Tribunal decisions

The decision

IAC-AH-SC-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/21287/2015
IA/21292/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 1st March 2017
On 28th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

j m (first Appellant)
a a g (second Appellant)
(ANONYMITY DIRECTION MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms L Mair of Counsel, Garden Court North Chambers
For the Respondent: Mr M Diwncyz, Home Office Presenting Officer

DECISION AND REASONS
1. The appellants appeal against the decision of Judge Brookfield made following a hearing at Manchester on 15th February 2016.
Background
2. The appellants are citizens of Zambia and are mother and daughter. The first appellant entered the UK on 10th May 2001 as a visitor and subsequently overstayed. The second appellant was born in the UK on 17th March 2009. They applied for permission to remain in the UK on human rights grounds and were refused on 27th May 2015.
3. In a lengthy and careful determination the judge noted that the second appellant was not a qualifying child within the meaning of Section 117B of the Nationality, Immigration and Asylum Act 2002 since she was under the age of 7 years old.
4. The first appellant spent the first 34/35 years of her life in Zambia and is fluent in Bemba and English, both of which are widely spoken there. The judge considered whether she could meet the requirements of paragraph 276ADE of the Immigration Rules and concluded that she could not. She has not lived in the UK for twenty years.
5. The judge did not accept that there would be very significant obstacles to her integration into the country to which she would have to go if required to leave the UK. There was no basis on medical grounds to warrant a grant of leave. The reason why she left Zambia, which was because her stepmother wished her to marry her stepsister’s widower who was HIV positive, was no longer relevant.
6. The judge also considered the appellants’ Article 8 rights outside the Immigration Rules. The father of the second appellant is not a British national with no status in the UK. Whilst the first appellant and her daughter had established a private life here, bearing in mind the statutory obligations imposed by Section 117B of the Nationality, Immigration and Asylum Act 2002, and the relevant case law, she concluded that removal would be proportionate.
The Grounds of Application
7. The appellant sought permission to appeal on the grounds that the judge had relied upon a number of speculative findings and an absence of evidence in order to reach positive conclusions with regard to the level of support which would be available to the appellants in Zambia. For example she said there was no evidence that the first appellant’s church in the UK would be unable to provide her with contact details for a similar church operating in Zimbabwe in order to found a conclusion that the first appellant would probably be able to join a church affiliated with the UK church in Zambia. In AA Uganda v SSHD [2008] EWCA Civ 579 the Court of Appeal repudiated an almost identical use of double negatives in order to justify a positive finding that the appellant would not be at risk.
8. Similarly the judge used double negatives and the paucity of evidence to make positive findings with regard to healthcare.
9. Second, the judge speculated with regard to the appellant’s ability to find work in Zambia to support herself and her daughter. The undisputed evidence was that she had never worked either in Zambia or in the UK and had no work experience and very few qualifications. The first appellant would be returned as a single mother with a young daughter which would vastly limit her ability to secure work. Moreover the judge paid no regard to the objective evidence that Zambia was ranked as the poorest country in the world with 70% of the population living on less than $2 a day. There was simply no evidence upon which the judge could properly have drawn the conclusion that she would be able to find work and support herself and her daughter in Zambia, and had reached findings not open to her on the evidence, which undermined her conclusion that there would not be very significant obstacles to integration in Zambia.
10. With respect to the best interests of the child the judge failed to have regard to the appellant’s written and oral evidence which stated that the father, a Congolese national, would not be able to either visit or live with them in Zambia. She had speculated in concluding that the father would be able to apply for status and secure permission to work if he wished to do so.
11. The judge had also found that the first appellant could raise her child alone in Zambia without the father’s presence or financial support, but had failed to have any regard to the fact that face-to-face contact with both parents is almost always in a child’s best interest. Furthermore the child was just short of her 7th birthday and the judge had had no regard to the respondent’s own policy regarding the weight to be placed on a child’s long residence in the UK. The appellants relied upon the current version of the IDI with respect to Appendix FM which states at 11.2.4 that “strong reasons will be required to refuse a child case with continuous UK residence of more than 7 years.”
12. Permission to appeal was granted by Designated Judge McDonald on 22nd December 2016.
13. On 28th December 2016 the respondent served a reply arguing that it was for the appellants to make out their case and they could reasonably be expected to produce evidence to support their claims. The second appellant has not yet reached the 7 year threshold and the judge was entitled to find that the balance in the appeal lay in favour of the public interest in effective immigration control.
Submissions
