Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13440/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 2 November 2016
On 4 November 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

ZHI [G]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr K H Forrest, Advocate, instructed by Katani & Co, Solicitors
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a determination by First-tier Tribunal Judge Handley, dismissing his appeal against refusal of asylum as a refugee from China.
2. The appellant was granted permission to appeal on grounds set out as (i) - (v).
3. Mr Forrest accurately characterised the grounds as raising essentially two issues.
4. The first issue, ground (v), is based on the judge falling into error at paragraph 32 where he says the appellant and his wife have no children. The evidence was clear that they have two children. Mr Forrest submitted that this was not only a factual but a legally material error, because the best interests of children are essential and integral to an article 8 assessment. He accepted that the judge did not require to recite a mantra in terms of Razgar, and that there was no error at paragraph 33 regarding private life, but the concluding paragraphs carried out no proportionality exercise. This error required the case to be remitted to the first-tier tribunal for a fresh assessment.
5. Mr Forrest submitted that grounds (i) - (iv) together constituted a "reasons" challenge, and amounted to more than disagreement with the judge's conclusions, all going to core issues.
6. Each of these grounds is framed by reference to paragraphs of the appellant's witness statement in response to paragraphs of the refusal letter on credibility issues. Each complains that the judge failed to take into consideration the appellant's explanation. Mr Forrest submitted that the judge said no more than that he found the appellant's explanations not "proper" or "plausible", overlooking the witness statement. Perhaps the strongest of these points, Mr Forrest submitted, was at paragraph (iv), which overlooks that the appellant gave a clear account of why he delayed for 10 years after arriving in the UK before making his claim. That explanation was not mentioned in the decision. The challenge based on inadequacy of reasoning was also sufficient to require a rehearing.
7. Mrs O'Brien in reply accepted that the judge made an error in respect of the children, but she said it was plainly not material. The appellant had not argued any substantial case based on the best interests of children and article 8. These were very young children, not yet even at nursery school, neither of whose parents had any status to remain in the UK, and all members of the family were citizens of China. No protection case had been argued on the basis of the family including two children, and an article 8 case on those facts was simply bound to fail.
8. Mrs O'Brien submitted that the reasons challenge was no more than disagreement. Paragraphs 24 to 29 of the determination were to be read as a whole. The judge explained why he rejected the appellant's explanations. Although these were recited in the witness statement by reference to paragraphs of the respondent's decision, in substance they were no more than repetition of and insistence upon the position the appellant took at the interview. There was nothing which required separate analysis. Paragraph (iv) of the grounds, on the explanation for the long delay in claiming asylum, was no different from the rest. The explanation was plainly feeble and no more needed to be said. In effect, the appellant had said nothing new in his witness statement.
9. I reserved my decision.
10. The appellant in the grounds and submissions has probed for such error as might be found, but apart from the slip regarding the children, in my opinion that probe has found nothing.
11. The factual error regarding the children is of no importance. It is of course easy to say that in principle an assessment of the best interests of two infant children is an important part of an article 8 exercise. Realistically, however, the position is that the appellant did not advance a case based on any detriment to the interests of the children if the family were to return as a unit to China, which is the outcome on which any consideration must be based. Notably, the grounds in this respect are all framed on principle, without any specification of any possible detriment which was overlooked. Other than a generalised view of the better life prospects the children might have in the UK as compared to China, there was nothing to consider, either before Judge Handley or on a remaking. As submitted by the Presenting Officer, there could have been only one outcome.
12. Grounds (i) - (iv) are all based on reference to paragraphs in the statement and in the refusal letter, and on lack of consideration, but on reference to the underlying materials, as took place in course of the hearing, they do not bring out any substantial part of the appellant's case which was overlooked.
13. For example, ground (i) turns on whether the appellant gave an inconsistent account of the number of people attending the church of which he claimed to be a member. There was plainly a self-contradiction at the interview and the appellant has not said anything since to undermine the judge's finding that he has "not offered a proper explanation" for it. That is a finding justified on reference to all the evidence, including the witness statement, which is no more than a repetition: "I clarified this at Q/A 94 - 95 of my interview".
14. The one error identified is immaterial. The grounds do not show that the decision, read fairly and as a whole, is a less than legally adequate explanation to the appellant of why his case has been dismissed.
15. No anonymity direction has been requested or made.
16. The determination of the First-tier Tribunal is shall stand.

4 November 2016
Upper Tribunal Judge Macleman