Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04019/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29th September 2016
On 8th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

[K s]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms C Charlton (LR)
For the Respondent: Mr N Bramble (HOPO)

DETERMINATION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Wilsher, promulgated on 26th July 2016, following a hearing at Taylor House on 21st June 2016. In the determination, the judge allowed the appeal of the Appellant, whereupon the Respondent subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

The Appellant
2. The Appellant is a female, a citizen of India, who was born on 5th July 1990. She arrived in the UK on 12th July 2012, on a student visa valid until 4th November 2014. She had been studying at a college but her leave was curtailed when the college lost its Sponsor licence on 20th May 2013. She subsequently applied for asylum on 8th July 2015, but the claim was refused in a decision dated 4th December 2015, whereupon she was served with removal directions. She appealed against the refusal of her protection claim.
The Judge's Findings
3. The judge observed how in 2012 the Appellant met a man called [TS] and began a relationship with him, whereupon she fell pregnant with his child. He initially suggested that they get married. Their parents were unhappy with this. In April 2014, after some two years, she even moved into [TS]'s property at [~] Road in Luton and they cohabited there until he apparently left her and returned to India. The Appellant had two cousins in the UK by the names of [SS] and [KK], upon whom she was heavily reliant, and they filed witness statements before Judge Wilsher, confirming that she resided with them while she studied in London until her course was suspended because the college lost its Sponsor licence. She now has a son born to her by the name of [SMS] who was born on 19th July 2014. She is afraid that her parents will not be supportive of her now that [TS] has left her were she to be returned to India. She has supporting medical evidence in the form of a report by Dr Anopana Kapoor prepared on 20th May 2015 which refers to her symptoms as presenting "severe depression and severe anxiety". What this report states is that, "It is likely that the severity of her symptoms would increase and she may experience suicidal thoughts due to no support mechanisms or financial aid, and the possible treatment she and her child may receive from others".
4. The judge, after setting out the applicable law with considerable care in the determination, proceeded to make findings of fact and credibility, and applied the correct standard of proof on the lower standard, before concluding that, "I am just persuaded to the lower standard of proof that the Appellant is telling the truth as regards the history in this case" and that she was an Indian woman from a rural background whose parents own a shop, and she was sponsored to come to the UK to study and fell pregnant by a man called [TS] who subsequently abandoned her. The judge observed how, "She has tried to reconcile with her family but they have thus far rejected her and made threats against her life" and she now suffers from severe anxiety and depression (paragraph 6).
5. Having accepted the Appellant's basic account, the judge then proceeded to look at the "risk on return" and observed how "this case is difficult to evaluate in terms of risk on return" and not least because the statements by the two cousins upon which reliance was placed was in circumstances where, "These witnesses were not in court to explain further" (paragraph 7). The judge observed that the South Asian Women's Network lists a number of organisations that provide short stay homes in India and that although children are not allowed to stay with the women, the report on shelter services for women prepared by the United Nations in December 2012, stated that in reality many women are accompanied by their children (paragraph 9). Furthermore, the judge observed how, "the Appellant has been extensively supported by her cousins in the UK since she arrived here in 2012", and although they were not in court to be questioned they could provide further support in India which would go much further in that country "given the relevant costs of living" (paragraph 10).
6. It was in relation, however, to the application of Article 8 jurisprudence, that the judge then found in favour of the Appellant, noting that the Appellant's son had to have his "best interests" taken into account and that, "It is clearly in his best interests to remain in the UK with his mother. She would have a much better chance of securing him education and have a much better standard of living" (paragraph 11). Furthermore, although the judge had earlier found that the support given by the cousins would go much further in a country like India and could continue to be provided, in relation to Article 8, the judge felt that,
"It is not obvious to me that at the moment she would be able to manage the practicalities of that alone in the fragile mental state that she is. For this reason I have very real concerns about the welfare of her son as well as the Appellant. It is possible she may resort to self harm again if she were left in a shelter in India that was unable to properly support her or was a hostile environment" (paragraph 12).
Finally, the judge held that the Appellant's removal would interfere with the enjoyment of family life by the child "in a very serious way in that he would leave facing a real prospect of ending up going into care or being abandoned by his mother" (paragraph 13).
7. The appeal was allowed.
The Hearing
