Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal numbers: AA/02854/2012
AA/11446/2011
AA/10809/2011
AA/12363/2011

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 March 2016 and 1 February 2017
On 1 March 2017

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

JJL, SHL, CIL and DIL
[ANONYMITY ORDER MADE]
Respondents

Representation
For the appellant: On 21 March 2016, Mr K Norton, and on 1 February 2017,
Ms A Holmes, Senior Home Office Presenting Officers.
For the respondents: Mr R O’Ryan, instructed by Greater Manchester Immigration Aid

Anonymity order
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the claimants in these proceedings. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

DECISION AND REASONS
1. The Secretary of State and the claimants both appealed against the First-tier Tribunal’s decision, allowing the claimants’ appeals on human rights grounds but dismissing them under the Refugee Convention and in humanitarian protection under the Qualification Directive, on the basis that all of the claimants are citizens of both South Korea and North Korea and that they were at no risk engaging either Convention in South Korea.
2. On 3 May 2016, the Upper Tribunal sent to the parties a decision erroneously identifying this as an appeal where the Secretary of State had withdrawn her case. It appears that these appeals were conflated with another appeal before the Upper Tribunal on that day. That error was promptly corrected by me: on 7 June 2016, I sent for promulgation a decision setting aside the 3 May 2016 decision in relation to these claimants, and substituting a fresh decision pursuant to rule 42 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (as amended). However, it seems that decision was not promulgated.
3. On 1 February 2017, the application to set aside my decision came before Upper Tribunal Judge Dawson who set aside the decision of 3 May 2016 again. Judge Dawson’s decision records what the parties said about the hearing on 21 March 2016. He does not seem to have been made aware of my decision of 7 June 2016. The operative part of Judge Dawson’s decision is at [9]-[13] thereof:
“9. … I am satisfied that it is in the interests of justice for the decision of Judge Gleeson to be set aside in the light of the procedural irregularity that has occurred.
10. As a consequence, the appeals by the parties remain pending before the Tribunal and for a decision based on the submissions that were made on 21 March 2016. No evidence was taken on that occasion. The hearing was confined to legal argument.
11. By way of postscript, Ms Holmes, representing the Secretary of State today, is a relative stranger to the case and with the assistance from Mr O’Ryan has a rather better picture of what is going on than she had when she first arrived in Field House today. She was unaware of the age of the first [claimant] and has now a better picture of his condition. It is understood that he is suffering from a form of dementia. He is the father of the adult [claimants].
12. In the circumstances, [Ms Holmes] has agreed to consider this case and in the circumstances, Judge Gleeson will defer sending out her decision until 14 days have elapsed since today’s hearing. It is for the [claimants’] representatives to make such further submissions as they wish to the Secretary of State so that she has a contemporaneous picture.
13. Whether the Secretary of State decides to take a step in this matter which would resolve these proceedings is a matter entirely for her and I do not direct that she does so but it is hoped that the 14-day period of reflection might result in the outcome the [claimants] are seeking.”
4. On 22 February 2017 after the 14-day period had elapsed, the claimants’ files were passed back to me to remake the decision. There were no further observations received from the Secretary of State but in any event, if the claimants have made further submissions to the Secretary of State, that is a matter to be dealt with by her in a future decision, which may or may not give rise to a further right of appeal.
5. The Upper Tribunal gave country guidance on questions of nationality in the Korean Peninsula in KK and others (Nationality: North Korea) Korea CG [2011] UKUT 92 (IAC), published on 7 March 2011, and in GP & Ors (South Korean citizenship) North Korea CG [2014] UKUT 391 (IAC), published on 20 August 2014. In this decision, as in the country guidance decisions, the Democratic Republic of Korea is referred to as ‘North Korea’ and the Republic of Korea as ‘South Korea’. The guidance on nationality in the Korean peninsula in KK and others was as follows:
“…2. Korea
(a) The law and the constitution of South Korea (ROK) do not recognise North Korea (DPRK) as a separate State.
