Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04493/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 19th April 2016
On 14th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Miss Helen [A]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Andrew Alexander (Counsel)
For the Respondent: Mr J Parkinson (HOPO)

DECISION AND REASONS
1. This is an appeal against a determination of First-tier Tribunal Judge V Jones, promulgated on 7th July 2015 following a hearing at Birmingham on 12th July 2015. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

The Appellant
2. The Appellant is a female, a citizen of Eritrea (claimed) and was born on 5th January 1991. She has two children, [NY] (born September 2013) and [DD] (born September 2014). She appealed against the refusal of her application to remain in the UK as a refugee and the refusal of her claim for humanitarian protection under paragraph 339 of HC 395. The refusal letter is dated 27th February 2015.
The Appellant's Claim
3. The Appellant's claim is that when she was young she and her parents moved to Ethiopia, as a 1 year old child, and this was because of her father's work. They then returned back to Eritrea. There her father was arrested and imprisoned for being a member of a political party opposed to the government. She and her mother then left Eritrea illegally for Sudan and stayed there and her mother worked illegally. She died in Sudan in 2006. The Appellant married her husband in Sudan on 21st May 2009. There are no marriage documents. Subsequently they left for Libya and from there on a lorry to Italy where she claimed asylum. Their application was rejected. From Italy she went through to France and from France to the UK where she was apprehended by Immigration Officers on 12th August 2013. She then claimed asylum. She claims to have a well-founded fear of persecution if returned to Eritrea because of her imputed political opinion, given her association with her father, who was a member of the Gebha Party which is opposed to the government. Political opposition is not tolerated in Eritrea.
The Judge's Findings
4. The judge observed how the Respondent had not accepted that the Appellant was an Eritrean national because she could not name Eritrean customs and festivals, and the dishes that she named with respect to food were Ethiopian dishes, and she could give no examples of typical Eritrean food. She knew no names or geography of Eritrea. There are also discrepancies in the Appellant's account of where she had lived and during what ages. The judge set out these matters at paragraphs 15 to 16 of the determination. The judge observed, however, that the most significant area of concern was the Appellant's answers about the language she spoke. She said she did not speak to her parents in their native language of Tigrinya, and this was because she had left Eritrea at a very young age, but this was difficult to comprehend (paragraph 17). In fact, the Appellant wrote to the Ethiopian Embassy on 16th April 2015 to ask if she could apply for Ethiopian nationality (paragraph 18).
5. The judge concluded that the Appellant's evidence lacked credibility. Her account of the time she spent in Eritrea and what age differed between the two interviews and differed again at the hearing. She was also inconsistent as to whether she left Eritrea in 1997 and had gone to Sudan or gone back to Ethiopia (paragraph 20). The judge also observed that the Appellant did not speak Tigrinya and this was the most significant part of the case (paragraph 23). The Appellant was moreover refused asylum with her husband in Italy (paragraph 25). Most importantly, however, as far as the political aspect of the claim was concerned, the judge observed that even if the Appellant's father was Eritrean and had been imprisoned for political opposition, "on her own evidence the only information the Appellant has about her father is that he was in a political party opposed to the government and was in prison" (paragraph 26). This did not expose the Appellant to any risk of persecution.
6. Finally, the judge gave consideration to the Appellant's two children. Article 8 of the ECHR was applied. It was noted that the Appellant had a husband. The judge concluded that,
"the Appellant has been in the UK a relatively short time and has continued a family life here while her immigration status was precarious. One of her family members is settled here. Her husband is awaiting his own appeal against refusal of an asylum claim. Her children were born here but have no leave to remain in their own right" (paragraph 30).
In the circumstances, the judge went on to say that he would "attach little weight to her family life here" (paragraph 30).
7. As far as Section 55 of the BCIA 2009 was concerned, the judge had regard to the "best interests of the children", and observed that "the children have no independent life to remain in the UK and are too young to have developed a private life here" (paragraph 31).
8. The appeal was dismissed.
Grounds of Application
9. The grounds of application state that the judge had failed to give due regard to Section 55 BCIA given that it had been found that the children had no place to return to in their country of origin and no income. In these circumstances, the children's "best interests" could not be served by removing them with the parents.
10. On 28th July 2015, permission to appeal was granted on the basis that it was arguable the judge had not properly considered the best interests of these very young children under Section 55 of the 2009 Act because the children would be returned to their mother to a country where they will have no home or income.
Submissions
11. At the hearing before me on 19th April 2016, the Appellant was represented by Mr Andrew Alexander of Counsel, and he submitted that the "best interests" of the children to remain in the UK had already been accepted. In the circumstances, it was not correct for the judge to then conclude that the children could go with the parents to the country of origin. Mr Alexander submitted that this was clear from the judge's observation that,
"whilst it is submitted that their best interests would be served by remaining in the UK rather than being returned with their mother to a country where they have no home and no income, I find any such interests are outweighed by the fact that their mother entered the country with no legitimate claim to asylum or humanitarian protection" (paragraph 31).
Second, Mr Alexander submitted that in the case of ZH (Tanzania), it had already been accepted that an appalling immigration history by the mother could not be visited upon the interests of the children, and there the appeals of the children were allowed.
12. For his part, Mr Parkinson submitted that the children were 2 years and 1 year old and their proper place was with the parents, and in particular the mother. The better example here was not ZH (Tanzania) [2011] UKSC 4. The better example was Zoumbas [2013] UKSC 74, where the children were British by birth, and had actually been resident for a far longer time in this country, than these two children of under 2 years of age, and yet it was found that because they had developed no independent life of their own, their proper place was to go with their mother back to their country of origin. Second, it was not true, as Mr Alexander had submitted, that the judge had accepted that the children's best interests "were served by remaining in this country". What the judge was referring to was the fact that this is what had been "submitted" (at paragraph 31). It was not accepted as such by the judge.
Reply
13. In his reply, Mr Alexander submitted that it was not in issue whether the judge found the Appellant's mother to be credible or not credible. What is in issue was that she was being returned to a country where she had no home and no income. In these circumstances, the children could simply not have their "best interests" served by being forced to accompany their parents to such a country. Section 55 BCIA 2009 was plainly being violated. The judge had engaged in no substantive consideration of this issue.
No Error of Law
14. I am satisfied that the making of the decision by the judge does not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows. First, this was the appeal of the Appellant mother, Miss Helen [A]. The judge did not find her to be credible on any matter. Those findings are unassailable.
15. Second, the judge did give consideration to the position of the children at paragraphs 30 to 31. In this respect, the judge observed that the Appellant was not alone, but had her husband with her, and he had his own independent appeal before the immigration authorities. The judge also observed that the children were born here but have no leave to remain in their own right (paragraph 30). Thereafter, it was firmly recognised that the position of the children in terms of their "best interests" is a matter that requires "primary consideration" (paragraph 31). This shows the judge having understood the legal import of this provision perfectly clearly.
16. Third, thereafter, the main issue was whether the children had an independent life of their own, such that they should be allowed to remain here on the basis of their "best interests". Although the case of ZH (Tanzania) has been referred to me, the better authority in these circumstances, is Zoumbas [2013] UKSC 74, because there the children, although British born, were not much older, but had no independent life of their own, and the Supreme Court held that in these circumstances, the children should accompany the parents back to their country, in this case Ethiopia, where their "best interests" would be adequately served because the family unit would be retained intact and not separate. In the circumstances there is no error of law.
Notice of Decision

There is no material error of law in the original judge's decision. The determination shall stand.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 13th September 2016