Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00871/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
on 26th July 2016
On 15th August 2016

Before

upper tribunal JUDGE MACLEMAN

Between

[x w]
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr S Winter, Advocate; Maguire Solicitors (Scotland) Ltd
For the Respondent: Mr M Mathews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of China, born on [ ] 1982.
2. The respondent refused the appellant's asylum claim for reasons explained in a letter dated 12th August 2015.
3. First-tier Tribunal Judge Mrs Debra H Clapham dismissed the appellant's appeal for reasons explained in her determination promulgated on 17th May 2016.
4. The first ground on which the appellant sought permission to appeal was that the judge erred in finding that she was not to be believed about being held in detention because during the same time she provided fingerprints with her application for a visa to come to the UK. The judge who granted permission observed that this ground was little more than a disagreement and that the finding was properly open to the judge on the evidence available. Mr Winter, rightly, did not seek to pursue this ground. The judge's finding is plainly sensible. She was entitled to take it that the appellant would have been fingerprinted for her visa application, without any further specific evidence from the respondent.
5. The grounds of appeal continue:
The judge erred in law at paragraph 94 by assuming that children born abroad have a different position in terms of registration on the hukou system. There are no references to support this finding. The judge has ignored the appellant's submission at paragraph 84 [that the first born child, who has returned to China, is not registered on the hukou system] and the supporting evidence in the bundle ... The judge has not considered this matter under Article 8 of the ECHR.
6. Mr Winter said that the essence of the grounds is error regarding registration for hukou of overseas born children. The relevant authority is AX (family planning scheme) China CG [2012] UKUT 00097. The FtT Judge at paragraph 94 records that the appellant claims to have submitted evidence that the first born child in China is unable to obtain hukou. The judge cannot understand why this would be so given AX, which states that family planning officials are not entitled to refuse to register unauthorised children. The judge continues, "? in any event this child was born outside China so the position may be different and furthermore she was able to obtain a passport or at least a travel document for this child from the Chinese Embassy". At paragraph 96, the judge further applies AX and finds that it does not assist the appellant.
7. Mr Winter submitted that the hukou document had been produced. It showed that the child was not included. The child lives with paternal grandparents in China.
8. The copy document and translation are to be found at pages 23 to 36 of the appellant's Inventory of Productions in the FtT. They show registration of a mother, father, two daughters, one son and a grandparent as members of one household. No minor child is included.
9. Mr Winter said the document established that the child who was sent to China has not been registered. The judge's decision at paragraph 94 lacked a finding on whether the hukou was authentic, or on the weight which it carried. If the first child had not been registered on the hukou, there would be good reason to have concerns over further children of the family. AX at paragraphs 186 to 187 stated that the attitude of birth control authorities to foreign born children remained unclear, and varied from province to province. AX was not conclusive on this issue, and the appellant's evidence was that in this case there had simply been a point blank refusal to register. The issue was material, as registration was the key to free medical treatment, free education and other social advantages. If these points did not establish an asylum risk, they were relevant to the assessment of the best interests of the child and to proportionality. Those disadvantages apply to non-registered children (AX at paragraph 213).
10. Mr Matthews pointed out that the appellant's evidence had been entirely disbelieved, and that no error was suggested in that conclusion. Her partner, the father of the children, had elected not to give evidence. The rejection of the appellant's evidence included rejection of her indirect assertion that the first child had been refused registration. The hukou document produced was issued on 13th September 2005. It could show only who had been registered on that date. Notably, it included three of the four siblings in a family, despite family planning policy (the fourth sibling being abroad). It had no bearing on whether the appellant and her partner might obtain registration for their children if they were to establish a household in China. Production of the hukou added nothing to the appellant's case. The outcome had been reached in light of her lack of credibility and by applying AX, which established that there was no real risk of refusal to register a child - head note 8. The grounds did not fairly represent the judge's application at paragraph 94 of AX. The determination should stand.
11. Mr Winter in response drew attention to the note on the hukou to be found at page 23 of the Inventory of Productions: "Any change of circumstances including the number of household members ... should be reported to the household registration authority in order for the household register to be updated".
12. I reserved my decision.
13. The note on the registration document does not show that it is any more than what it bears to be: a record of the members of the household on 13th September 2005, before the child was born.
14. The only evidence about non-registration was the assertion of the appellant, based on what she was allegedly told by relatives from China. The appellant was not believed. Further, her evidence on the point runs counter to country guidance and to background information.
15. The judge who granted permission identified a possible error at paragraph 97, where the judge says that the Immigration Rules are to be viewed "as a complete code", which is not correct in the present case. However, there is no reason to think that the children on return to China with their parents would be at any significant disadvantage compared with the average family in China. There is no realistic scope on which the appeal might have succeeded under Article 8 of the ECHR, outside the Immigration Rules.
16. The decision of the FtT has not been shown to err in point of law, and it shall stand.
17. No anonymity direction has been requested or made.

15 August 2016
Upper Tribunal Judge Macleman