(b) Under South Korean law, most nationals of North Korea are nationals of South Korea as well, because they acquire that nationality at birth by descent from a (North) Korean parent, and fall therefore within category (i) in 1(a) above.
(c) South Korea will make rigorous enquiries to ensure that only those who are its nationals are recognised as such but the evidence does not show that it has a practice of refusing to recognise its nationals who genuinely seek to exercise the rights of South Korean nationals.
(d) South Korean law does not generally permit dual nationality (North Korean nationality being ignored for this purpose).
(e) South Korean practice appears to presume that those who have been absent from the Korean Peninsula for more than ten years have acquired another nationality displacing their South Korean nationality; such persons therefore move from category (i), in 1(a) above, to category (iii).”
6. The guidance in GP & others given in August 2014 was as follows:
“(1) The Upper Tribunal’s country guidance in KK and others (Nationality: North Korea) Korea CG [2011] UKUT 92 (IAC) stands, with the exception of paragraphs 2(d) and 2(e) thereof. Paragraphs (2), (3) and (4) of this guidance replace that given in paragraphs 2(d) and 2(e) respectively of KK.
(2) South Korean law makes limited provision for dual nationality under the Overseas Koreans Act and the Nationality Act (as amended).
(3) All North Korean citizens are also citizens of South Korea. While absence from the Korean Peninsula for more than 10 years may entail fuller enquiries as to whether a person has acquired another nationality or right of residence before a travel document is issued, upon return to South Korea all persons from the Korean Peninsula are treated as returning South Korean citizens.
(4) There is no evidence that North Koreans returned to South Korea are sent back to North Korea or anywhere else, even if they fail the 'protection' procedure, and however long they have been outside the Korean Peninsula.
(5) The process of returning North Koreans to South Korea is now set out in the United Kingdom-South Korea Readmission Agreement (the Readmission Agreement) entered into between the two countries on 10 December 2011. At present, the issue of emergency travel documents under the Readmission Agreement is confined to those for whom documents and/or fingerprint evidence establish that they are already known to South Korea as citizens, or who have registered as such with the South Korean Embassy in the United Kingdom.
(6) Applying MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289, North Koreans outside the Korean Peninsula who object to return to South Korea must cooperate with the United Kingdom authorities in seeking to establish whether they can avail themselves of the protection of another country, in particular South Korea. Unless they can demonstrate that in all of the countries where they are entitled to citizenship they have a well-founded fear of persecution for a Refugee Convention reason, they are not refugees.
(7) If they are not refugees, it remains open to such persons to seek to establish individual factors creating a risk for them in South Korea which would engage the United Kingdom’s international obligations under the EU Qualification Directive or the ECHR.
(8) There is no risk of refoulement of any North Korean to North Korea from South Korea, whether directly or via China. South Korea does not return anyone to North Korea at all and it does not return North Koreans to China. In a small number of cases, Chinese nationals have been returned to China. A small number of persons identified by the South Korean authorities as North Korean intelligence agents have been prosecuted in South Korea. There is no evidence that they were subsequently required to leave South Korea.
(9) Once the 'protection' procedure has been completed, North Korean migrants have the same rights as other South Korean citizens save that they are not required to perform military service for South Korea. They have access to resettlement assistance, including housing, training and financial assistance. Former North Koreans may have difficulty in adjusting to South Korea and there may be some discrimination in social integration, employment and housing, but not at a level which requires international protection.”
Remaking the decision
7. That is the basis on which I now remake the decision following the hearing on 21 March 2016. The text of the following decision is closely based upon the decision which I sent for promulgation on 7 June 2016. I had then a good recollection of the proceedings and a full note of the hearing upon which to draw in preparing the decision on these appeals.
Factual matrix
8. The principal claimant was born in 1932 and is the father of the other three claimants. He is now 85 years old and has a form of dementia which began at or around the time of a famine in North Korea in 1997, in which his wife and two of his children died.
