OEA & Ors v The Secretary of State for The Home Department

In an Article 8 assessment concerning young children, their welfare and best interests are a first and primary consideration. The proper starting point is ordinarily that children should live with and be brought up by their parents, absent a very strong contrary indication. Removal with both parents will not separate family life.

A child’s substantial residence may acquire weight because it produces roots, identity, friendships and links beyond the family. The weight depends on the child’s actual private life. During very early years, a child is usually focused mainly on self and carers. Adaptability to a new country remains relevant, but it is not conclusive. Each case requires an individual assessment and a fair balance against the public interest in immigration control.

The Nigerian appellants were a married couple and their two young daughters. The father had entered the United Kingdom as a student. His wife and elder daughter joined him as dependants, and the younger daughter was born in the United Kingdom. Their applications for further leave outside the Immigration Rules were refused.

An Immigration Judge dismissed their Article 8 appeals on 31 January 2011. Permission to appeal was granted only on the arguable ground that the children’s welfare had not been assessed in accordance with ZH (Tanzania) [2011] UKSC 4. The central issue was whether removal of the whole family to Nigeria would be a disproportionate interference with the children’s private life when their best interests were treated as a first and primary consideration.

Decision

1. The Upper Tribunal found a material error of law in the Immigration Judge’s decision. The assessment had treated education as the decisive lens and had inadequately addressed the children’s welfare, their nursery and school attendance, and their lack of meaningful experience of Nigeria. The decision was set aside.

2. On remaking the decisions, the Tribunal held that the children’s best interests were a first and primary consideration. The correct starting point was that young children should live with and be brought up by their parents, unless a very strong contrary indication existed. As the family would return together, removal did not separate their family life.

3. The Tribunal applied the approach in ZH (Tanzania) [2011] UKSC 4. The children’s adaptability was relevant but not decisive. Their residence in the United Kingdom had been lengthy relative to their ages, but their private lives remained principally intra-family. They had only begun nursery and primary school, and there was no evidence of deep friendships, special educational needs, health concerns, or dependency on particular provision outside the family.

4. The children could adapt to life in Nigeria with both parents. They had Nigerian nationality, grandparents and other family links there. Their parents were educated, able to work, and capable of providing a good standard of care. The parents had come to the United Kingdom for the temporary purpose of study and had no reasonable expectation that the family could remain indefinitely.

5. Giving primary weight to the children’s best interests did not make removal disproportionate. Firm and fair immigration control, consistently applied after the completion of the father’s studies, justified the interference with the appellants’ private life. The appeals against the respondent’s decisions of 26 October 2010 were therefore dismissed.

• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal set aside the Immigration Judge’s decision for a material error of law, but remade the decisions by dismissing the appellants’ Article 8 appeals: [2011] UKUT 315 (IAC).
• First-tier Tribunal: Immigration Judge Gurung-Thapa dismissed the appellants’ Article 8 appeals in a determination issued on 31 January 2011.
• First-tier Tribunal: Permission to appeal was granted on 7 April 2011, limited to the arguable failure to apply the children’s welfare principles in ZH (Tanzania) [2011] UKSC 4.