Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08309/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 July 2016
On 4th October 2016

Before

UPPER TRIBUNAL JUDGE STOREY

Between

AFRIM [M]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Collins, Counsel, instructed by Sentinel Solicitors
For the Respondent: Mr T Wilding, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Albania. First-tier Tribunal (FtT) Judge Kanagaratanam in a decision sent on 11 May 2016 dismissed his appeal against a decision made by the respondent on 10 February 2016 refusing to grant him asylum. The appellant's grounds of appeal against this decision were that he feared persecution from another family with whom his family had conducted a blood feud. He also invoked his Article 8 rights. When the case came before the FtT Judge it was conceded that the appellant's appeal was only being maintained on Article 8 grounds, and the judge had before her, inter alia, a report on the appellant's two children (aged 9 and 10) by Christine Brown and an expert report from Miss Miranda Vickers.

2. The appellant's grounds of appeal to the UT were essentially that the judge had erred by (i) not adequately addressing the issue of whether it would be reasonable to expect the two children to leave the UK; (ii) by requiring children to show "exceptional circumstances"; by erroneously relying by analogy on the Article 3 health case of N v UK [2008] ECHR 453, thereby overlooking that the children would have serious difficulties in adapting to life in Albania where they had never lived and when they do not speak Albanian; and (iii) failing to give proper consideration to the independent social worker's report of Christine Brown. The grounds also contrasted the judge's cursory treatment of the relevant issues with the large volume of evidence that had been submitted relating to the children's welfare. In granting permission FtT Judge Pooler considered it arguable that the judge had misdirected herself in not bearing in mind the Article 8 rights of the wife and children and the guidance given in PD and Others (Article 8 - conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC).

3. I am unable to accept the appellant's submissions. First of all, I see no legal error in the judge's treatment of the issue as to whether, by virtue of the appellant's children being 'qualifying children', they could meet the requirement of s.117B(6) of the Immigration Rules that it was not reasonable to expect them to leave the UK. The judge properly identified this as a relevant requirement in [14] and [15] and in [20] the last of which states:
"I now consider the full report of Miss Christine Brown, the independent social worker and expert report of Miss Miranda Vickers and its addendum. A good deal of the report deals with the appellant's account of the circumstances while others deal with the expert's opinion based on her observations. I have been referred to several paragraphs of the report, all of which I have taken into account but must consider in the context of the immigration control. While it has been suggested that the two children may become fixated, and upon removal at a pivotal time into an unfamiliar society, may find it different from an environment in which they have already displayed a degree of success. I however consider the fact that that they are not going into a strange environment but into a cultural background in which several Albanian children. I consider the position of Treebhawon and others [2015] UKUT 00674 (IAC) relating to a family unit and the application of Section 117 but find that each case must turn on its own particular facts. In this instance for the reasons mentioned and having considered the fact that the children who have no medical issues would return with their parents to a country where there is a grandparent and surroundings familiar to their culture no hindrance to their development given the education available in Albania. Much emphasis has been put on the performance of the children in school which is no doubt good. However in addressing the overall question of reasonableness, I find that this in itself is not adequate unless there is evidence that they cannot access an education in Albania. I do not find it a necessary advantage for the appellant's children to assimilate to a culture in the United Kingdom. I also do not find it would largely disrupt their education or state of mind if they to return to their own cultural environment and extended family, and bearing mind the interests of immigration control as vested in the authorities together with the circumstances to which return to in Albania I do not find it disproportionate for these children to be removed with their parents to Albania. For these reasons this appeal cannot succeed."
4. I am satisfied that (notwithstanding the lack of clarity in the sentence ending "in which several Albanian children") in addressing this request the judge took account of all relevant factors. The points relied on in the grounds in support of the claim that he did not essentially voice disagreement with the judge's assessment rather than identifying factors overlooked or wrongly taken into account.

5. I see nothing wrong on the part of the judge in referring at one point to "exceptional" circumstances, since this was simply in the context of the judge accepting that if the children met the requirements of s.117B(6) of the NIAA 2002 as amended the appellant's appeal stood to succeed because their circumstances would therefore be capable of being ones that would make the refusal decision disproportionate. In any event, I do not consider that use of the word "exceptional" necessarily imports a legal test.

6. The judge can be criticised for seeking support "by analogy" from the N v UK case where the issue was the very different one of persons seeking to argue that they could not be expelled because they would be unable to access medical assistance in law their home country. However, I fail to see that an error involved had any effect on the judge's decision. The analogous fact relied on by the judge - that the country of origin (Albania) had a functioning education system which the appellants could access, was a relevant and important one both in assessing whether it was reasonable to expect the children to return to Albania and in assessing the related issues of their best interests and the proportionality of the appellant's removal together with his family. Given that the submissions before the judge relied significantly on the contention that the Albanian education system was poor, it was only to be expected that the judge should devote attention to that issue. The judge's assessment - that it was not only "functioning" but "of a reasonably high standard" was properly based on the background evidence as a whole and indeed that particular finding has not been challenged in the grounds.

7. The grounds allege that the judge failed to recognise that the children did not speak Albanian, but that was not in fact the state of affairs revealed by the evidence of the appellant himself before the judge. As recorded in [9], he and his wife would speak English to their children and speak in Albanian amongst themselves, and "[t]he children spoke a little Albanian to their grandmother". The children thus have some grasp of the Albanian language. What the judge did and was entitled to do was consider the issue of the children's integration into Albanian society by reference to the evidence that they would return with Albanian parents to their country of nationality and to a family situation where they had grandparents and cultural ties. That was a finding open to the judge on the evidence.

8. As regards the judge's treatment of the independent social worker's report, the first thing to observe is that this is not a case where a judge has failed to refer to a report at all. The judge refers to it expressly in [14] and in [20]. Further in [20] the judge engages with the contents of the report and the judge's observations upon it make clear that she was well aware that this report stated that return to Albania would be disruptive and distressing. It was entirely within the range of reasonable responses for the judge to assess that this report was not determinative of the issue before him, particularly because the social worker was considering the importance to the children of "present satisfactory structures" rather than the issue of whether the disruption and distress caused by removal would be short-term or long term. On the judge's findings, the children would be able to adapt without significant detriment to their welfare.

9. There was a very considerable body of documentary evidence before the judge. Whilst the judge did not refer to each and every item, he did identify key factors and pointed out in [6] - [7] that he took all of these into account.

10. I do not consider that the judge fell foul of the principle that in appeals of this kind where an appellant has a dependent wife and child, the Article 8 rights of the family unit as a whole must be taken into account. Not only did the judge note when referring to Treebhawan & Others [2015] UKUT (IAC) that he considered the position in it "relating to a family unit" (see [20]) but in an earlier paragraph the judge stated that she was "mindful of the fact that the appellant's children have a relationship with their cousin who is cared for by the appellant's wife" ([143]). As this reference indicates, the judge's perspective thorough was holistic. Indeed, so far as concerns the Article 8 circumstances of the family as a whole, what was of particular importance to the judge was that the children would return to Albania as a family unit. I do not consider that the judge's assessment was in conflict with any of the basic propositions set out in PD & Others.

Notice of Decision

11. For the above reasons I conclude that the judge did not materially err in law and the judge's decision to dismiss the appellant's appeal must stand.

No anonymity direction is made.

Signed Date 4thOctober 2016

Dr H H Storey
Judge of the Upper Tribunal