Communicated on 22 October 2018
FIRST SECTION
Application no. 6796/16
A.A. and F.A.
against the United Kingdom
lodged on 29 January 2016
SUBJECT MATTER OF THE CASE
The first applicant is H.I.V. positive and was born with a disability to her right hand. The second applicant is the first applicant’s son, and has been diagnosed with autism spectrum disorder. The first applicant arrived in the United Kingdom from Nigeria on 11 June 2008, having previously spent time in the United Kingdom between August and December 2007 on a visitor visa. She made an asylum claim under a false identity in December 2008 which was refused. The second applicant was born in the United Kingdom on 18 February 2009.
The first applicant applied for leave to remain on her own behalf and that of the second applicant on grounds of their family and private lives on 4 April 2012. Leave was refused by the Secretary of State for the Home Department on 20 November 2013.
The applicants were successful on Article 8 grounds before the First-tier Tribunal on 27 August 2014 however that decision was set aside by the Upper Tribunal on 13 January 2015. The Upper Tribunal reheard the matter on 16 February 2015 and refused the applicants’ claim. The Upper Tribunal decision was promulgated on 18 February 2015.
The First-tier Tribunal had found that the applicants’ case was exceptional, that return to Nigeria would set both applicants back in terms of health and health facilities, and that F.A.’s education would be negatively affected by his removal from the United Kingdom where he attended a school for children with special needs. The Upper Tribunal found material error in that decision, including that a proper analysis of the public interest was not undertaken. Upon rehearing, the Upper Tribunal found that the applicants did not meet the requirements of the Immigration Rules and that there were no circumstances in their case indicating they should succeed in their appeal on Article 8 grounds or outside the Immigration Rules.
The Upper Tribunal and Court of Appeal refused permission to appeal the decision to reject the applicants’ appeals pursuant to the Immigration Rules and Article 8 of the Convention on 10 April 2015 and 27 July 2015 respectively.
QUESTIONS tO THE PARTIES
1. Would the applicants’ removal to Nigeria violate their right to respect for private and family life, contrary to Article 8 of the Convention?
In particular, taking into account the “best interests” of the child, would the removal of the second applicant constitute a disproportionate interference with his right to respect for private life?
2. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 8, as required by Article 13 of the Convention?
APPENDIX
A.A. who was born in 1982 F.A. who was born in 2009
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