9. The other three claimants are all adults: the second claimant was born in 1970 and is 47 years old, the third claimant in 1982 and is 35 years old, and the fourth claimant, born in 1984, is now 33 years old. The second claimant has a son born in 2007 who is a dependant in her claim, and who will be 10 years old this year. They are all citizens of North Korea and South Korea but none are British citizens.
10. When the family lived in North Korea, the principal claimant served as a soldier in the North Korean army, and the second, third and fourth claimants worked on a government farm.
11. The claimants left North Korea on foot in December 2008, leaving the second claimant’s husband behind in North Korea as a hostage. They do not fall to be treated as having been outside the Korean Peninsula for longer than 10 years. They went first to China. There, the second, third and fourth appellants worked to support the family and their father. They left China after 3 years in 2011 and travelled on to the United Kingdom where they claimed asylum. If returned to North Korea they risk persecution, up to and including the death penalty.
12. The claimants entered the United Kingdom on 13 June 2011 by ship, clandestinely at an unknown port, and claimed asylum the next day. The Secretary of State refused that application on 21 November 2011.
13. Medical evidence before the First-tier Tribunal concerning the principal claimant indicated that he had ‘dementia of some kind’ and memory loss problems, as well as difficulties with urinary incontinence. The principal claimant needed 24-hour care, presently provided by his adult children, the other three claimants. In November 2011, his consultant urological surgeon, Mr DG Ross, considered the principal claimant to have ‘significant cognitive impairment’ and that such had been the case for around 20 years, since the early 1990s, probably before the famine and the death of his wife and two of his children.
Refusal letter
14. In her refusal letter of 21 November 2011, the Secretary of State relied on KK and others and treated the claimants as citizens of both North Korea and South Korea. If returned to South Korea, the Secretary of State considered that there would be adequate treatment for the principal claimant’s health difficulties. She had regard to the healthcare available in South Korea, and to evidence from the World Health Organisation (www.who.int) which indicated that
(a) the Hanawon centre in South Korea was accustomed to dealing with medical issues for North Korean defectors and operates a clinic during the Hanawon orientation period
(b) that former North Korean migrants in South Korea received government-funded health care assistance and subsidies for treatment at local hospitals, including special subsidies for healthcare for the disadvantaged; and that
(c) many North Koreans required – and received – fully funded continuous medical treatment for up to 5 years after their arrival in South Korea.
15. The Secretary of State also relied upon a Country of Origin Information Service request of 10 February 2010 indicating that the number of patients with dementia was increasing in South Korea and that Seoul City had ‘an integrated system for prevention, treatment and protection of patients suffering Alzheimer’s disease’ with free dementia check-ups for those over 60 and 25 dementia support centres in each district. More than 70% of those with the disease were over 80, due to the increased average life expectancy in Korea. The report stated that
“The patients can receive high quality medical services at geriatrics hospitals such as the Seoul Bukhu Geriatric Hospital, Seoul Metropolitan Seobuk Hospital and Yangcheon Medical Center, which is currently under construction…In addition, the City will certify more daycare centres for the elderly and extend their service hours to provide better care for senior citizens, including the Alzheimer’s patients.”
16. The Secretary of State considered that appropriate psychiatric facilities were available in South Korea and that the difference in treatment between the support available in the United Kingdom and in South Korea was not at a level which engaged Article 8(1) of the ECHR. Both within and without the Rules, the Secretary of State refused leave to remain on human rights grounds.
First -tier Tribunal decision
17. On 21 May 2012, the First-tier Tribunal Judge dismissed the Refugee Convention and humanitarian protection appeals. Although there was a risk of persecution in North Korea, the claimants were required both under the Refugee Convention and the Qualification Directive to show that they were at risk of persecution in all countries of which they were a citizen. He was satisfied that the claimants would not suffer persecution or serious harm in South Korea if returned there. The principal claimant was 80 years old when this appeal was decided in the First-tier Tribunal.
