Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07373/2013

THE IMMIGRATION ACTS

Heard at Glasgow
Determination promulgated
on 26 November 2013
on 19 December 2013

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

CHUAN QIANG HE
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr B Price, of Latta & Co, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1) The appellant is a citizen of China, born on 23 November 1989. He had leave as a student which was valid from 25 June 2009 until 29 December 2010. He did not apply for further leave nor did he leave the UK on the expiry of that period. He was encountered by police on 11 June 2013, detained and served with enforcement notices as an overstayer. He sought asylum on 17 June 2013. The respondent refused that claim for reasons explained in a letter dated 17 July 2013.
2) First-tier Tribunal McGrade dismissed the appellant’s appeal by determination promulgated on 23 September 2013.
3) The appellant applied for permission to appeal to the Upper Tribunal. His application narrates that he has a partner, also a citizen of China, with a separate asylum case. The respondent had sought to have the cases heard together, but the appellant’s representative applied to the judge before whom both cases were listed for them to be heard by separate judges. That application was granted, and so the matter came before Judge McGrade. (It is not apparent that there was any good reason for having the cases heard by separate judges; rather to the contrary, as although the asylum grounds were separate, the ECHR cases were inextricable.) Paragraphs 1 and 2 of the application for permission to appeal complain that the judge failed to take account of the amendments made to the appellant’s interview record regarding his knowledge of Christianity, and failed to have regard to his having lodged copies of his Chinese bible and his baptism certificate. Paragraph 3 notes that the judge found out “by method unknown” the [negative] outcome of the appeal by the appellant’s partner. The ground argues that the present decision in respect of family life was therefore “perverse and the judge has taken into account evidence he was not permitted to take into account. The situation at the time of the appellant’s hearing was that [his] partner had an outstanding asylum claim … this is a material error of law”. Paragraph 4 is that it was an error of failure to make a decision on or even to mention the best interests of the child involved in the case. (It is not said that any argument of substance was made on the best interests of the child.)
4) Following the grant of permission, the application now stands as the grounds of appeal to the Upper Tribunal.
5) In a Rule 24 response to the grant of permission the SSHD submits that the judge was entitled to conclude on the basis of the appellant’s lack of knowledge about his religion that he was not involved in a Christian underground church as claimed; that failure to mention the bible or baptism certificate is immaterial; and that taking into account the lack of success of the appellant’s partner in her appeal was not an error, because at the date of the hearing she had “no status” and as such her pending appeal was “unlikely to strengthen the appellant ‘s chances of success under Article 8.”
6) The appellant in turn has filed a skeleton argument, submitting further as follows. Ground 1: lack of reasoning for the finding that the appellant was not a Christian requires the decision to be set aside. Ground 2: failure to consider the Chinese bible and baptism certificate, along with the paucity of reasons for the finding that the appellant is not a Christian, require the decision to be set aside. Ground 3: noting of the determination in the appeal of the appellant’s partner was an error of taking into account evidence concerning a matter arising after the date of decision, and also shows procedural unfairness. Ground 4: even if the matter was not raised before the First-tier Tribunal the judge should have taken it as an obvious point. The judge was clearly aware of the child because the birth certificate was filed and the matter is noted at paragraph 41. Grounds 3 and 4 are said to establish that a fresh decision is needed on proportionality. The skeleton argument also includes a response to the Rule 24 notice, which relies on similar points. Finally, the argument submits that there have been 4 material errors of law going to the core of the claim which require a fresh decision, involving “significant time, updated evidence and the presence of a Mandarin interpreter” which should be carried out through a de novo hearing in the First-tier Tribunal.
7) Mr Matthews submitted as follows. Ground 1 – the judge reached his assessment in the round, giving adequate reasons. The determination properly explains why the appellant was not a persuasive witness. He said he attended churches not only in China but in Brixton and Glasgow, yet was unable to state which denomination of Christianity he followed. He contradicted himself over the source of information about his parents’ arrest (paragraph 26); the date of his parents’ arrest (paragraph 26); whether his parents had been released (paragraph 27); he attended church very rarely since coming to the UK, and only twice since moving to Glasgow in early 2010 (paragraph 28); he gave a dishonest explanation of what happened to his passport (paragraph 29); and he gave an incredible account of not knowing that he could claim asylum (paragraph 30). Those were sufficient reasons. Ground 2 – a judge need not refer to every item of evidence. The baptism certificate was partly illegible and established nothing significant. The copy bible established nothing at all, not even who it belonged to; a signature from “mother” was anonymous. The appellant relied also on a letter from a supporting witness who said he went to church with the appellant in London, but the witness