Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01432/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On Tuesday 22 November 2016
On 23 November 2016

Before

UPPER TRIBUNAL JUDGE SMITH

Between

L L H
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Joshi of A. Bajwa & Co solicitors
For the Respondent: Mr L Tarling, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-tier Tribunal. Although this is a protection claim, the grounds of appeal to this Tribunal do not challenge the Judge's dismissal of the appeal on that ground. However, the appeal involves a child and it is therefore appropriate to make an anonymity direction in this case.

DECISION AND REASONS
Background
1. The Appellant appeals against the decision of First-tier Tribunal Judge N M K Lawrence promulgated on 23 September 2016 ("the Decision"). By the Decision the Judge dismissed the Appellant's appeal against the Respondent's decision dated 21 September 2015 refusing her protection and human rights claims. The Appellant challenges the Decision in relation to the dismissal of the appeal on human rights grounds, in particular Article 8 ECHR.
2. Permission to appeal was granted by First-tier Tribunal Judge Osborne on 21 October 2016 on the basis that it is arguable that the Judge failed to adequately consider the Appellant's child's best interests and that the proportionality of the Appellant's removal to Myanmar may therefore not have been properly considered. The appeal comes before me to determine whether there is an error of law in the Decision and if so to either re-make the decision or remit to the First-tier Tribunal to do so.
3. I can deal with the factual background to this case quite shortly. The Appellant arrived in the UK in February 2006 with entry clearance as a student. Her leave was extended in that category until June 2013. Thereafter, she sought to remain as a Tier 1 migrant but that application failed. She then claimed asylum in August 2015. It is that claim which was refused by the Respondent's decision under appeal.
4. The basis of the Appellant's asylum and human rights claims is her relationship with an Egyptian national who is a Muslim (Mr A E). The Appellant is a Buddhist. According to the evidence given to the Judge at the appeal hearing, she has no intention of converting to her partner's religion ([17] of the Decision). The couple met in October 2012. Mr A E has no status in the UK either. They have a son born on 21 September 2015. The Appellant's family do not accept her relationship with Mr A E because of his religion. They are, for the same reason, unwilling to accept the Appellant's child.
5. The Appellant says that she would be at risk in Myanmar because of her relationship with Mr A E and her son would similarly be at risk by extension. The Judge did not accept that claim for reasons given at [11] to [15] of the Decision. Based on the background evidence, the Judge did not accept that the evidence showed that Muslims (other than the Rohingya) were at risk of persecution in Myanmar. The Appellant would be returning to her home area of Yangon. That is not in the Rohingya area. The Appellant has not challenged those findings or the Judge's dismissal of her appeal on protection grounds.
The grounds, submissions and evidence
6. The focus of the appeal before me is the position of the Appellant's child, particularly in light of what is alleged to be an inability for the Appellant and Mr A E to marry in Myanmar and an inability for the Appellant's child to be registered as a citizen of Myanmar.
7. Ms Joshi's skeleton argument before me focussed in particular on the latter point. Appended to her skeleton argument is a document from "The International Observatory on Statelessness" which purports to set out the position in relation to registration of a child in Myanmar. Ms Joshi candidly accepted that this document was not before the Judge.
8. I sought to ascertain from Ms Joshi what evidence was relied upon before the Judge as showing that the Appellant's child could not be registered as a citizen of Myanmar and indeed whether this point had actually been brought to the attention of the Judge as part of the Appellant's claim in any event. It is mentioned in the grounds of appeal. However, there did not appear to be any evidence relating to this point and no indication that the point was taken before the Judge (although in fairness the submissions are not set out in full). Ms Joshi drew my attention to the Appellant's witness statement and that of Mr A E. Those read as follows in relation to this point:-
Appellant's statement
"[7] The law in Burma does not allow us to get married because of our difference in religion and also the Burmese embassy has not allowed our child to be registered as a Burmese national."
Mr A E's statement
"[8] We also cannot live as a family in Egypt, because we are not married and [L] is not Muslim, she is a Buddhist. We are not allowed to have a family life according to the Egyptian laws and live together there permanently. The Egyptian embassy even refused to register the child as an Egyptian because there is no marriage and the Egyptian laws would not allow us to get married because of the difference in our religion. [L] also tried to register the child with the Burmese Embassy but they too refused her based on the same reason"
