Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003482

First-tier Tribunal No: PA/55988/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

29th April 2025

Before

UPPER TRIBUNAL JUDGE LANDES

Between

A M
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Ahmed (Counsel, instructed by Medlock Solicitors Limited)
For the Respondent: Ms Cunha (Senior Home Office Presenting Officer)

Heard at Field House on 22 January 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and her family members are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant and/or her family members. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. This is the remaking, under section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007 of the decision of the First-Tier Tribunal promulgated on 11 June 2024 insofar as it dismissed the appellant’s appeal from the Secretary of State’s decision of 18 August 2023 on Article 8 ECHR grounds only. This remaking follows my setting aside of that part of the First-Tier Tribunal’s decision dismissing the appeal on Article 8 grounds for material error of law in a decision and reasons issued on 3 December 2024 (see annex below).

Anonymity order

2. Having heard submissions from the representatives, I continue the anonymity order made earlier in this appeal. Although I found there to be no error of law in the dismissal of her appeal against the refusal of her asylum claim, the appellant has been accepted as a victim of a serious sexual assault, she is particularly vulnerable due to the impact the assault has had on her mental health and she has a child whose welfare must be protected. Taking that together, those interests in confidentiality outweigh the strong public interest in open justice.

The remaking hearing

3. With the error of law decision, I gave directions permitting the filing of further evidence relevant to the Article 8 appeal. Further evidence was served, but unfortunately it was not served in a consolidated bundle. Accordingly, when considering the documentary evidence, I have considered the documentary evidence before the First-Tier Tribunal (filed in the appellant’s composite bundle for the error of law hearing) as well as the evidence in the bundle called “appellant’s article 8 bundle”.

4. The representatives agreed that the issues on which I had to make findings were whether there were very significant obstacles to the appellant’s integration into Zimbabwe, what the appellant’s daughter’s best interests were and the overall proportionality of the decision.

5. I heard evidence from the appellant and her brother. They confirmed the truth of their witness statement and letter respectively, were asked updating questions in examination-in-chief and were cross-examined. I asked the appellant some questions.

6. Following the evidence, I heard submissions from both representatives which I summarise below.

7. Ms Cunha reminded me, relying on ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (at [25]) that the best interests of the child were a primary but not a paramount consideration. KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 had endorsed the way the best interests of the child were assessed in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874, looking at the facts as they were in the real world.

8. She submitted that the appellant’s daughter was 5, and she was at school in the UK, but she was being primarily supported by her mother, and her well being was attached to her mother. Her best interests were best served by being with her mother wherever her mother went. There was no evidence that her best interests would be jeopardised by a return to Zimbabwe. The appellant and her siblings had all been well educated and there was no evidence to suggest other than that education was free and reasonably available. Of course, the initial transition might be problematic, but the child would be able to make social and cultural connections in the same way that she did in the UK. The appellant had been able to find work in Zimbabwe, she found work on cruise ships but was able to find work in an office when she was back, and she had been able to find work in the UK and had skills which would be useful to the community. Ms Cunha submitted that she did not seek to underestimate the appellant’s trauma but there would be therapy and assistance for her in Zimbabwe. She was not dependent on medication in order to function. The internet connections might be unreliable but they did still exist so she could keep in touch with family and friends. The appellant and her daughter did not qualify under immigration rules and the public interest outweighed their family life and private life in the UK.

9. Mr Ahmed submitted that I should find the appellant and her brother’s evidence given at the hearing to be credible. The appellant had been largely absent from Zimbabwe since 2015 and had obtained a job on a cruise ship because of the difficulties finding work in Zimbabwe. The appellant had been subjected to a vicious attack, and she would have to live with that for ever; certain things triggered her. She was vulnerable and suffered with depression. In this country the appellant was safe and felt safe and the police usually did things properly. The appellant had no-one reasonably to return to; her sister had also been attacked and she was living with an extended family member but they were all struggling; her brother was sending money and paid for medical care for her sister but it was difficult for him, he had his own family. The appellant’s daughter would be a very sad child if forced to return as she knew no life other than the UK; she was a happy loved child in a safe environment and that life with her uncle, cousin, nephews and nieces would come to an end. She would have no house or family to return to. The appellant had been able to obtain work before but that was before she had been attacked, and before she had a child. Things had changed. A damaged lady with an innocent child should be allowed to remain; she had no male family figure to look after her and return and therapy coming to an end might trigger something which would have an impact on the child’s circumstances. Putting all the factors together he submitted I should conclude that the decision would lead to unjustifiably harsh consequences and would be disproportionate.

