Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03007/2013

THE IMMIGRATION ACTS

Heard at Glasgow
Determination promulgated
on 15 November 2013
on 9 December 2013

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

[W X]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr A Devlin, Advocate, instructed by Latta & Co, Solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1) The appellant is a citizen of China, born on 9 October 1984. He sought asylum on arrival in the UK on 16 October 2001. His rights of appeal against refusal were exhausted by 2 September 2003. He made further representations on 3 June 2010, refused on 15 March 2011, and again on 27 April 2011, based on Article 8 of the ECHR.
2) The appellant’s wife is another Chinese citizen, a failed asylum seeker, born on 5 May 1989. They have a son, born on 9 November 2012.
3) The appellant appealed to the First-tier Tribunal against the respondent’s further decision of 18 March 2013. He argued his claim under the Refugee Convention and under Articles 3 and 8 of the ECHR.
4) By determination dated 13 June 2013 First-tier Tribunal Judge McGrade dismissed the asylum claim, which was based on a connection to Falun Gong through the appellant’s father. That disposed also of the Article 3 claim. The judge noted that the appellant had recently married and that he and his wife had a child, almost 7 months old. Leave granted to the appellant’s wife was limited to a period to allow for the outcome of the appellant’s current proceedings, and was due to expire on 26 June 2013. While there had been delay by the respondent in dealing with the application, which was relevant, and the appellant had strengthened his ties with the UK during that time, the delay began with the appellant failing to report, and ran on after refusal of his asylum claim as being without foundation. Finally, at paragraph 39, the judge said:
The appellant and his wife are both citizens of the People’s Republic of China and will return to a country with which they are both familiar. Their child is very young and will accompany them there. In those circumstances, I do not consider removal is disproportionate.
5) The appellant applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal, arguing that the judge failed to consider the best interests of the appellant’s child as a primary consideration, and failed to take account of submissions “… relating to the impact of the respondent’s legacy scheme on the potential existence of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes in terms of EB (Kosovo) [2008] UKHL 41 …”.
6) The First-tier Tribunal refused permission to appeal. The appellant renewed his application to the Upper Tribunal, maintaining that the determination made no findings on the child’s best interests and left out of account whether the child would have a better life in Scotland or in China, and that a dysfunctional system of immigration control significantly reduced the weight to be given to the State’s interest in removal.
7) An outlined submission was filed for the appellant. This argues firstly that the interests of the child should be treated not as only a primary consideration but as the primary consideration. The next argument is that the Secretary of State’s mechanisms for dealing with outstanding claims demonstrate a “closed, secretive and defensive culture” and a “dysfunctional system”. The conclusion proposed is that in failing to deal properly with the appellant’s Article 8 claim in respect of the position of his child, and in failing to deal properly with the issue of delay, the judge erred in law, and on a proper assessment of Article 8 the appellant should succeed.
8) The Presenting Officer indicated at the outset that he would concede that the determination failed to deal adequately with the best interests of the child, but the case should be decided afresh on the evidence which was before the First-tier Tribunal, and the appeal should again be dismissed.
9) Mr Devlin, who is not the author of the grounds of appeal or of the written submission, did not adopt the argument that the best interests of the child should now be treated as the primary consideration. Nor did he adopt the argument in relation to the legacy policy as set out in the written submission. He argued that in terms of EB (Kosovo) the conclusion that the appellant ran a dysfunctional system which gave rise to unfair and unpredictable results could be reached by a different route. The requirements of the Immigration Rules are not in themselves a legitimate aim. Article 8(2) requires that there be no interference with Article 8 rights except such as is “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country for the prevention of disorder or crime, for the prevention of health or morals or for protection of the rights and freedoms of others”. In a case such as this there can be no other purpose in play than the economic well-being of the country. The jurisprudence of the European Court shows that there must be identified a pressing social need in order to limit the right to family and private life. The written submission was relevant to show showed problems in the system in dealing with outstanding claims and removals. There was a lack of clarity and expedition due to poor supervision and inadequate funding. The choice of how to allocate resources must be relevant to the issue of whether there was a pressing social need. If the state did not allocate the resources to operate an efficient system, that indicated the state’s view of the significance of the need. The State’s approach to old claims and to pending removals devalued the considerations of immigration control. The error of law was not so much failure to address the arguments put to the First-tier Tribunal as failure to give any significance to delay as diminishing the Secretary of State’s side of the balance. The argument, as so developed, was not subject to any adverse authority of the Tribunal or the court. Applying the correct approach in this case led to an evaluation not only of the best interests of the child. The interests of the parents also had a part to play, even if a secondary one. The appellant and his wife have both spent a considerable time in the UK and have built up private and family life here. Mr Devlin suggested (rather faintly) that in order to reach a fresh decision, a further hearing might be fixed, to lead evidence of the likely effects of return on the child, and to make a comparative analysis of the child’s prospects in the UK and in China. However, he said that even without further evidence removal should be held to be would be disproportionate.