9. I pointed out to Ms Joshi that those assertions were not based on any evidence from the Burmese Embassy. She asserted that this was because the Embassy would not confirm the position in writing. I pointed out that this was not in evidence. She also submitted that it was a natural extension of the fact that the Myanmar authorities would not allow the Appellant to marry Mr A E because of the difference in religion. That submission led to a discussion about whether that was in fact the position. That is of particular relevance given what Mr A E says about the reasons why the Burmese Embassy would not register the child being the same as those given by the Egyptian Embassy (that the couple would not be allowed to marry and the child could not be registered unless they were married). The Appellant herself provides no reasons why the Embassy said that the child could not be registered.
10. Ms Joshi directed my attention to a document at [AB/121] which is described as a "Notarial Certification". In light of the weight which Ms Joshi sought to place on this document in relation to the issue of whether the couple could marry in Myanmar and that the document is not expressly mentioned in the Decision, I set out the content of this document in full:-
"I [name and address of notary/advocate in Myanmar] do hereby certify that [ L L T] daughter of [father and mother's names and address in Myanmar] born on 6th day of April 1978, residing at [address in Myanmar] has already attained the age of legal majority and she is unmarried person (single). As she being a Citizen of the Union of Myanmar, she has lawful right to enter into legal marriage with anyone of the same Religion, according to the existing laws of the Union of Myanmar, under the following conditions:-
(1) Who has completed (21) years of age.
(2) Must be single, free, unmarried and a bachelor (or) spinster, and
(3) Must obtain the consent or [of?] both parties"
11. Ms Joshi also sought to make submissions about whether Mr A E could join the Appellant in Myanmar in order for a marriage to be conducted there. She submitted that Mr A E has been told that he could only get a very short term visa from Egypt (which is his country of return). As I pointed out to her, though, there is no evidence from Mr A E about this. She was constrained to accept that this was the case.
12. I asked Ms Joshi what factors were relied upon as being relevant in the consideration of the Appellant's child's best interests other than the registration point and where the evidence was before the Judge in relation to those best interests. She pointed to the Appellant's son's birth certificate which shows he was born in the UK in September 2015 (and was at the time of the hearing before the Judge therefore aged under one year). She also pointed to the Appellant's evidence that her family had disowned her and the child and that it would not be safe for her, Mr A E and the child to live in Myanmar together.
13. In response, Mr Tarlow submitted that there is no material error in the Decision. The Judge has dealt with the evidence before him. He has noted the evidence in relation to the couple's ability to marry at [8] of the Decision and found at [9] that they could lawfully settle together in Myanmar. The only error in relation to which permission was granted is the brevity of the Judge's consideration of the child's best interests at [19] of the Decision. However, read in the context of the Decision as a whole and the findings made elsewhere, together with the evidence on which Ms Joshi relied in her submissions before me, he submitted that either there was no error or any error would be immaterial given the lack of evidence of the matters relied upon.
14. Mr Tarlow pointed out that the child is aged just over one year. He is not in education. His best interests at that age are to be with his parents. Mr Tarlow accepted that the Judge could have said more about the best interests. However, the evidence that the Burmese Embassy would not register the child was based on bare assertion with no material in support. He repeated his submission therefore that the error, if there is one, is not material.
15. In reply, Ms Joshi submitted that even if the only evidence that the child could not be registered as Burmese is assertion, it was still incumbent on the Judge to deal with that evidence. He clearly had the witness statements before him. She also submitted that the error is material because the child's best interests are compromised by the Judge's failure to deal with them properly.
16. At the end of the hearing, I indicated that I would reserve my decision as to whether there is a material error of law in the Decision and give that decision in writing with reasons which I now turn to do. Both representatives agreed that, if I found a material error of law, the appeal could remain in this Tribunal for re-making. However, Ms Joshi indicated that the Appellant would wish to submit further evidence particularly in relation to the registration point.
Discussion and conclusions
17. The Judge deals with the Appellant's son's best interests expressly at [19] of the Decision in the following terms:-
"On the evidence before me, I find there is no evidence that there are very significant difficulties in this family settling in Myanmar. The son was born on the 21st September 2015. There is no evidence before me that the son's development, 'best interests', in Myanmar is likely to be prejudiced should he be returned there with his parents."