Findings and reasons

10. I am satisfied that Article 8 ECHR is engaged given the private life the appellant and her daughter enjoy in the UK. The appellant’s daughter was born in the UK and is now 5 and at school; the appellant has lived in the UK since November 2019 and she is close to her brother and other family members in the UK.

11. My starting point is consideration of whether the appellant satisfies the requirements of immigration rules, as if she does then her removal would be disproportionate TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109.

12. The only immigration rule the appellant could potentially satisfy is paragraph 276ADE (applicable given the date of the appellant’s application to the respondent). For an applicant of the age of the appellant, who has lived in the UK for the length of time the appellant has, to succeed the appellant has to show (on the balance of probabilities) that there would be very significant obstacles to her reintegration into Zimbabwe.

13. In the case of NC v Secretary of State for the Home Department [2023] EWCA Civ 1379 the Court of Appeal endorsed the test referred to in Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813 namely that “the idea of integration calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life”. They continued to explain that the tribunal on appeal must reach a broad evaluative judgment on the question, focussing on the obstacles to integration and their significance to the appellant and the test was not subjective, but extended to all aspects of the appellant’s likely situation on return including objective evidence and required consideration of any reasonable step that could be taken to avoid or mitigate the obstacles [25]. As the test was a practical one, regard must be had to the likely consequences of the obstacles to reintegration which were identified. The likely reality for the appellant on resuming her life in her home country must be considered, given her subjective fear and the availability of support, and any other mitigation must be weighed and the judgment on whether the obstacles to reintegration would be very significant must be reached against that background [26].

14. Even without taking into account the trauma the appellant has suffered, she would still have some difficulties returning to Zimbabwe. She does not have her own home to return to. She was working on cruise ships, and so away from Zimbabwe for long periods of time between 2015 and coming to the UK at the end of 2019, although there was a time of about 4 – 6 months in 2017/18 when she worked as a receptionist in a law firm. When the appellant was between cruise ship contracts she would stay in a friend’s family home. She is still in touch with that friend who has written her a letter of support. The appellant’s sister who suffered a sexual assault at the same time as the appellant is living in Zimbabwe with a distant cousin – unfortunately she now suffers drug-induced schizophrenia and her brother in the UK who gave evidence is supporting her and paying for mental health treatment.

15. I understand that it would be difficult for the appellant’s brother who although he works as a social worker has his own family to support, but if the appellant were not able or not immediately able to support herself and her daughter through work, and if the appellant’s friend whose family home she lived in previously could not assist her, I am satisfied on the balance of probabilities that the appellant’s brother and the rest of the family in the UK would be able to assist the appellant and her daughter to live with her sister and the cousin.

16. Were it not for the trauma caused by the appellant’s assault, I would have no hesitation in concluding that there would be no very significant obstacles to the appellant’s integration into Zimbabwe. It was the country in which she grew up, has lived as an adult, has worked and had a relationship with her daughter’s father, and as set out above, although the circumstances to which she was returning would not be ideal, she would not be destitute.

17. The question is the extent to which the trauma the appellant has suffered and its effects on her would affect her re-integration into Zimbabwe.

18. When considering this question, I have relatively limited medical evidence. The most recent medical evidence is a letter of 15 November 2024 from the appellant’s GP explaining that the appellant has been suffering from stress and anxiety a lot of which stemmed from her sexual abuse in Zimbabwe in 2019. She was having flashbacks affecting her mood and sleep and having counselling for her condition. The bundle for the error of law hearing contained letters in similar terms from the GP of 9 November 2023 and 6 August 2021 which also referred to the appellant having suffered hair loss which was thought to be related or partially related to stress and anxiety. A letter from the counselling service in June 2021, which appears to be an initial assessment, showed that the appellant had mild symptoms of depression and a generalised anxiety score within a healthy range. I am aware that on the completion of a counselling course the service often re-measures anxiety and depression scores, but I do not have that evidence, neither do I have the initial assessments before any counselling courses after 2021.

19. The appellant’s oral evidence was that she was not currently taking medication as it would make her feel drowsy; she had had various therapy sessions and then her GP referred her back to therapy as they thought she could do some further work. She currently had therapy once a week over Zoom so she could fit it in with collecting her daughter from school.

20. Although there was also some evidence about physical health problems in the appellant’s error of law bundle, it was not suggested to me that the appellant had any ongoing physical problems which would be of significance on return to Zimbabwe.