10) There has been no application, as required by the Procedure Rules and by Practice Directions, for admission of any further evidence, and no indication of what evidence might be offered.
11) The Presenting Officer said that the determination erred in failing to consider the best interests of the child, and that a fresh decision was required. That should be on the basis of the evidence placed before the First-tier Tribunal, and the outcome should again be to dismiss the appeal. It is well known that there are difficulties in enforcing removals, both generally, and to China in particular. That by itself did not diminish the public interest in immigration control. There are general considerations relating to effective and consistent operation of immigration control, not simply an issue of economic well-being – Huang [2007] UKHL 11 at paragraph 16. Within the concept of the economic well-being of the country there were issues of access to public services, such as health and education, without entitlement, which was not to be encouraged. There was no delay of enforcement or decision-making in this case so as significantly to diminish the weight to be given to immigration control. It remained for the appellant to show that there was significant interference with rights to respect for private and family life. The child is an infant who can have no significant links outside family and home. The Secretary of State fails to meet aspirations for enforcement and removal, but lack of compliance in this case is not the fault of the Secretary of State. The appellant gave a ludicrous explanation for his initial failure to comply with the asylum appeal process, showing that he arrived in the UK intent on remaining in the long term, without any legal basis. He remained from 2003 to 2010 with no application outstanding. That all counted against him. He and his wife had no legitimate expectation of remaining. There was no circumstances sufficiently strong either in the interests of the child or otherwise so as to diminish the public interest in enforcing immigration control. There was no evidence of how the child’s best interests might be served by remaining in the UK. There was no suggestion that is other than a normal infant with as yet no links outside the home. This was not a case where there would be a flagrant breach or a complete denial of the Article 8 rights.
12) Mr Devlin in reply said that the test is not one of flagrant breach or complete denial, because this is a domestic case, and the only issue is proportionality, a balancing exercise. The appellant did not have to show that return to China was to a situation so desperate as to compel a decision in favour of the child. The balance simply had to turn in his favour in the particular context of the case. That context did not disclose only inefficiency or inaction by the Secretary of State, but deliberate choices on how to run the system, such that there could not be shown to be any pressing or important social need to be served by removal. Thus, in the balancing exercise the appellant needed to show only a lesser degree of prejudice to family and private life. The respondent failed to show that there was any social need or necessity in a democratic society for removal in such a case as this.
13) I reserved my determination.
14) I take this general guidance on what weighs on the state’s side of the balance from Huang, paragraph 16:
The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2). There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on.
15) This is not a case of crime, fraud or deception but there is a poor immigration history with a strong element of deliberately and persistently overcoming immigration controls. There must be some public interest in applying the rules, both generally and in this case.
16) There has been no delay by the Secretary of State to take this case out of the ordinary run of cases. It cannot be said that other appellants in a comparable position have been permitted to stay because decisions were made on their applications more promptly. An earlier decision on the appellant’s case could only have been more emphatically against him, not in his favour.
17) Except by the vaguest assertion that the child has better life prospects in the UK than in China, there has been no effort to show that his best interests are to remain with his parents in the UK rather than for the family unit to move to China.
18) I do not think it can be axiomatic that it is in the best interests of every Chinese citizen child in the UK to remain here rather than to move to China. Who knows? It may be difficult to predict any significant comparative advantage but it would have to be shown, and in the first place it is for the appellant to bring the necessary evidence.
19) The child in this case is now only one year old. The respondent has conceded error in the determination, but on the substance of the case about the child’s interests, to the very limited extent that such a case was put, there was little more that the judge needed to say, or even could have said.
20) There is no reason to think that removal to China is likely to have any significantly adverse effect on the appellant’s child. Unless the public interest in deciding immigration appeals according to the rules is to be reduced to nil, it is difficult to see any substantial reason why the scales might tip in favour of the appellant. I do not find that there would be interference with his rights or with the rights of any other family member sufficient to outweigh the public interest, including the general administrative desirability of applying known rules.
21) By concession of the respondent, the determination of the First-tier Tribunal is set aside. The following decision is substituted: the appeal is dismissed.

19 November 2013
Judge of the Upper Tribunal