Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01916/2016

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 2 February 2017
On 3 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

ZAM
(ANONYMITY ORDER MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hussain of Counsel
For the Respondent: Mrs Petterson a Home Office Presenting Officer

DECISION AND REASONS

Background

1. The Respondent refused the Appellant's application for asylum or ancillary protection on 11 February 2016. Her appeal against this was dismissed by First-tier Tribunal Judge Myers ("the Judge") following a hearing on 18 October 2016.

2. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify ZAM or any of her family members. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so in order to preserve the anonymity of ZAM's children.

3. In summary the Judge found that the Appellant had not established she had been the victim of ill treatment by her family, had no ID documents, had no contact with her family in Sulemanya in the Kurdish Autonomous Region of Iraq (KAZ), or that her family would have any adverse interest in her or ability in finding her. The Judge found that it would not be unduly harsh for her to internally relocate if she wished, and there would be no insurmountable obstacles to family life continuing for the family in the KAZ. It is in the best interests of her child (then aged 14 months) to be with his parents, but it was a matter for the parents if the child went with her or stayed here with his father. There was nothing compelling such as to engage Article 8, and there was no strong likelihood that an application for entry clearance would necessarily succeed.

The grant of permission

4. Judge Astle granted permission to appeal (28 November 2016) on the ground that it is arguable that the Judge erred in failing to consider the Appellant's individual situation when considering relocation. Permission to appeal on all grounds was granted.

Appellant's position

5. The Judge materially erred in concluding that ZAM could relocate to the KAZ with her British child and while heavily pregnant. The Judge had ignored the fact that her child was entitled to British nationality. ZAM could not enter the KAZ as she had not been pre-cleared (AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC)) headnote [17]. ZAM's son did not originate from the KAZ and could only stay 10 days (AA headnote [19]). The Judge did not address ZAM's difficulty in getting to the KAZ, getting work given she had a young child and was heavily pregnant, or what assistance she had available. There was no "stand alone" Article 3 assessment.

Respondent's position

6. It was submitted in the Rule 24 notice (12 December 2016) that there was insufficient evidence the child was British, but if he was, he would not be forcibly removed. Adequate reasons were given for the findings on internal relocation and failure to establish she had not brought her ID. There is no reason to suppose she would not be pre-cleared for entry to the KAZ.

7. Mrs Petterson submitted that ZAM would not have been removed until declared medically fit following her confinement. Her older child could remain with his father. She accepted that the Judge should have considered the impact this would have had on his ability to work and consequently whether that would adversely impact on his ability to earn sufficient to satisfy the relevant financial threshold to support a spouse entry clearance application.

Discussion

8. In relation to the Article 3 claim, I am satisfied that the Judge materially erred in not considering the adverse impact on ZAM's ability to work in having at least one very young child as exacerbated by the statistical likelihood she would have a second infant to care for, given the successful birth rates, and she being 9 months pregnant when the Judge heard the appeal. The fact that she had failed to establish a lack of contact with or adverse interest from her family did not equate to a finding that she had that support available to her. It was a material error of law to find not to make positive findings prior to determining whether her individual circumstances were such that it would be unduly harsh to expect her to internally relocate.

9. I am not satisfied that the Judge materially erred in not considering specifically whether her (then) only child would obtain pre clearance assessment for entry to the KAZ as he originated from there and there was no reason to suppose his identity would not be established and he would not be pre-cleared.

10. I am not satisfied that the Judge materially erred in not considering specifically whether her (then) only child would lose the benefits of British nationality as it had not then been established that he was a British national.

11. I agree with Mrs Petterson that the Judge should have considered the impact the older child remaining here would have had on his father's ability to work and consequently whether that would adversely impact on his ability to earn sufficient to satisfy the relevant financial threshold to support a spouse entry clearance application. This amounts to a material error of law as it affects the question of whether it would be reasonable to require them to make a decision as to whether she should separate her from her child.

12. Both representatives agreed that the matter should be remitted to the First-tier Tribunal for an assessment of the Article 3 and 8 claims only and in light of the findings summarised in the first sentence of [3] above which stand. The factual matrix has of course have changed in the interim given the birth of her second child and as by the time of the re-hearing the older child may have obtained his British nationality.

Decision:

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the Article 3 and 8 decisions, but not the asylum decision which stands.

I remit the matter to the First-tier Tribunal for a rehearing on the Article 3 and 8 matters only, with the matter to be heard by a Judge other than Judge Myers.

Deputy Upper Tribunal Judge Saffer
3 February 2017