Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/09133/2012
AA/09141/2012
AA/09142/2012
AA/09143/2012

THE IMMIGRATION ACTS

Heard at North Shields
Date Sent
On 14 May 2013
On 14 June 2013

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

DMF
GEF
DFE
PBF

Respondents

Representation:

For the Appellant: Mr D Johnson, a Senior Home Office Presenting Officer
For the Respondents: In person

DETERMINATION AND REASONS

1. The respondents are nationals of El Salvador. I shall refer to the respondents as "the appellants" as they were before the First-tier Tribunal and refer to the Secretary of State as the "respondent". The first appellant is the husband of the second appellant and father of the third and fourth appellant. The children were born in January 1996 and April 2006 respectively. The appellants had entered the United Kingdom on 30 March 2012 and were granted six months' leave to enter expiring on 29 September 2012. On 24 August 2012, the first appellant was served with enforcement papers on the grounds that he had employed verbal deception to enter the United Kingdom. On 22 September 2012, a decision was made to refuse to grant the appellants asylum. The appellants' subsequent appeal to the First-tier Tribunal (Judge Manchester) was dismissed on asylum, humanitarian protection and Articles 2/3 ECHR grounds but allowed under Article 8 ECHR. The Secretary of State appealed against that decision. There is no cross-appeal by the appellants in respect of the other decisions of the First-tier Tribunal.
2. Judge Manchester first considered Appendix FM of the Immigration Rules. He found that the conditions required by the Rules were not met and "accordingly the appellant has no right to remain in the United Kingdom on account of his right to family life and private life under the Rules." [85]. He then considered the application of Article 8 ECHR and found that the appellants would suffer disproportionate interference with their private and family lives if they were removed to El Salvador. The Secretary of State's first ground of appeal reads as follows:
"The Immigration Judge has allowed the appeal on Article 8 grounds. It is submitted that the Immigration Judge has erred materially in law. The appellants would be removed as a family unit, therefore there would be no breach of their family life Article 8 rights. It is further submitted the best interests of the children will always be served by being with their parents wherever they are located. It may be that the country situation has been affected by the natural disaster that occurred there however it is submitted this is inadequate to make their removal disproportionate. The appellants have lived in El Salvador in the recent past and the children have attended school there. The parents would be returning to their home country where they have spent their formative years and will be able to re-establish their livelihoods and support their children to reintegrate into society there."
3. Judge Manchester noted that the children would be "removed as a family unit with the appellant and his wife" [89]. The judge noted that the family had, since leaving El Salvador, lived for some time in the USA and then Sweden. The youngest child had been only 2 years old when she left El Salvador. However, the judge noted that "both children would [have been] exposed to El Salvadorian culture and the Spanish language through their parents." The judge went on to record that the family would return to "difficult living conditions," including "living in a part finished house." The judge noted that there have been a series of earthquakes in El Salvador in 2001 and also referred to evidence which indicated that "El Salvador remains unable, temporarily, to handle adequately the return of its nationals." [90]. He went on to discuss the 2000 earthquakes in greater detail at [91]. The judge found at [92] that there was "no evidence the appellant would be able to provide for his family's economic survival in El Salvador beyond the short term after their absence for such a long period ?" He considered that this would render the family "vulnerable".
4. Mr Johnson, for the Secretary of State, took issue with that finding. Considering the appellants' (failed) asylum appeal, the judge had noted that "they have made a profit on the sale of the house in the USA that they had placed in a savings account." It is not clear what had happened to that money or why it would not be now available to the appellants. The first appellant had supported his family in El Salvador before they had travelled to the USA.
5. The Upper Tribunal should hesitate before entertaining grounds of appeal which, prima face, appear to be nothing more than disagreements with findings made by the First-tier Tribunal Judge. However, I do find that there is substance in Mr Johnson's submission. It is not clear to me, having considered the determination and the evidence carefully, why Judge Manchester concluded that the first appellant would be unable to provide for his family in El Salvador. It is clear that the first appellant is an intelligent and resourceful individual who has maintained his family whilst living in the USA and also in Sweden and the United Kingdom. It is true also that the whereabouts of the proceeds of sale of the American house had not been made clear. In brief oral evidence which he gave at the Upper Tribunal hearing, the first appellant said that the money had all gone but I note that that evidence has been given against a background of negative credibility findings on the asylum appeal made by the First-tier Tribunal. It is curious that Judge Manchester did not believe what the first appellant told him regarding his asylum claim but appears to have accepted everything that the first appellant said about his impecuniosity and inability to provide for his family in El Salvador. I find that part of the determination to be inadequately reasoned.
