsor's second child, N, has been the subject of successive FGM Protection Orders, in which the appellant and the sponsor were respondents in the applications made by Manchester City Council. Those orders were instigated by the Children's Services at Manchester City Council upon a referral made in May 2016 by a Manchester midwife who noted that the sponsor and her eldest daughter had undergone FGM and that the sponsor was expecting another child, so giving rise to concerns about the safety of the unborn child if that child was a girl. The baby, a daughter, was born on 2 November 2016 and was named N.

 

28.    The first order of 3 November 2016 followed an application supported by a statement from N's social worker, Christine Fisher, dated 2 November 2016. In accordance with that order, the appellant and sponsor were prohibited from arranging FGM to be performed on N in the UK or abroad and from taking N out of the UK for any purpose without permission, and they had to surrender their passports and travel documents to the local authority. That order was extended on 31 March 2017, in the same terms, and was based upon a recommendation from the local authority as supported by a statement from N's then allocated social worker, Deborah Evason, dated 24 March 2017. In her statement the social worker noted, in the same terms as the previous social worker, that the appellant and sponsor had initially accepted the practice of FGM without questioning but had since engaged with the local authority in educative work around FGM as well as their own research and had then acknowledged the risks involved in the procedure and confirmed that they would not perform FGM on N. The sponsor had since reported concerns about pressure from family in Nigeria for N to undergo FGM and it was agreed there was remained a high risk for N such that the FGM Order needed to be extended until the expiry of the appellant's visa in May 2018. The order was subsequently extended again on 3 September 2018 on an enduring basis, in similar terms. It seems from a letter dated 8 August 2022 from Bury Council that the order has since been extended in 2020, although the terms of any order at that time have not been provided.

 

29.    It is relevant to note that none of those orders, or the application made for the orders, suggest that the appellant was a risk to his children. It seems, from a reading of the social workers' statements, that the concern was that the appellant and sponsor could succumb to outside pressure, in particular if they returned to Nigeria. It was on that particular basis that the risk was considered still to be high and the applications were therefore made for the orders to be made and extended. Indeed that is consistent with the recent letter from Bury Council dated 8 December 2023 which, albeit brief and somewhat uninformative, nevertheless confirmed that there was no objection to the appellant returning the UK and having contact with his children. As Mr Bates submitted, it is not clear from that letter that the local authority was aware that the appellant was seeking to return to the UK on a permanent basis, but the letter nevertheless suggests that there were no safeguarding concerns in regard to the appellant's presence in his children's lives.

 

30.    Although the respondent, in the supplementary refusal decision, points to an inconsistency in the evidence suggesting that the appellant had not been truthful in his claim that he would not subject his daughter to FGM, I do not consider that that is the case. Reference is made to what the appellant had said to the social worker Christine Fisher in November 2016, namely that he would not permit FGM on his daughter, which appeared to have been contradicted by the sponsor's evidence in her asylum screening interview, at 4.1, that he was not against FGM. However it seems to me that that evidence has to be read in the light of the witness statements from both the appellant and the sponsor which, as I have said above at [23], explains the circumstances under which their relationship broke up and is consistent with the sponsor's evidence at her SEF interview. Clearly the sponsor was unhappy that her husband was prepared at that time to take the risks involved in the family returning to Nigeria, but there was no suggestion that she considered that he would be proactive in terms of arranging for N to undergo FGM.

 

31.    For all these reasons I accept that the appellant has shown that his relationship is a genuine and subsisting one and that there is a genuine intention for him and the sponsor to live permanently with each other, and I accordingly accept that the requirements of paragraph 352A of the immigration rules are met. I do not consider there to be reasons for concluding that the appellant's presence in the UK would not be conducive to the public good for the purposes of paragraph 9.3.1 of Part 9 of the immigration rules or that the suitability provisions of the immigration rules otherwise apply. There is no basis for concluding that the children's best interests lie anywhere other than having their father in their lives. The FGM order remains in place preventing N's departure from the UK without the permission of the family courts and I do not consider that the evidence raises safeguarding issues on the basis of the appellant's presence in the UK. As such, it seems to me that the refusal of entry clearance to the appellant is disproportionate and in breach of Article 8. The appeal is therefore allowed on that basis.

 

DECISION

 

32.    The making of the decision of the First-tier Tribunal having been set aside, the decision is re-made by the appellant's appeal being allowed.

 

S Kebede

 

Upper Tribunal Judge Kebede

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

15 March 2024