18. Although this passage appears after the consideration of the Appellant's family and private life and the Article 8 claim is assessed only within the Rules, it appears from what the Judge there says that he has found that the child's best interests at his young age are served with settling with his parents wherever they are based. The issue is whether the evidence before the Judge required any closer consideration of other factors. As I noted at [12] above, the additional factors relied upon before me were the inability to register the child as a Burmese citizen, the inability of the Appellant and Mr A E to marry and continue their life as a family in Myanmar, the safety of the child by extension of Mr A E's position as a non-national Muslim and the rejection of the relationship and child by the Appellant's family.
19. I start by considering the position in relation to registration of the child. I accept that the assertions in the witness statements which I have set out at [8] above are not expressly referred to by the Judge. It is important though to consider what those statements actually say. As I have noted, the Appellant's statement is silent about the reasons why she says that the Burmese Embassy would not register the child. Mr A E's statement though suggests that the reasons are the same as given by the Egyptian Embassy namely that the couple are not married.
20. That leads me on to consider whether there is any error in relation to the Judge's findings about whether the couple would be permitted to marry in Myanmar. As set out at [10] above, the Appellant relied in this regard on the Notarial Certificate. Although the Appellant's name is spelt differently and she did not at the date of the document (29th June 2016) live in Myanmar, I am prepared to accept this document as referring to the Appellant.
21. However, I am quite unable to accept the interpretation which Ms Joshi sought to place on this document concerning the right to marry a person of a different religion. She submitted that because it is said that the Appellant has the right to marry someone of the same religion, it is implicit from this that the document shows that she does not have the right to marry someone of another religion. I cannot accept that interpretation. The document is silent on the point. In particular, the conditions set out in the document make no further reference to the other party having to be of the same religion.
22. Furthermore, it is not clear what is the expertise of the Notary who wrote this document nor for what purpose it was written. It post-dates the Respondent's refusal letter which sets out in considerable detail the laws of Myanmar passed in 2015 which permit a marriage between a Buddhist woman and a non-Buddhist man (see pages 8 to 9 of the Respondent's decision). If the intention of the Notarial Certificate was to answer that evidence, I would expect the document to state in terms that it is not possible for a Buddhist woman and a non-Buddhist man to marry and why not by reference to the law enacted in 2015.
23. I accept that the Judge has failed to make express reference to this document when dealing with the Appellant's ability to marry Mr A E in Myanmar and to live with him there at [8] of the Decision. However, that is likely to be because the relevance of the document was not explained. Even if that is an error, it could not be a material one given the extent of the evidence produced by the Respondent on this issue and the ambiguity (put at its highest) of the position as set out in the document on which the Appellant seeks to rely.
24. As I noted at [7] above, Ms Joshi also sought to rely on background evidence appended to her skeleton argument in relation to the asserted inability to register the Appellant's child as a Burmese national. Although the document was not before the Judge and there can be no error based on his failure to refer to it, I have taken it into consideration because its content may go to the question of whether, if there is any error in relation to consideration of best interests, that error is material.
25. On closer scrutiny, the document does not bear out the interpretation which Ms Joshi seeks to place on it. It only summarises what the nationality law is in Myanmar for particular categories of person. It does not set out the nationality laws of Myanmar in any detail. The document starts by referring to three groups of what are said to be stateless persons in Myanmar - the Rohingya, native born but non-indigenous people such as Indians and children born in Thailand of Burmese parents. Ms Joshi underlined the passage at the end of the document which states that "The Burmese government refuses to give citizenship to children born outside the country to Burmese parents who left illegally or fled persecution". However, even that passage does not assist the Appellant's case. She did not leave Myanmar illegally - she came with entry clearance as a student. Although she has since made an asylum claim, that is based on a situation which has arisen since she left Myanmar (her relationship). She did not flee persecution.