18. The First-tier Tribunal Judge allowed the appeal under Articles 3 and 8 ECHR, but without evaluating the country evidence relied upon by the Secretary of State. He considered that removal of the principal claimant to South Korea would lead to the principal claimant suffering inhuman and degrading treatment during the Hanawon orientation phase of the South Korean procedure for North Korean migrants. In the alternative, the Judge considered that the principal claimant would be ‘required to spend a compulsory period of between 60-75 days to attend [Hanawon] classes regarding life in Korea [which] will be a disproportionate interference with his right to physical and moral integrity’. The First-tier Tribunal decision did not engage with the reasoning in the Secretary of State’s refusal letter and the evidence relied upon therein, concerning the available medical, and in particular dementia, treatment in South Korea, both during and after the Hanawon phase.
19. The decision in relation to the second, third and fourth claimants depends entirely on their father’s condition and how Hanawon orientation will affect him. The First-tier Tribunal Judge considered that Article 8 ECHR private and family life still existed between all four claimants because they had been through a lot together: the loss of the principal claimant’s wife, the mother of the other claimants, in 1997; the deterioration of the principal claimant’s health and the work on farms by the other three claimants so that they could escape; the three-month sea journey from China to the United Kingdom and the adult children’s continuing care for their father in the United Kingdom.
20. The Judge did not consider any section 55 Borders, Citizenship and Immigration Act 2009 issues in relation to the second claimant’s minor child. There does not appear to have been any evidence advanced concerning private life between the members of this family and other people in the United Kingdom: the family life relied upon is self-contained within the family itself. Nor is there any evidence tending to show that the best interests of the second claimant’s child lie otherwise than with the rest of the family. The child came to the United Kingdom in 2011 when he was 4 years old, and is now 10 years old.
21. The appeals of the second, third and fourth claimants, the principal claimant’s adult children, were allowed on the basis that the second claimant was the principal claimant’s main carer, but that she had a young child, and was reliant on her brothers, the third and fourth claimants, to assist her in caring for her father. To leave the principal claimant, whom the Judge found to need 24-hour care, on his own in the United Kingdom was considered to be a disproportionate interference with their family life, balanced against the legitimate public end of fair and firm immigration control.
Appeals to the Upper Tribunal
22. On 30 May 2012, the Secretary of State appealed against the First-tier Tribunal decision, arguing that no background material had been identified to establish a real risk of ill-treatment or inhuman or degrading treatment during the Hanawon ‘life in Korea’ classes which the principal claimant would be expected to undergo. The Secretary of State also argued that there was no evidence that North Koreans were persecuted in South Korea, but given the Judge’s finding on that point, this particular ground was otiose.
23. That application was considered by Designated Judge Peart on 13 June 2012 and permission granted, on the basis that it was arguable that the First-tier Tribunal Judge had erred in law in making findings with regard to the principal claimant and available medical treatment in South Korea which were unsustainable in terms of any authority or background evidence and that, in allowing the principal claimant’s appeal, and those of his adult children, the Judge’s decision was arguably perverse.
24. On 6 June 2016, the claimants also appealed, but it seems that the cross-appeal had not been linked to the file when the Designated Judge considered the Secretary of State’s appeal. The basis of the claimants’ appeal was that the First-tier Tribunal had erred in dismissing the claimants’ appeals on asylum and humanitarian protection grounds on the basis that citizenship of South Korea was available to them and in following and applying the country guidance as it then stood in KK and others. There is no cross-appeal on section 55 grounds in relation to the second claimant’s minor child, who has been in the United Kingdom for 6 years, since the age of 4. No reason why he should not return to South Korea with his family members is advanced and I have not been asked to consider that question.
25. Designated Judge Peart reissued his grant of permission, giving permission also on the cross-appeal. The appeal was then stayed pending the guidance in GP & others.
