The decision


Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/07018/2013


Heard at Newport
Determination Promulgated
On 28 November 2013
On 23 December 2013


upper tribunal judge POOLE


(anonymity direction made)


For the Appellants: Ms L Fenney, Duncan Moghal Solicitors
For the Respondent: Mr Irwin Richards, Home Office Presenting Officer

1. The appellant, A S K is a female citizen of Malawi born 18 March 1978. She has a dependent daughter, M, born 28 April 2010.
2. The appellant’s immigration history shows that she originally arrived in the United Kingdom in October 2004 in possession of a visit visa. She apparently overstayed and eventually on 24 April 2012 she claimed asylum. That application was rejected by the respondent with reasons for refusal contained in a letter dated 12 July 2013. The appellant appealed that decision and on 3 September 2013 her appeal came before judge of the First-tier Tribunal Clarke. The appellant attended an oral hearing but was not represented.
3. The basis of the appellant’s claim was that she feared persecution in her home country because whilst in the United Kingdom she gave birth to a child who, she said, had been fathered by a person known as Lucius Banda who was visiting the United Kingdom but was a well-known politician and musician in Malawi. She feared reprisals as a result of their- relationship and the existence of her child with and by Mr Banda.
4. For reasons set out in the determination Judge Clarke did not find the appellant credible in the majority of her claim. Her appeal against the decision to refuse her asylum was dismissed as was her claim under Article 8 ECHR.
5. The appellant sought leave to appeal that decision under “compassionate grounds”. She repeated her fear of Lucius Banda and his supporters. She said it would be hard for her daughter to mix in a mainly Muslim country. She indicated she would suffer hardship because she was uneducated and the difficulties that she would experience economically in that country. Reference was also made to a fear (not disclosed before) of the wife of Lucius Banda.
6. The appellant’s application came before another Judge of the First-tier Tribunal who granted leave to appeal on 26 September 2013. In granting leave Judge Hemingway considered that it was arguable that Judge Clarke fell into error by not adequately dealing with the Article 8 claim. Hence the matter comes before the Upper Tribunal.
Matters Prior to the Hearing
7. In a document dated 14 October 2013 the respondent (via a response under Rule 24) opposed the appellant’s appeal submitting that Judge Clarke properly directed himself. In particular it is suggested in that response that the judge had properly concluded that the decision to return the appellant to Malawi would not be a disproportionate interference with her and her daughter’s Article 8 rights. The respondent also responds by indicating that Judge Clarke could not be faulted for making limited finding given the lack of credibility of the appellant.
8. At this stage the appellant instructed solicitors. On her behalf they produced a written submission emphasising the difficulties that the appellant would face by reason of her relationship with Lucius Banda. It was also suggested that Judge Clarke should have taken greater note of the poor performance of Malawi police.
The Hearing
9. In her submission Ms Fenney referred to the lack of reference to “long residence” in the determination. She referred to the submission she had lodged as set out above. The appellant would have a risk of return. Was there as sufficiency of protection and could she be relocated. Ms Fenney indicated that these were issues not fully dealt with in the determination.
10. Mr Richards emphasised that on behalf of the respondent the Article 8 point was adequately dealt with. The judge had clearly carried out the appropriate balancing exercise. He referred me to paragraph 79 of the original determination and to paragraph 81. The removal of the appellant would not be disproportionate and the judge had clearly taken full account of the appellant’s daughter with regard to the question of the best interests of the child.
11. As to risk on return under the Asylum claim Mr Richards emphasised that the judge had taken particular account of all the evidence and had made clear findings at paragraphs 60 and 61 showing what he had accepted and what he had not accepted. The issue of sufficiency of protection was not appropriate bearing in mind that the judge concluded that relocation elsewhere was available.
12. In reply Ms Fenney said that nothing had been concluded in the determination with regard to the best interests of the child and that the appellant would clearly be at risk.
13. Having considered the matter and taking into account the submissions made by the representatives I announced that I did not find any error of law in the determination that was material to the eventual outcome for the reasons now given I would dismiss the appeal.
14. Dealing firstly with the asylum claim and appeal. It is clear from the determination that Judge Clarke took considerable note of the evidence that was placed before him. At paragraph 57 he sets out fully what he should consider in assessing credibility. A reading of paragraphs 60 and 61 show exactly what the judge accepted and what he rejected. In each case a full explanation has been given. Having reached those conclusions the judge went on to consider risk on return and for the reasons set out, rejected the appellant’s claim. He considered the situation of sufficiency of protection at paragraph 65 but found, at paragraph 66, that internal relocation was open to the appellant.
15. I can find no error in law in the way that the judge dealt with the appellant’s claim in respect of risk on return to Malawi.
16. Looking now at the question of the human rights element of the appellant’s claim. This aspect was dealt with in paragraphs 70 to 81 of the determination. It may well be that the judge dealt with certain aspects very briefly. He was clearly conscious of the requirements to look at the “best interests of the child” in consideration of the appeal. Paragraph 77 deals with this aspect. Whilst this paragraph is fairly brief it could equally be said that the evidence before the judge was fairly sparse so far as the Article 8 aspects are concerned. However on the basis of the evidence the judge was perfectly entitled to reach the conclusions as he did with regard to welfare of the child and taking into account, as he did, the age of the child and the lack of any other family in the United Kingdom.
17. I am aware that there is a lack of mention in the judge’s determination of the period of time that the appellant has been in the United Kingdom. Of course the vast majority of that time has been spent in this country without leave and again the judge has taken into account such evidence that was placed before him. He was clearly conscious of the appellant’s time in the United Kingdom because of the references in paragraph 79 of the determination. I am satisfied that the judge correctly directed himself via the necessary steps in finding that the appellant’s removal from the United Kingdom would not be disproportionate. The judge had properly dealt with the balancing act that needed to be undertaken between the interests of the appellant (and her child) and the requirement of the respondent to properly consider the public interest.
18. For these reasons I find no error of law in the determination and the conclusions of Judge Clarke are upheld.
19. Appeals dismissed.
20. An anonymity direction was made by Judge Clarke and that will continue.

Signed Date

Upper Tribunal Judge Poole