8. At the hearing before me on 29th September 2016, Mr Bramble, appearing on behalf of the Respondent Secretary of State submitted that there were a number of factual inaccuracies by the judge. He claimed that originally the reason being dressed up as an asylum claim, and it was properly dismissed by the judge as such, but then when consideration was given to Article 8 the judge had reversed his initial decision. In this respect, the factual errors were as follows. First, the judge had stated (at paragraph 12) that, "It is not possible that she may resort to self harm again if she were left in a shelter in India ...." However, the Appellant had never engaged in self harm. To conclude the possibility of a shelter being available in her own native country on the basis that she may "resort to self harm again", when there was no evidence of any self harm having been inflicted before, was clearly an error of law. The report by Dr Anopana Kapoor of 24th May 2018 does not refer to any self harm at all. At page 25A there are letters from the County Council assessment and at page 38A a report from a wellbeing centre, but neither of these make the remotest reference to self harm. As against this, there was clear support from the two cousins available that the judge had referred to repeatedly. The conclusion was unsustainable.
9. Second, Dr Anopana Kapoor's report was highly speculative when she concluded that the severity of the Appellant's symptoms could be such that "she makes mere suicidal thoughts" when there had been no evidence at all of any suicidal tendencies before.
10. Third, the judge with respect to Article 8 had plainly erred in taking as his premise the proposition that, in relation to the Appellant's child, "It is clearly in his best interests to remain in the UK with his mother. He would have a much better chance of securing an education ..." (paragraph 11). It did not follow that the "best interests" of the child are served by a physical presence in the UK because established case law states that the "best interests" of young children is always to be with the parents, and if the Appellant, as the mother, was to be returned to India, then the child would go with the mother. The child, after all, was only 3 years of age.
11. Finally, in the same way, the judge wrongly concluded on the facts that, "If the Appellant were to be removed, and there were to be an interference with her family life, then as far as the child was concerned, he would leave facing a real prospect of ending up going into care or being abandoned by his mother", as there was no previous history of the mother having abandoned her child.
12. It was to be noted moreover, that no consideration was given to Section 117B of the 2002 Act because the approach taken by the judge had been so much in favour of the Appellant.
13. For her part, Ms Charlton relied upon her skeleton argument. She submitted that it was not the case at all that there was a lack of evidence. Dr Anopana Kapoor's report was comprehensive and clear and provided the basis for the judge's conclusions in this case. It was a well respected psychologist that one was dealing with here and the report was extremely well reasoned. The Appellant had no family living in India that she could return to for support and she had been abandoned by [TS] and she was with a young child facing the grim prospect of returning to a hostile environment.
Error of Law
14. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows. First, the suggestion that the Appellant's son "would have a better chance of securing an education and have a much better standard of living" in India such that his "best interests" would be to remain in the UK does not follow in the light of the established jurisprudence. As the judge himself observed the son "is a very young child and it is plain that he has no significant ties with the UK of a linguistic, cultural or social nature. He is truly of an adaptable age" (paragraph 11).
15. Second, the suggestion that the Appellant may "resort to self harm again if she were left in a shelter in India" belies the fact that there is no evidence to date of self harm on the part of the Appellant. I note the report by Dr Anopana Kapoor that the Appellant "may experience suicidal thoughts due to no support mechanisms or financial aid", is not only without a tangible foundation in fact, but overlooks the situation, as the judge had repeatedly found, that the Appellant's two cousins would be in a position to provide precisely the same sort of support that they have done were the Appellant to be in India which "could go much further in India given the relevant cost of living "(paragraph 10). It is unexplained in the determination how the lack of support in India squares with the support that would be made available by the cousins to the Appellant in India.
Remaking the Decision
16. I have remade the decision on the basis of the findings of the original judge, the evidence before her and the submissions that I have heard today. I am allowing this appeal only to the extent that it is submitted back to the First-tier Tribunal, to be determined by a judge other than Judge Wilsher under Practice Statement 7.2(b) because of the nature of the fact-finding process being such that it is necessary to reach clear findings of fact in relation to the Article 8 claim and the best interests of the child claim.
17. I should add that upon a reconsideration, it will be necessary to look at the aspect of the claim relating to Mr [TS], a person who, notably had a relationship with the Appellant, whereupon a child was conceived and then born to the Appellant, but where both parties had intended to get married and had in fact seen a situation where the Appellant had moved into his Luton home, only then to disappear, in circumstances where there must remain considerable doubt as to his whereabouts and his true intentions. This is a matter that will have to be considered by the judge below.
Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is remitted back to the First-tier Tribunal to be determined by a judge other than Judge Wilsher in accordance with Practice Statement 7.2(b).

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 5th November 2016