26. Following the decision in GP and others, the claimants were given the opportunity to make further submissions on their cross-appeals, and those arguments, recorded in Mr O'Ryan’s skeleton argument, I treat as the grounds of appeal on the cross-appeals. Mr O'Ryan argued the claimants’ cross-appeals in two ways:
(1) In relation to the principal claimant, he relied on paragraph 127(7) of GP & others, which stated that it remained open to individuals to establish risk factors specific to them and which would bring them within the Qualification Directive 2004/83/EC or the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (as amended). In this case, the principal claimant was severely cognitively impaired, deaf, incontinent of urine, and needing 24-hour supervision. The Hanawon process would, on that basis, amount to inhuman and degrading treatment contrary to Article 3 ECHR.
(2) In relation to all the claimants, Mr O'Ryan sought to reopen the ‘effective nationality’ point in the Nottebohm case, relying on Secretary of State for the Home Department v SP and others (North Korea) [2012] EWCA Civ 114 on 16 February 2012, at [32] in the judgment of Lord Justice Maurice Kay:
“32. It follows from what I have said that I would dismiss the Secretary of State's appeals, no legal error having been identified in the determination of the Tribunal. I should add that Mr Manjit Gill also sought to run an alternative argument in his skeleton argument. It is to the effect that, in international law, South Korea is not entitled to claim North Koreans as its own nationals simply by reference to its refusal to recognize North Korea. If this is right, no question of South Korean nationality arises and the appellants are entitled to refugee status because of their well-founded fear of persecution in North Korea. In the circumstances, it is not necessary to address this new point which, notwithstanding its implications, was only briefly canvassed in the 23 page skeleton argument.”
27. Mr O'Ryan relied on, and adopted, the argument of Mr Gill recorded therein as undecided by the Court in SP. He sought to challenge the reasoning in GP and others in this respect, and to argue that for these claimants, South Korean citizenship was not an effective nationality.
Submissions
28. For the claimants, Mr O'Ryan relied on his skeleton argument and repeated his contention that the quasi-detention in Hanawon centres was itself degrading treatment, arguing that no detailed reasoning was required to enable the First-tier Tribunal Judge to conclude that detention in those circumstances of an 80-year old man with the principal claimant’s physical and mental difficulties was a breach of Article 3 ECHR. He contended that the First-tier Tribunal’s reasoning was adequate in all the circumstances. The claimant’s Article 3 case was made out and the Secretary of State had not challenged the findings in relation to the other three claimants. Mr O'Ryan sought to argue (although it was not in his grounds) that North Korean migrants in South Korea should be regarded as a particular social group since this process was only applied to them, and not to other South Koreans.
29. Mr O'Ryan further contended that the Upper Tribunal had been wrong in both KK and others and GP and others on the Nottebohm ‘effective nationality’ question. South Korean nationality was not effective nationality for North Koreans who did not wish to return and live in South Korea. These claimants could not be required to go to South Korea where they had never lived. They knew nothing of South Korean ways: the cultural perspective there was entirely different from that of North Korea.
30. Mr O'Ryan did not rely in his submissions on section 55 in relation to the second claimant’s child. The cross-appeals by the claimants do not raise any section 55 issue.
31. For the Secretary of State, Mr Norton did not seek to argue that the claimants should be returned to North Korea: he accepted that they are at risk of persecution there. Indeed, the Secretary of State has accepted that risk throughout. He relied on GP and others at [101]-[103] in relation to the question of ‘effective nationality’, which should be regarded as settled law. There was no error of law by the First-tier Tribunal in following the guidance given by the Upper Tribunal on the Nottebohm question.
32. Mr Norton also relied on points (6) and (7) of the guidance given in GP and others:
“(6) Applying MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289, North Koreans outside the Korean Peninsula who object to return to South Korea must cooperate with the United Kingdom authorities in seeking to establish whether they can avail themselves of the protection of another country, in particular South Korea. Unless they can demonstrate that in all of the countries where they are entitled to citizenship they have a well-founded fear of persecution for a Refugee Convention reason, they are not refugees.