21. Because of the limited medical evidence, I have no expert opinion as to the likely effect on the appellant’s mental health of a return to Zimbabwe. Without undue speculation, I can assess that it is likely to have an adverse effect on her mental health, but it is difficult to say more than that. There will evidently be more triggers affecting the appellant and it will obviously affect the appellant that she has a subjective feeling of lack of safety in Zimbabwe.

22. Nevertheless, despite the appellant’s trauma she has been coping well in the UK. I appreciate she may not want to take medication because it makes her drowsy, but she is managing without it. She is working with permission as a support worker, having worked first at a residential home for older people and then caring for a boy with multiple disabilities. She is living in home office accommodation with her daughter, i.e. not with family members, although she and her daughter do see their family members in the UK, particularly her brother whom she and her daughter see about once a month and videocall often.

23. I also bear in mind that the appellant remained in Zimbabwe for a couple of months after the assault. She may well have had no choice about remaining there, but what is significant was that she was well enough after that time, and after a breakup with her former partner which she described in her witness statement as leaving her “distraught”, to resume her employment on a cruise ship.

24. The appellant presents as a determined woman who has made the most of her opportunities. Making the broad evaluative judgment I have to, and against the background I have described, her anxieties would of course increase on return and there would be an impact on her mental health, so inevitably there would be some effect on her ability to reintegrate. Her subjective feeling of lack of safety would make her more wary particularly of the authorities, given she was assaulted by a group of soldiers. However I am not satisfied on the evidence I have, despite Mr Ahmed’s submissions, that the appellant’s anxieties would affect her to the extent she would not be capable of work or of forming relationships and friendships again, or of looking after her daughter.

25. The appellant has skills from her past work in Zimbabwe and her work in the UK that may well help her in finding work again or would prove to be useful to the community and therefore an aid to her integration. As I have explained, I am not satisfied that she would be destitute, I am satisfied that she would be able to live with her sister and her cousin and she would be able to keep in touch with her family in the UK over the telephone and internet even though it might not be possible for the communication to be as regular as it is in the UK bearing in mind expense and issues with an unreliable power supply. I am satisfied that the appellant’s family in the UK together would ensure that she continued to have access to some type of therapy if she were not working and did not have the funds herself. The First-Tier Tribunal judge was not satisfied that the appellant was at risk on return, or that she could not seek the protection of the authorities and I consider that with time, and therapy if necessary, and once she appreciates that no harm is coming to her and her daughter, her anxieties will lessen.

26. Taking everything together, there would be obstacles to the appellant’s reintegration into Zimbabwe, but I am not satisfied that there would be very significant obstacles; I consider the appellant would still be able to operate within society and to form a private life for herself again.

27. As I am therefore not satisfied that the appellant meets the requirements of immigration rules, I consider more widely whether there would be a breach of Article 8 ECHR bearing in mind in particular the best interests of her daughter as a primary consideration. As explained in GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630 the ultimate test is whether a “fair balance” has been struck between the competing public and private interests. The Supreme Court in Agyarko v Secretary of State for the Home Department [2017] UKSC 11 has endorsed a test, in cases of precarious family and private life of “exceptional circumstances” that is circumstances in which refusal would result in unjustifiably harsh consequences for the individual or a family member such that refusal of the application would not be proportionate, noting of course that “exceptional circumstances” does not entail looking for some highly unusual feature over and above the application of the test of proportionality [60].

28. I am directed by statute to have regard, when determining whether an interference with a person’s right to respect for family and private life is justified under Article 8 (2), to the considerations listed in section 117B of the Nationality, Immigration and Asylum Act 2002. These are:

“(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English –
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons –
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to –
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status was precarious.
(6) In the case of a person not liable to deportation, the public interest does not require the person’s removal where-
(a) the person has a genuine and subsisting relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.”

29. When considering the appellant’s daughter’s best interests, I accept from the evidence and the photographs that she is a happy child well settled into reception year in her primary school in the UK and having very good relationships with her uncle and the rest of her extended family in the UK. As Mr Ahmed puts it, the life she has known in the UK, and of course she has known no other life, will come to an end if she returns.

30. However she is a national of Zimbabwe, even though she has not known life there. She has no specific health needs. She will be able to be educated in Zimbabwe and on my findings above, her mother will be well enough to care for her. She will be able to get to know the appellant’s family in Zimbabwe and there is the possibility of her getting to know her maternal grandfather.

