Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09685/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 3rd November 2016
On 11th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

Mavis [A]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss A Faryl of Counsel instructed by Duncan Lewis Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction and Background
1. The Appellant appeals against the decision of Judge Foudy of the First-tier Tribunal (the FtT) promulgated on 1st August 2016.
2. The Appellant is a female Ghanaian citizen born 11th June 1978. She entered the United Kingdom as a visitor in January 2004 and overstayed. She has two dependent sons born 7th March 2008 and 1st January 2010 respectively. Both were born in the United Kingdom but are not British citizens, the father of both boys was an illegal immigrant and has no contact with them and his current whereabouts are unknown.
3. The Appellant claimed asylum on 15th January 2015, and her claim was refused on 12th June 2015.
4. The Appellant appealed to the FtT pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). The FtT heard evidence from the Appellant and found her to be an incredible witness. The FtT found that the Appellant would not be at risk if returned to Ghana, and therefore her appeal was dismissed in relation to asylum, humanitarian protection, and Articles 2 and 3 of the 1950 European Convention on Human Rights (the 1950 Convention).
5. The FtT considered Article 8 of the 1950 Convention, and considered the best interests of the Appellant's sons, the elder of whom is autistic. The FtT found that it would be reasonable for both boys to relocate to Ghana with their mother, notwithstanding that the elder boy had spent over seven years in the United Kingdom.
6. The Appellant applied for permission to appeal to the Upper Tribunal on one issue only, that being Article 8 of the 1950 Convention. It was contended that the FtT had erred in finding that it would be reasonable for the children to relocate to Ghana because the FtT had failed to properly consider evidence, that being a letter from the head teacher of the school which both children attended. The head teacher stated that any move from the school would disrupt their learning, their emotional well-being, and risk any future progress they could make. The elder child was described as very vulnerable and needing stability and consistency. It was contended that this evidence was material, and the fact that it had been ignored amounted to a material error of law.
7. Permission to appeal was granted by FtT Judge Hodgkinson in the following terms;
"2. The grounds do not challenge the judge's findings and conclusions in relation to protection but, rather, challenge her Article 8 findings. They argue that the judge failed to consider a letter from the Appellant's two children's school [AB 25-26], when considering the issue of whether it was reasonable to expect the children to relocate to Ghana, the contention being that such evidence is highly material to the issue of reasonableness.
3. The judge addresses the question of the interests of the children, and the issue of the reasonableness of their removal, in [24-26] of her decision. It is not evident therefrom that she has given any consideration to the content of the said school letter, let alone adequate consideration. That letter gives indication that the children's removal to Ghana 'would disrupt their learning, disrupt their emotional well-being and risk any future progress they could make'. The judge does not appear to have engaged at all with this very important evidence, such omission amounting to an arguable error of law."
8. Following the grant of permission directions were issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FtT decision should be set aside by reason of error of law.
The Appellant's Submissions
9. Miss Faryl relied upon the grounds together with the grant of permission to appeal, and the letter from the head teacher dated 14th March 2016 at pages 25-26 of the Appellant's bundle.
10. Miss Faryl submitted that the FtT had failed to engage with this important evidence, which therefore meant that the decision was unsafe and should be set aside.
The Respondent's Submissions
11. Mr Bates submitted that the FtT was not required to make reference to every single piece of evidence. The FtT had indicated at paragraph 24 that medical and educational evidence had been considered, and I was asked to conclude that the letter from the head teacher had not been disregarded.
12. I was asked to conclude that the FtT had adequately considered the reasonableness of the children returning to Ghana and to note the absence of any expert report to indicate that such a return would adversely affect them. Mr Bates submitted that the letter in question, was from a head teacher, not an expert on autism, and the letter indicated that both children are in mainstream education and have been making good progress. The FtT had taken into account that there was no background evidence to indicate that autism could not be treated in Ghana, nor was there any evidence to indicate that there was not a functioning education system. Mr Bates questioned whether the head teacher was qualified to state that any move from the school would risk any future progress that the children could make.
The Appellant's Response
13. Miss Faryl contended that there was nothing in the FtT decision to indicate that the head teacher's letter dated 14th March 2016 had been considered, and the head teacher was well qualified to give an opinion as to the adverse effects that a move from the school may have. Miss Faryl submitted that the FtT was not entitled to simply disregard material evidence.
14. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
15. I have taken into account the grounds submitted by the Appellant, and the submissions made by both representatives.
16. The issue that I am asked to consider is whether the FtT materially erred in law in finding that it was reasonable for the Appellant's two minor sons to return to Ghana, taking into account that they had been born in the United Kingdom, and the elder had lived in the United Kingdom for in excess of seven years.
17. The FtT was clearly aware of the need to consider the best interests of the children and did so at paragraphs 24-26. At paragraph 26 the FtT found that the Appellant's representative was wrong to argue that because the elder child had spent over seven years in the United Kingdom, he satisfied the Immigration Rules. This presumably is a reference to paragraph 276ADE(1)(iv) which provides that an individual would be granted leave to remain if at the date of application he is under 18 years of age and has lived continuously in the United Kingdom for at least seven years, and it would not be reasonable to expect him to leave the United Kingdom.
18. The Supreme Court in ZH (Tanzania) [2011] UKSC 4 confirmed that when considering the best interests of a child, this broadly means the well-being of the child, and the consideration of where the best interests lie will involve asking whether it is reasonable to expect the child to live in another country.
19. I agree with Mr Bates, in that the FtT cannot be expected to make reference to every single piece of evidence, for example there are 237 pages in the Appellant's main bundle. However I also agree with Miss Faryl, that it would be an error of law if material evidence that was before the FtT was ignored.
20. Having carefully considered the competing submissions, I do not find that the FtT materially erred. I am satisfied that the letter from the head teacher dated 14th March 2016 contained at pages 25-26 of the Appellant's bundle was considered by the FtT for the following reasons.
21. The FtT at paragraph 9 listed the documents that were provided and confirmed that these documents had been read and considered. Included in those documents are the Appellant's bundles, the main bundle of which includes the letter in question, and there is also reference to the Appellant's skeleton argument which at paragraph 17 makes specific reference to the head teacher's letter. I have been provided with no satisfactory evidence on behalf of the Appellant, to cause me to doubt the FtT's confirmation that the documents in question were considered.
22. In addition I note that at paragraph 24 the FtT makes specific reference to educational evidence, and although the head teacher's letter is not specifically referred to, I am satisfied that the reference to educational evidence includes this letter. The only educational evidence in the Appellant's bundle is at pages 25-28, and 95-115, the latter being certificates and reports. The FtT at paragraph 24 makes reference to the children being in mainstream education and doing well, and that is confirmed in the head teacher's letter dated 14th March 2016.
23. I then have to consider whether the FtT erred in concluding that the return of the children to Ghana would be reasonable, notwithstanding the head teacher's opinion that a move from the school could disrupt their learning, their emotional well-being, and risk any future progress they could make. I take into account that the children had only been at the school for less than a year when the letter was written. The elder child joined the school in June 2015, and the younger in July 2015. The question of reasonableness is one to be decided by the FtT having considered all material evidence. The question of the weight to be accorded to the opinion of the head teacher is a matter for the FtT.
24. The FtT took into account that both children are in mainstream education, and that there was no medical evidence to indicate that a move to Ghana would adversely affect them. The FtT found, and did not err in doing so, that Ghana has a functioning education and health system and there was no evidence to indicate that the elder child had a severe version of autism.
25. The Court of Appeal gave guidance on considering the best interests of children in EV (Philippines) [2014] EWCA Civ 874. The factors to be considered are listed in paragraph 35, and included considering how long the children had been in education, and what stage their education had reached. In this case, as previously stated, both children had only been in the primary school for less than a year, and their education was at a very early stage.
26. In conclusion, I do not find that the FtT materially erred in law materially by disregarding material evidence. I find that the FtT took into account all the evidence placed before it, and attached what weight was deemed appropriate to that evidence. The FtT decision does not disclose a material error of law.
Notice of Decision
The making of the decision of the FtT did not involve the making of a material error on a point of law. I do not set aside the decision. The appeal is dismissed.
Anonymity
No anonymity direction was made by the FtT. There was no request made to the Upper Tribunal for anonymity, and I see no need to make an anonymity order.

Signed Date 4th November 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed. There is no fee award.

Signed Date 4th November 2016

Deputy Upper Tribunal Judge M A Hall