Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/00638/2016
AA/11761/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 20th January 2017
on 7th February 2017

Before

upper tribunal JUDGE MACLEMAN

Between

yan qing chen &
KA GEEK CHUA
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellants: Mr S Martin, of Jain, Neil & Ruddy, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The first appellant is a citizen of China and the second is a citizen of Malaysia. They have two children, both born in the UK. The respondent refused their applications on asylum and on all other grounds. First-tier Tribunal Judge Handley dismissed their appeals by determination promulgated on 23rd September 2016.
2. Permission was granted to appeal to the UT on a restricted basis:
"... The judge's consideration of Article 8 is confined to two very brief paragraphs [63-64] ... the judge has arguably not given any real consideration to the interests of the two young children ... and has only peremptorily addressed the viability of the family living together in Malaysia or China ... Permission ... is granted on Article 8 only, in terms of family and private life."
3. The appellants have not sought to argue any other ground.
4. Mr Martin submitted as follows. The judge gave inadequate reasons for the outcome in terms of Article 8. He failed fully to engage with the facts of the family life of the appellants, and did not assess the best interests of the two children. There might be difficulties in registering the births or establishing the nationality of children either in China or in Malaysia. Background materials before the judge had shown that in China there is a requirement to register a birth within one month. Even if the children were able to enter China, the judge did not engage with the difficulties which might arise there for their Malaysian mother. There might be difficulties in establishing family life in China. As to Malaysia, there had been evidence of a requirement to register births within fourteen days, and of a need to produce the identification documents of both parents, if they were unmarried. There were also background materials regarding problems that might arise over children in Malaysia born out of wedlock, against the background of Sharia law. There was a possible obstacle to the Chinese appellant entering Malaysia. It was accepted that the appellants could not meet the requirements of the Immigration Rules in respect of family life, but there had been compelling circumstances by which there might have been success in terms of Article 8, outside the Rules. The case should be remitted to the First-tier Tribunal.
5. Mr Martin accepted the following in course of submissions. The onus had been on the appellants to establish any difficulties over citizenship and entry into China or Malaysia. The children had UK birth certificates, naming both parents. There was no evidence that such certificates were not accepted in China and Malaysia. The family planning rules in China are relatively relaxed in respect of foreign born children. The second appellant is of Chinese ethnic origin. The common language of the appellants is Mandarin.
6. Mr Matthews pointed out that the first appellant gave his religion at screening interview as Christian, and the second as Buddhist. He submitted further as follows. The appellants effectively brought a challenge based on inadequacy of reasoning. It had been for them to make their case. It was plain that the best interests of the two young children were to be served by their remaining with the parents. The appellants had done very little to establish where the children might go. They effectively left the matter obscure, hoping to use the children as pawns to forestall their own removal. The appellants had not pointed to any evidence to establish the nationality of the children; it was at least likely that they were entitled to both Chinese and Malaysian nationality. Evidence of the reception of foreign born children into China was not entirely clear, but the country guidance did not show that there was likely to be any substantial interference with their best interests. The appellants put their family life case on a flimsy basis before the First-tier Tribunal, so it was highly surprising that it was not dealt with at length. The First-tier Tribunal made no error of law. Alternatively, if error were to be found, the respondent would seek to introduce further evidence on nationality and on immigration into China and Malaysia, and the UT should reach a further decision in that light.
7. I put the case back to the end of the list, to enable the parties to consider further materials. Both representatives then made further submissions on what the outcome might be, if the decision were to be remade, under reservation of the question of whether there was any error such as to require remaking.
8. It is unnecessary to go into the detailed background references, as the position which emerged after final submissions was clear and undisputed. The children will be accepted by the Chinese authorities as having Chinese nationality, and by the Malaysian authorities as having Malaysian nationality. It is a practical certainty that the Malaysian mother would be permitted to enter and reside in China, and at least highly likely that the Chinese father would be permitted to enter and reside in Malaysia. The nationality and immigration law of China and of Malaysia puts no difficulty in the way of the family residing as a unit in either country.
9. Mr Matthews submitted that on that basis there was nothing to suggest that the best interests of the children would be adversely affected by the removal of their parents, or that either appellant had any right to remain in the UK, outwith the requirements of the Immigration Rules.
10. Mr Martin maintained his submission that the decision was inadequately reasoned, and that there was scope for the appeal to be allowed in terms of Article 8, outwith the Rules.
11. While much is made in the grounds of the children being seen in Malaysia as children born out of wedlock to a Christian Chinese father, and therefore less likely to be accepted, there are quite large and overlapping minorities there of ethnic Chinese, Christians, and Buddhists, and no evidence that Sharia law or any other factor in Malaysian society results in serious difficulties for the children of a family such as this.
12. The alleged difficulties of registration of birth in China and Malaysia are all based on materials relating to children born there. There is nothing that suggests that UK birth certificates, identifying both parents, constitute anything less than satisfactory documentation, for any purpose.
13. The limited treatment by the judge of Article 8 issues is not shown to constitute an error of law. On examination of the materials before and the case made to the First-tier Tribunal, the findings by the judge at paragraphs 63 -64 were indeed brief, but they were legally adequate.

14. In the alternative, any error made was immaterial, and if the decision, were to be remade, the same outcome would inevitably be reached. Full examination of the materials shows no difficulties in the way of this family establishing itself either in China or in Malaysia, without any significant detriment to the children's interests.
15. The determination of the First-tier Tribunal shall stand.
16. No anonymity direction has been requested or made.

6 February 2017
Upper Tribunal Judge Macleman