31. Whilst all things being equal and if her mother could remain in the UK, it would be in the appellant’s daughter’s best interests to remain in the UK because things would stay as they are and she is likely to be in an economically better position in the UK, I am not satisfied it would be strongly in the appellant’s daughter’s best interests to remain in the UK. She would in Zimbabwe have the advantage of being brought up in the land of her nationality and cultural heritage and I do not consider it would be detrimental to her welfare to move there. I consider the little girl will be able to make new friends, integrate into the community there and adjust to the environment. She is of an age where her life principally revolves around her mother. As was said by Lewison LJ in EV (Philippines) and endorsed in KO (Nigeria) the assessment of the best interests of children has to be made on the basis that the facts are as they are in the real world and if a parent does not have a right to remain, that is the background against which the assessment is conducted. The ultimate question is whether it is reasonable to expect the child to follow the parent with no right to remain to the country of origin. Looked at in that light, I find it is reasonable to expect the appellant’s daughter to follow the appellant.

32. When taking the proportionality balance and considering the statutory factors set out above, I consider there is nothing to add to the public interest factor of the maintenance of effective immigration controls. The appellant speaks English and is working and so capable of full financial independence and is well integrated into the UK community.

33. When considering the features in favour of the appellant and her daughter I take into account what I have said about the daughter’s best interests as they are a primary consideration. I take into account the appellant and her daughter’s private life in the UK, but I only give little weight to the appellant’s private life bearing in mind she has never had any leave to remain in the UK, her asylum claim was unsuccessful, and she would always have been aware that she could only remain in the UK if she satisfied the requirements of immigration rules. I give some weight to her daughter’s private life even though that has also been precarious, because the little girl was born in the UK and is dependent on the choices adults have made for her, but as set out above, even though I give some weight to her private life, it is still limited given her age and her necessary dependence on her mother.

34. I also take into account in favour of the appellant and her daughter, the difficulties the appellant would face on return to Zimbabwe, even though I have not found them to amount to very significant obstacles.

35. Taking the balance with the appellant’s daughter’s best interests as a primary consideration, I acknowledge that the appellant will find it difficult returning to Zimbabwe as I have set out above, and that it will be disruptive to the appellant’s daughter being removed from everything she knows although as I have said above, I find she will be able to adapt. The decision is a harsh one, but I do not consider it to be unjustifiably harsh. This is because considerable weight must be attached to the respondent’s policy as set out in immigration rules (see Agyarko at [47]). Neither the appellant nor her daughter meets those rules given my finding as to very significant obstacles to integration and that the appellant’s daughter is not old enough to be a “qualifying child”. The appellant and her daughter can continue family life together in Zimbabwe and their claim in respect of their private lives and the difficulties on return, is not, I find, strong enough to outweigh the public interest in the maintenance of effective immigration controls.

36. The decision is proportionate and does not breach Article 8 ECHR. On remaking the appeal on Article 8 grounds, it is dismissed.

Notice of Decision

I dismiss the appeal on Article 8 grounds.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 April 2025

(Annex – error of law decision)

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003482

First-tier Tribunal No: PA/55988/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE LANDES

Between

A M
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Ahmed, Counsel instructed by Medlock Solicitors Limited
For the Respondent: Mr Parvar, Senior Home Office Presenting Officer

