Osawemwenze, R (On the Application Of) v Secretary of State for the Home Department

Paragraph 276ADE(vi) requires an applicant who has lived in the UK for less than 20 years to show that he has no relevant social, cultural or family ties with the country of return. Passage of time alone is insufficient. Where family life was formed while immigration status was precarious, removal will be disproportionate only in exceptional circumstances. Under section 55 of the Borders, Citizenship and Immigration Act 2009, a child’s welfare is a primary consideration, but it is not paramount and does not automatically require the family to remain in the UK. The court must consider the Article 8 rights of all affected family members and may reasonably expect relocation where the family has nationality, experience and ties in the country of return.

The claimant, a Nigerian national who had lived in the UK since 1999, sought judicial review of the Secretary of State’s refusal to grant temporary leave to remain. He relied on private life under paragraph 276ADE(vi), and alternatively on residual discretion outside the Immigration Rules based on his family life with his wife, two younger children and his Nigerian step-son, Fred Sabry.

Fred had lived in the UK for approximately 10 years and had been granted temporary leave to remain in his own right under paragraph 276ADE(iv). The Secretary of State issued a second decision letter with fuller reasons, including consideration of paragraph EX.1 and section 55 of the Borders, Citizenship and Immigration Act 2009. The central issues were whether the claimant had lost all ties with Nigeria and whether refusal of leave would disproportionately interfere with the Article 8 rights and welfare of the family.

1. Claim dismissed. The claimant had not established under paragraph 276ADE(vi) that he had no social, cultural or family ties with Nigeria. The burden was on him to provide evidence supporting that contention. The mere passage of 15 years in the UK was insufficient, particularly since paragraph 276ADE(iii) contemplated a 20-year qualifying period. The presence of the claimant’s Nigerian wife and step-son also pointed against the asserted absence of ties.
2. The residual discretion outside the Rules is a second stage of consideration. It may be required where the Rules do not address every conceivable circumstance or the cumulative effect of relevant factors. The applicant must show compelling circumstances not sufficiently recognised by the Rules: R (Nagre) v SSHD (2013) EWHC 720 (Admin) and SSHD v Gulshan (2103) UKUT 00640. Where family life was formed while immigration status was precarious, exceptional reasons are required: Nagre and MF (Nigeria) (2013) EWCA Civ 11920.
3. The Article 8 assessment had to include all affected family members. Relevant considerations included the children’s ages and circumstances, nationality, family ties, the history and precariousness of the immigration status, the extent of any disruption, and whether there were insurmountable obstacles to relocation. The approach was consistent with Biao v Denmark (2014) (App 38590/10) and ZH (Tanzania) (2011) UKSC 4.
4. Section 55 required Fred’s safety and welfare to be treated as a primary consideration. It did not make his interests paramount or create an automatic right for the claimant to remain. The Secretary of State had properly considered Fred’s settled status, residence, education and stage of development, while also considering his Nigerian nationality, the parents’ ability to reintegrate, the absence of medical or educational difficulties, and the stability available from relocation with both parents.
5. The disruption caused by relocation was significant, but neither the individual nor cumulative circumstances amounted to exceptional or compelling reasons. The refusal was not a disproportionate interference with the claimant’s or the other affected family members’ Article 8 rights.

First-instance judicial review. The judgment records that permission was granted by HHJ Pelling QC on 13 January 2014 and that the Secretary of State issued a fuller decision letter on 21 January 2014.