6. There is also a more fundamental problem with the judge's reasoning regarding Article 8. Quite properly, the judge has applied Section 55 of the Borders, Citizenship and Immigration Act 2009 and sought to establish what are the best interests of the children as a primary consideration. It is unclear, however, why he has sought to rely upon ZH (Tanzania) [2011] UKSC 4 given that that case was concerned with the possibility of parents and children being separated from each other; there is no prospect of that happening in the present appeal, as Judge Manchester acknowledged. At [93] Judge Manchester found that:
"I conclude that it would not be in the best interests of the children and the daughter, PBF, in particular given her age to be removed at this time to El Salvador. Equally, I find that it would not be in the interests of the children to be separated from their parents by the removal at this time."
The judge made that finding notwithstanding the fact that at [89] he had found that, "the children would be removed as a family unit with the appellant and his wife?" His finding that the children should not be removed "at this time to El Salvador" [my emphasis] appears to arise out of doubts which the judge had regarding the "infrastructure and public services" of El Salvador [91] following the 2001 earthquakes, together with his doubts about the first appellant's ability to care for the family. I have already found that the latter finding was based on inadequate evidence and reasoning and I find that the judge's comments regarding the earthquakes in 2001 and the condition of the country's infrastructure approaches a finding that the children in this appeal would be exposed to conditions which would breach their Article 3 ECHR rights. Notwithstanding the difficulties that the country has faced since the earthquakes in 2001, the background material which was before the First-tier Tribunal does not come close to establishing such a level of risk. Ultimately, the judge appears to have concluded that the children would be better off living in the United Kingdom. In reaching that finding, I find that he has misunderstood the nature of the "best interests" test in Section 55. The application of Section 55 should not descend to a comparison of the material conditions in which children would live in the United Kingdom and in their country of national origin. If that were the test, then, given the living conditions in many of the countries from which asylum seekers come to the United Kingdom, it is likely that most appeals would succeed. I have no doubt that the children in the present appeal would have much easier access to services such as education and health in the United Kingdom rather than in El Salvador. However, that is not the point. I consider that the grounds of appeal are correct when it is stated that, "the best interests of the children will always be served by being with their parents wherever they are located." The children will be returning to the country of their nationality and will not be separated from their parents. Those facts could and should have constituted the beginning and the end of the Section 55 assessment in this instance; there was no need for the judge to make any comparison between conditions in El Salvador and the United Kingdom. By doing so, he erred in law.

7. I find that the judge has erred in law in allowing the appeal on Article 8 ECHR grounds and in his application of Section 55 of the 2009 Act in particular. I set aside his determination. I have remade the decision. I do not accept that the first appellant (who has given untruthful evidence to the First-tier Tribunal) has not retained at least part of the proceeds of sale of his former home. He is a resourceful individual who I believe will be able to access funds which will enable him to provide for his family in El Salvador. The best interests of the children will be served by their remaining with their parents. The appellants have been in the United Kingdom for a short period of time. They have provided no evidence which would suggest that their private or family lives would suffer disproportionate interference if they now returned to their country of nationality. The United Kingdom government is pursuing a legitimate aim in seeking to remove the appellants who have, without just reason, remained here without permission having employed deceit to enter the country. I find that the appeals should be dismissed on all grounds.

DECISION
The determination of the First-tier Tribunal is set aside. I have remade the decision. The appeals are dismissed on asylum grounds. The appeals are dismissed on human rights grounds. The appellants are not entitled to grants of humanitarian protection.

Signed Date 2 June 2013

Upper Tribunal Judge Clive Lane