26. For the above reasons, I find that there is no error in the Judge's failure to expressly refer to the alleged inability to register the Appellant's child as Burmese. That flows from the fact that the evidence in the statements is unsatisfactory and lacks detail. Such detail as is included in Mr A E's statement depends on the Judge's findings as to the couple's ability to marry and live together in Myanmar. Based on the evidence produced by the Respondent as to the laws relating to marriage in Myanmar and for the reasons I have given at [20] to [23] above for finding that the document relied upon by the Appellant does not assist her case, the Judge was entitled to reach the finding which he did at [9] of the Decision that the family can lawfully settle together in Myanmar.
27. Ms Joshi also relied on the Appellant's child's birth certificate. Other than in relation to the child's age, it does not seem to me that this evidence has any relevance. I do not understand the Appellant to be asserting that the child is entitled to be registered as a British citizen because he was born in the UK. That is clearly not the case. Neither the Appellant nor Mr A E had settled status at the date of the child's birth. He is not therefore entitled to British citizenship at birth. Even the grant of limited leave to either or both parent would not change that position. He would not be entitled to be registered as a citizen until such time as one of his parents had at least settled status in the UK or he attains the age of ten years.
28. The other factors relied upon by Ms Joshi relate to the child's safety and rejection of him by the Appellant's family. In relation to safety, the Judge found, having considered the background evidence at [11] to [15] of the Decision, that the family could settle without fear in Myanmar. The Appellant's home area of Yangon is not in the Rohingya areas. The Appellant is a Buddhist and not Rohingya Muslim. Mr A E is a Muslim but not a Rohingya and the Judge found based on the background evidence that ill treatment of Muslims is predominantly centred on the Rohingya areas.
29. The Judge also noted at [16] of the Decision the Appellant's claim to have been ostracised by her family based on her relationship and birth of her son. He found though that this did not engage either the Refugee Convention or the Human Rights Convention without more. Although the Appellant says in her evidence that she cannot live with her family in Myanmar because of the rejection, she is aged thirty-eight and does not live with her family here. She has lived in the UK without her family for a number of years. There is no error of law in the Judge's approach.
30. I accept that the Judge has not dealt with the child's best interests until after his consideration of the position of the Appellant and the question of whether the family meet the Rules. I accept also that the Judge has not gone on to consider the proportionality of removal outside the Rules taking account of those best interests. However, I find that any error in this regard is not material since, on the evidence, there could be no different outcome for the following reasons.
31. The child is aged just over one year. The Judge has found that the family can settle together in Myanmar. I have explained at [20] to [23] above why that finding was open to him on the evidence. I have also rejected the Appellant's case in relation to ability to register the child based on the evidence before the Judge and that before me for the reasons set out at [20] to [26] above. I also observe as noted at [27] above, that the position would be no different in relation to registration if the family were permitted to remain in the UK at this stage. The Appellant's child is not in education. There is no evidence of any health difficulties. There is no evidence that his best interests are other than those which would generally pertain in relation to a child of this very young age, namely to be with his parents.
32. For those reasons, although the Appellant's child's best interests are a primary consideration (albeit one which can be outweighed by other factors), the child's best interests in this case could not render removal disproportionate provided the child is to remain with his parents (given his very young age). The Judge has dealt with the family's private and family life as a whole, finding at [17] of the Decision that the Appellant and Mr A E can marry in Myanmar and the family can enjoy their family life in Myanmar. The Judge goes on to note at [18] of the Decision that the family cannot meet the requirements of Appendix FM based on their relationship or the position of their child. That is undoubtedly correct. Although the grounds of appeal before this Tribunal assert that the Judge was obliged to go on to consider whether removal would be proportionate applying the Razgar test, it is not said what additional factors fell to be considered other than the child's best interests. For the reasons I give, those do not militate against removal provided the child is to remain with his parents.
33. For those reasons, I find that there is no error of law in the Decision. Even if there were an error, I uphold the Decision for the reasons I have given on the basis that, taking into account the evidence, any error is not material.

DECISION
The First-tier Tribunal Decision did not involve the making of an error on a point of law. I therefore uphold the First-tier Tribunal Decision promulgated on 23 September 2016 with the consequence that the Appellant's appeal is dismissed.

Signed Date 23 November 2016

Upper Tribunal Judge Smith