did not attend or provide his current address, and this was another piece of evidence of little worth. Ground 3 – to refer to the outcome of the appellant’s partner’s case was not an error of considering evidence at the wrong date, nor was there any procedural unfairness. It was now accepted that the appellant’s partner failed in her appeal, and was refused permission to take it to the Upper Tribunal. The hearings should probably not have been separated in the first place, but in any event there was nothing in this which could lead to a better result for the appellant. Ground 4 – this was given much too high a value in the grounds. There was a section in the skeleton argument presented to the First-tier Tribunal about how to deal with the best interests of the child, but it comprised entirely extracts of case law. There was no evidence or submission about the actual best interests of the child in this case, so the omission of any reference from the determination was immaterial.
8) Mr Price in response said that Ground 1 disclosed not only inadequacy of reasoning, but failure to consider evidence. The appellant proposed certain amendments to his interview record, but that was overlooked. His case was not just that he was a Christian, but that his parents had been detained in China because they were Christian. The appellant explained at interview how he distributed leaflets in China, which he also mentioned in his statement provided to the First-tier Tribunal, and that that was also overlooked. The baptism certificate included a photograph which might readily have been assessed as that of the appellant. The judge had not analysed the appellant’s knowledge of Christianity as displayed at his interview at Q/A 179-191. Together with the oversights regarding his Chinese bible, his baptism certificate and his church attendance in London, these were such significant omissions that the determination should not stand. Grounds 1 and 2 by themselves required the asylum decision to be set aside. Mr Price had nothing to add to what is said in the grounds and skeleton argument on ground 3. I indicated to him that ground would not prosper. On Ground 4, Mr Price had a note of the submission made on behalf of the appellant in the First-tier Tribunal about the child. The submission was to the effect that this child was a dependant on the claim of the appellant’s partner, and that the appellant’s case should be considered on the basis that he might be returned himself, without his partner and child. It would not be in the best interests of the child to be separated from the appellant. That would be damaging to their relationship. It had also been submitted that there was a risk that the child would not be registered in China until a fine (or social compensation fee) is paid and as a result there would be no access to health care and education, which could not be in the best interests of the child. Mr Price accepted that the situation now is not that the appellant would be returned separately from the child, but that any return would be of the family as a unit; and he also accepted that there had been no reference to any background evidence to establish that the child might not be registered in China, or the alleged disadvantages following from that. He said however that there had been filed a copy of a country guidance case, in which relevant material might be found, although it was not referred to. There was enough in Grounds 1 and 2 for the determination to be set aside, if not in Grounds 3 and 4. Finally, Mr Price said that there is a pending country guidance case on Christians from China, and if there is error, it might be apt to delay any further decision until that case is reported.
9) Apart from my indication regarding ground 3, I reserved my determination.
10) The First-tier Tribunal determination more than adequately explains to the appellant and to any other interested reader why the evidence to support his asylum claim was found to be unpersuasive. Several good reasons are given. There was no need to recite or analyse each individual item of evidence offered, and none of the items now referred to require another conclusion. Production of a Chinese bible and a certificate of baptism takes nothing away from the reasons for rejecting the substance of the account designed to disclose risk of persecution in China.
11) Grounds 1 and 2 do not amount to more than re-argument of and insistence upon the appellant’s case, and do not justify the Upper Tribunal going behind the conclusions reached by the Tribunal of fact.
12) Ground 3 is misconceived. There is no reason why the judge was bound to reach a conclusion in ignorance of the highly relevant outcome of the case of the appellant’s partner. The point could not help the appellant anyway, as any fresh decision would be reached in the light of the negative outcome in her case. The approach of asking for separate hearings by different judges smacks of gaming the system, not of any genuine need for protection.
13) The grounds of appeal based on failure to deal with the best interests of the child border on the disingenuous. While they ask for “careful examination of all relevant factors” there is no mention of what these factors might be. There is no axiom that the interest of any Chinese citizen child in the UK must be better served by that child remaining in the UK than by returning to China. It is now apparent that return will be as a family unit, and will not involve separation of the child from the appellant. There is nothing in country guidance to support the vague and unsubstantiated contention that this child might be unregistered and deprived of access to health care and education. The ground is a matter of form but no substance.
14) The appellant has not shown any error such as to require the determination of the First-tier Tribunal to be set aside, and it shall stand.

27 November 2013
Judge of the Upper Tribunal