A UK upper tribunal has overturned an earlier decision that halted the deportation of Olutobi Ogunbawo, a 43-year-old Nigerian, after his wife, Maria Adesanya claimed that in vitro fertilisation (IVF) treatment was unavailable in Nigeria.
Ogunbawo, who was convicted in 2019 for immigration-related offenses, had initially avoided deportation when his wife, Maria Adesanya, argued successfully before a first-tier tribunal that removing him from the UK would extinguish her chances of having a child.
Maria had testified that IVF treatment, essential for their efforts to conceive, was unavailable in Nigeria, a claim the tribunal accepted.
In January 2023, Judge Malone of the first-tier tribunal ruled that deporting Ogunbawo would impose undue hardship on the couple, effectively blocking his removal.
However, the secretary of state for the home department challenged this decision, questioning the credibility of the claim about IVF availability.
The case was subsequently referred to the upper tribunal for review.
On November 4, 2024, the upper tribunal found that the first-tier tribunal had erred in its judgment by accepting Maria’s testimony without requiring independent evidence to back her assertions.
The upper tribunal pointed out that even a cursory search would have shown the existence of IVF services in Nigeria, undermining the foundation of the couple’s argument.
The judgment stated, “We conclude that the judge erred in exclusively relying upon Ms. A’s (referring to Maria) personal evidence when finding as a fact that IVF treatment is unavailable in Nigeria,” the upper tribunal ruled.
“In circumstances where neither party filed objective evidence as to the availability of IVF treatment in Nigeria, the judge failed to address in his reasoning as to how Ms. A had formed her personal view.
“Whilst it may have been her subjective view that the treatment is unavailable, the judge was required to assess and determine the objective fact of whether IVF treatment is available in Nigeria or not.
“For example, we cannot discern from the judge’s decision whether he concluded that IVF treatment is unavailable based upon a bald assertion from Ms. A without her having performed any research into what IVF treatment is available in Nigeria, or equally whether his finding is based upon oral evidence detailing efforts she made in contacting hospitals and clinics in Nigeria about offering fertility treatment.
“We observe the Secretary of State’s unchallenged assertion before us that even the most basic Google search reveals the existence of IVF treatment in Nigeria.
“The Secretary of State’s appeal is allowed to the extent that the decision of the First-tier Tribunal is set aside in its entirety.
“The appeal is to be remitted to the First-tier Tribunal to be heard by any judge other than First-tier Tribunal Judge Malone.”
Convicted of conspiring to facilitate unlawful immigration by paying a British citizen to falsely claim paternity of his child, Ogunbawo served a three-year prison sentence but has since remained embroiled in deportation proceedings.