(7) If they are not refugees, it remains open to such persons to seek to establish individual factors creating a risk for them in South Korea which would engage the United Kingdom’s international obligations under the EU Qualification Directive or the ECHR.”
33. Mr Norton contended that the claimants here had not produced evidence to demonstrate that they could not avail themselves of South Korean nationality, and that the evidence before the First-tier Tribunal did not establish ‘individual factors’ creating a humanitarian protection or human rights risk to them, or any of them, in South Korea.
34. I reserved my decision. I will deal first with the Secretary of State’s appeal, and then with the cross-appeals.
Secretary of State’s appeal
35. The question of any error of law must be considered on the basis of the evidence which was before the First-tier Tribunal when this appeal was decided, and in the light of the country guidance as it then stood. The First-tier Tribunal Judge did not have the advantage of the fuller consideration of the Hanawon process in GP & others. The Secretary of State’s challenge to the Article 8 ECHR human rights decision must succeed with the help of KK and others alone at the material error of law stage, although if the decision is reopened, the later country guidance decision in GP and others becomes relevant.
36. I am bound to have regard to the provisions of part 5A of the Nationality, Immigration and Asylum Act 2002 (as amended) when considering what weight to give to private life considerations.
37. It is not clear to me what evidence, other than the assertions of the claimants, was relied upon by the First-tier Tribunal in concluding that there would be no medical support for this unwell elderly man during the Hanawon orientation. It appears that he has been unwell since the early 1990s, and that he spent several years in China, as well as many years in North Korea, in this state of health before coming to the United Kingdom. The circumstances when a finding of fact may be an error of law were identified in the judgment of Lord Justice Brooke in R (Iran) & Ors v Secretary of State for the Home Department [2005] EWCA Civ 982 at paragraph 90:
“90. It may now be convenient to draw together the main threads of this long judgment in this way. During the period before its demise when the IAT's powers were restricted to appeals on points of law:
1. Before the IAT could set aside a decision of an adjudicator on the grounds of error of law, it had to be satisfied that the correction of the error would have made a material difference to the outcome, or to the fairness of the proceedings. This principle applied equally to decisions of adjudicators on proportionality in connection with human rights issues;
2. A finding might only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence.
3. A decision should not be set aside for inadequacy of reasons unless the adjudicator failed to identify and record the matters that were critical to his decision on material issues, in such a way that the IAT was unable to understand why he reached that decision.
4. A failure without good reason to apply a relevant country guidance decision might constitute an error of law.”
38. I find that the First-tier Tribunal Judge failed to engage with the evidence in the refusal letter, all from sources in the public domain, as to the nature of medical support for the principal claimant’s health problems in South Korea. The claimants bore the burden of proof that the Secretary of State was in error, but there is no record of any rebuttal evidence being advanced by them. The evidence mentioned in the Secretary of State’s refusal letter, which is all in the public domain, indicated that good medical support would be available to the principal claimant both during the Hanawon process and for at least 5 years thereafter. The Judge’s failure to have regard to the evidence of the World Health Organisation and the other cited sources is irrational and/or perverse.
39. I therefore must set aside and remake this part of the decision and I will do so after considering the cross-appeals.
Claimants’ cross-appeals
40. Having applied KK and others, it was unarguably open to the First-tier Tribunal Judge to treat the claimants as citizens by birth of both North Korea and South Korea. It would have been an error of law not to do so, failing cogent evidence to indicate that the country guidance was wrong. GP and others confirmed that analysis.
41. The claimants’ arguments that KK and others should not have been applied, nor that South Korean citizenship was not ‘effective nationality’ (the revived Nottebohm contention) are unarguable. The country guidance decisions settled the Nottebohm ‘effective nationality’ point and there is no error by the First-tier Tribunal in following that.
42. As regards the reliance in the cross-appeals on the principal claimant’s health problems, he and his representatives did not bring to the First-tier Tribunal any further evidence about the available support for his difficulties during the Hanawon orientation process or thereafter, to challenge the international evidence set out in the refusal letter, all of which was in the public domain, concerning medical treatment in South Korea, particularly within, and for up to 5 years after, the Hanawon orientation.