14. Ms Mair relied on her grounds and reminded me that the first appellant had been out of Zambia for nearly 20 years which was a significant enough period to be recognised by the respondent in the drafting of the Immigration Rules. She had never worked or lived in Zambia and had a lack of enduring ties with that country. According to her witness statement, she had no contact with any family there.
15. She had been very reliant upon the support of the church in the UK and it was simply speculation on the judge’s part to conclude that similar support would be available in Zambia. She relied on the argument made in the grounds, that the judge had unlawfully justified her findings on a series of double negatives and had not given adequate reasons for concluding that the appellant would be able to find work in Zambia.
16. She accepted that the child’s father had no status in the UK but said that it was his evidence that he would not go to Zambia with them since he was not in a relationship with the first appellant. The couple had attempted to reconcile for a period, but had separated again. Although the child had always remained in contact with her father, which would inevitably be severed.
17. Ms Mair submitted that much of the evidence had been undisputed and it was the appellant’s clear case that removal would negatively affect her child both in respect of the cessation of her private life in the UK as well as her contact with her father. The fact that Zambia was such a poor country was a very significant factor in considering her best interests.
18. Mr Diwncyz relied on his Rule 24 reply and submitted that there was very little evidence before the judge in order to support the appellants’ case. The first appellant left Zambia when she was 34 years old and spoke both languages of the country. The fact that Zambia was very poor was not a reason for resisting removal. He pointed out that there was very little evidence from the second appellant’s father in relation to contact and indeed he had appeared to lack any engagement with the process.
Findings and Conclusions
19. The grounds amount to a disagreement with the decision and disclose no error of law.
20. First, it was open to the judge to conclude that the first appellant would be able to become a member of a church in Zambia and be able to look to her new church there for similar support to that which has been given to her by her church in the UK. The Christian Fellowship Church in the UK states that it is worldwide on its letterhead. The judge observed that the first appellant had been able to find a church in Botswana before she came to the UK. At paragraph 8 of her witness statement she said that she lived with a pastor there. There was therefore a proper evidential basis for her conclusions.
21. With respect to healthcare, it was not argued that the first appellant suffered from any medical condition which would require ongoing treatment in Zambia. She has metal pins in her right leg following a fall in the snow. She takes regular antidepressants but no evidence was adduced to establish that she would require medication in Zambia or, if she did, that she would not be able to obtain them. The judge was correct to point out that the appellant is in the UK unlawfully and has no right to access NHS treatment. In Zambia she would have the right to work and the right to access healthcare for herself and her daughter.
22. Similarly, the judge was entitled to conclude that the fact that the appellant has undertaken some higher education in the UK at college and has obtained an NVQ in social work would assist her in re-establishing herself in Zambia where she lived until she was 34 years old. It was not unlawful for the judge to rely upon the first appellant’s qualifications as the basis for concluding that she could obtain work on her return. She would have no linguistic difficulties on her return.
23. So far as the child’s position is concerned, the problem here is that there was no evidence whatsoever from her father. If the relationship with the child was a significant part of his life one would have expected him to have at least produced a witness statement or indeed have given evidence in support of the appeal. The lack of evidence from him was a clear indicator of the value which he put upon the relationship with his child.
24. The judge considered her Section 55 duty with care but the paucity of evidence before her inevitably leads to a conclusion that he is not supportive of the appeal. He has no status or permission to remain in the UK. Whilst Ms Mair submitted that much of the first appellant’s evidence was uncontested there is in fact a clear difficulty between her witness statement and the evidence which she appears to have given to the judge that it was the intention of her and her partner to make their lives together permanently in the context of a complete absence of any other supportive evidence from him.
25. Whilst it may well be that in some cases the relationship with a father in the UK would tip the balance in the appellant’s favour in this case it was plainly open to the judge to find that since the father had no status here and did not provide any evidence to her, it is unsurprising that she reached the conclusion which she did. The child is not a qualifying child, and although she has been in the UK for nearly 7 years she has not reached that threshold. As the judge pointed out, she is not at a crucial stage of her education. She would be returning with her mother to the country of her nationality.
26. It was not unlawful for the judge to conclude that it would be reasonable to expect her to leave the UK with her mother and live in Zambia.

Notice of Decision
27. The original judge did not err in law and her decision stands. The Appellants’ appeal is dismissed.
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 28 March 2017

Deputy Upper Tribunal Judge Taylor