Enaburekhan (Nigeria) v Secretary of State for the Home Department,  CSOH 18
https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020csoh18.pdf (Outer House, Court of Session, 12 February 2020)
A Nigerian national who lodged an article 8 claim to remain in the UK with her extended family members has successfully challenged by way of judicial review a decision made by the Upper Tribunal (Immigration and Asylum Chamber). The Upper Tribunal had refused her permission to appeal.
Initially the First-tier Tribunal had rejected the Petitioner’s claim that she had developed a ‘de facto parental relationship’ with several of her nephews in the UK, following which the petitioner sought permission to appeal to the Upper Tribunal.
The Upper Tribunal refused her application and concluded that the asserted existence of a parental relationship between her and her nephews was “little short of fanciful”. Following this, the applicant took the case to the Court of Session.
Counsel for the Petitioner argued that the Upper Tribunal had erred in law and had failed to give due regard to section 117B (6) of the Nationality, Immigration and Asylum Act 2002. This section sets out the public interest considerations which are applicable to cases involving the right to family and private life. Counsel also cited MSA v Advocate General for Scotland 2018 SLT 1313 which was considered by Lord Mulholland in his written opinion (see paras 12-16 of judgment).
The Court of Session reduced the Upper Tribunal’s decision to refuse leave to appeal against the First-tier Tribunal. In his written opinion Lord Mulholland stated that there had been a “material error of law”, that the appeal was not without merit, and may succeed on appeal. In accordance with Zoumbas v Secretary of State for the Home Department  UKSC 74, the best interests of the children would also be a primary consideration when deciding the issue.
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