43. Nor was there any evidence before the First-tier Tribunal to indicate that the principal claimant, or any of the claimants, would be ill-treated in the Hanawon centre, still less at the level of persecution or serious harm, as would be required for that part of the claimant’s claim to succeed.
44. The country guidance in GP and others in 2014 does not assist the claimants. By that date, there was in place between the United Kingdom and South Korea a Readmission Agreement enabling the documentation and return of North Koreans to South Korea, including a fingerprint check to verify whether they were, in fact, already recognised as South Korean citizens. At [114]-[115] in GP and others, the Hanawon orientation process was considered:
“114. Dealing next with the Hanawon reorientation training, the final hurdle before full citizenship rights and benefits are available to new South Koreans coming from North Korea, we note, first, that there is no evidence of any abuse or harm during the Hanawon phase; second, that the purpose of the training offered is benign; and third, that substantial housing, training and employment grants are made available once the Hanawon phase is complete, with a bonus payable once employment is obtained. Although migrants who have lived for a time in the West may find Hanawon’s training less necessary because they have some experience of capitalist society, all new South Koreans must spend three months in Hanawon.
115. Overall, therefore, it is right to say that it will normally take approximately seven months before a ‘new’ South Korean citizen from North Korea can move freely and benefit fully from South Korean citizenship and the financial and social support it offers. Those in the 'protection' procedure are treated differently from refugees because, despite the JIC examination and the Hanawon training centres, the South Korean authorities accept that all persons coming from North Korea are South Korean citizens.”
45. I find that the Article 3 claim in relation to the principal claimant’s health problems and the Hanawon orientation process is not made out, and that even accepting for these purposes that he has family life with the other three claimants, their claims are dependent on the Article 3 claim of the principal claimant, and stand or fall with his. The cross appeals cannot succeed and I discern no material error of law in the First-tier Tribunal’s decision in relation either to Article 3 ECHR or to the Nottebohm point.
46. I turn now to the remaking of the decision on the Secretary of State’s appeal, which challenges the Article 8 ECHR decision in the claimants’ favour. It has not been suggested that the claimants can bring themselves within the new Article 8 provisions of the Immigration Rules. As regards family life, it has not been suggested that the claimants would be removed separately. Their family life together would therefore continue when they were returned to South Korea together. There was no evidence advanced as to private life in the United Kingdom for these claimants outside their family circle.
47. I must now have regard to part 5A of the 2002 Act. These claimants entered the United Kingdom clandestinely and have never had leave to remain. Their entire presence in the United Kingdom, and any private and family life they have acquired while here, has been unlawful. Under section 117B(4) of that Act, such private life as these claimants have acquired while unlawfully in the United Kingdom must be given little weight.
48. There remains the question of Article 8 ECHR outside the Rules. Does the evidence before the Upper Tribunal indicate Nagre exceptional and compelling circumstances? I do not find that it does. There is medical support in South Korea of a very high standard, according to the international evidence relied upon in the refusal letter, including during the Hanawon orientation process.
49. Unfortunately, due to the conditions in North Korea, many if not most of those North Koreans who reach South Korea and enter the Hanawon process are in poor health, and the evidence is that South Korea provides for such migrants generous and long lasting healthcare and support, including dementia support, all of which is free at the point of delivery for up to 5 years.
50. The claimants have produced no rebuttal evidence, in particular no evidence of deterioration of the services described in the refusal letter. On that basis neither Article 3 nor Article 8 ECHR avails these claimants and their appeals must be dismissed.

DECISION
51. For the foregoing reasons, my decision is as follows:
The making of the previous decision involved the making of an error on a point of law. I set aside the previous decision. I remake the decision by dismissing the claimants’ appeals on all grounds.

Date: 28 February 2017 Signed: Judith AJC Gleeson Upper Tribunal Judge Gleeson