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Victory for Nigerian Child Against First-Tier Tribunal’s “Ex-Tempore” Judgement

by Kenworthy's Chambers 06/02/2018

John Nicholson, instructed by the Greater Manchester Immigration Aid Unit, represented a mother and daughter from Nigeria who have lived in the UK for 10 years; the daughter came to the UK when she was 4 years old and has grown up in England, now studying for her GCSEs at High School.
"The case was heard before the President of the Upper Tribunal Mr Justice Lane, as is reported as MT and ET (child's best interests; ex tempore pilot) Nigeria [2018] UKUT 88 (IAC)."

The Home Secretary refused to treat the mother's further representations as a "fresh claim", but she succeeded in quashing this refusal at a full Judicial Review hearing in 2012. This (eventually) led the Home Secretary to make a new decision, carrying an in-country right of appeal. Following an oral "Ex-Tempore" (on the day) judgement in 2017 before the First-Tier Tribunal, which took place literally when they had been in this country 10 years to the day, the appeal was dismissed.

The mother and daughter sought, and were granted, permission to appeal to the Upper Tribunal. Following a hearing before a panel of Upper Tribunal Judges, including the recently appointed Chamber President, the Upper Tribunal set aside the decision dismissing the appeal and remade the decision, allowing the appeal, and recognising the importance that 10 years of residence holds for any child.

The decision is an important one, not least for the guidance that the Upper Tribunal gives on the use of "ex-tempore" decisions in immigration and asylum appeals, but also for the Upper Tribunal's assessment of whether a poor, yet "run of the mill", immigration history could amount to the kind of "powerful reasons" that are required to outweigh the best interests of a child who to a child who had resided in the UK for such a length of time. As the Chamber President held:

"given the strength of [the Appellant's daughter's] case, [the Appellant's] conduct in our view comes nowhere close to requiring the Respondent to succeed".

An important indicator and an important reminder of where the balance lies when weighing the best interests of the child in the article 8 balancing exercise.