Heard at Field House on 9 October 2024

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and her family members are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant and/or her family members. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Background
1. The appellant appeals, with the permission of Judge Grey, the decision of Judge Sweet promulgated on 11 June 2024 dismissing her appeal against the respondent’s refusal of 18 August 2023 of her protection and human rights claims made on 10 January 2020.
2. The appellant is a national of Zimbabwe. She gave birth to a daughter (from a former partner) about a month after arriving in the UK on 10 November 2019. The respondent accepted that the appellant had been a victim of sexual assault in Zimbabwe, but did not accept her claim that she and her daughter would be at risk on return as a result of her and her family’s links with MDC and/or as a lone single mother.
Alleged errors of law
3. It is said firstly that the judge failed properly to engage with the appellant’s claim and failed to provide adequate reasons for finding the appellant not to be credible (para 8 grounds) and that the appellant’s account could be found to be true under the correct burden of proof (para 17 grounds). It is said secondly that the judge erred in failing properly to consider whether the appellant, a vulnerable victim of rape with a young child, would face very significant obstacles to re-integration and that there had been inadequate assessment of the best interests of the child (para 19 grounds).
The hearing
4. Mr Ahmed realistically accepted in his submissions that the second aspect of the grounds was a stronger one. He said the judge’s finding at [19] “as I do not accept that the appellant is at risk on return, there are no very significant obstacles to her integration there…” did not automatically follow. The appellant was a woman on her own with a young child who did not have any family in Zimbabwe or a house to live in. She was having professional support for her mental health. The appellant was damaged and vulnerable, and more was required. That she was a woman who had been seriously sexually assaulted had a clear bearing on whether there were very significant obstacles to her reintegration into Zimbabwe. The judge had said nothing about the best interests of the child other than “as far as the welfare of her child…, is concerned, she would be returning to Zimbabwe with the appellant.”
5. Concerning asylum, Mr Ahmed submitted that although the judge accepted that the appellant was a victim and had been treated as a vulnerable person those factors had not been given proper weight or sufficient weight had not been attached to those factors; whether she would be at risk as a female with a child who had been subjected to horrific acts. We could not guess what was in the judge’s mind.
6. Mr Parvar submitted that the difficulty for the appellant was that the appeal was not well supported by evidence. The skeleton argument before the First-Tier Tribunal did not even plead very significant obstacles and the part which did not reference asylum was mostly case law about the best interests of the child and complaining that the respondent did not consider section 55 issues in respect of the child. The grounds did not rely on any oral submissions made before the First-Tier Tribunal. The judge had found that the appellant had continued to remain in Zimbabwe after the assault and had made findings about the appellant’s life in Zimbabwe and that she would not be at risk. Whilst the reference to the appellant’s child was quite brief, that was not unusual and it was not irrational or inadequate bearing in mind that the appellant had not been successful in her claim for asylum, to say simply that the child’s best interests lay in being with her mother.
7. I indicated at the hearing that I saw no error of law in the judge’s conclusions on international protection, but I wanted to consider the position as far as Article 8 ECHR and the best interests of the appellant’s daughter were concerned.
Discussion and analysis
8. The judge’s relevant findings were as follows although not necessarily in the order the judge put them (references below to his findings as [8 i] and so on are references to this paragraph):
(i) The appellant accepted that she was only a supporter of MDC [10];
(ii) The appellant had lived in Zimbabwe until 2015 without having any issue from the authorities [10];
(iii) The appellant left Zimbabwe in 2015 to work on cruise ships in the USA and had returned on several occasions, staying for 5-6 weeks on each visit [10];
(iv) The appellant worked in Zimbabwe for a legal practice in 2017/18 [10];
(v) Despite the assault in March 2019, the appellant remained in Zimbabwe until May 2019 before returning to the USA to resume her employment [11];
(vi) The appellant said that she had become pregnant in March 2019 and when she told her partner, the child’s father, of the assault he wanted no more to do with her [11];
(vii) The appellant’s brother had made at least two unsuccessful claims for asylum based on political activities and his appeal was unsuccessful. He had obtained ILR based on his relationship [12]. He had returned to Zimbabwe in 2015, 2020 and 2022 without any difficulties [16];
(viii) The appellant would not be at any risk at all on return as a result of her political opinion not least because she had lived in Zimbabwe until 2015 without any difficulties from the authorities [12];
(ix) The appellant’s evidence regarding family members was vague. Her sister, who the appellant said was also assaulted, had drug and alcohol issues and had been living in Zimbabwe having returned from Dubai in 2021 [13]. The appellant’s mother had died in 2015 [11] (this appears to be a typo for 2005 – see [16]);
(x) The appellant had mental health conditions and would be accepted as a vulnerable witness [15];
(xi) The delay in the appellant claiming asylum went to her credibility under the provisions of section 8 of the 2004 Act and her behaviour was designed to mislead. She had deliberately come to the UK and planned to stay in the UK not least to give birth to her daughter and had no intention of returning to Zimbabwe [18];
(xii) The appellant would not be at any risk on return, whether as a lone mother with a daughter, or through her claimed political allegiance. Even if she were at risk, she would not be unable to obtain the protection of the authorities or to relocate [17];
(xiii) As it was not accepted that the appellant was at risk on return there were no very significant obstacles to her integration [19];
(xiv) There were no unjustifiably harsh consequences in refusing her claim, nor was it disproportionate in the light of exercising immigration controls; little weight was to be given to private life whilst her stay was precarious [19];
(xv) The appellant’s daughter would be returning to Zimbabwe with her [19].
9. Judge Sweet’s reasons are succinct. Nevertheless, as far as the political opinion claim is concerned his reasons for dismissing the appellant’s claim are clearly adequate. The judge found that the appellant was only a supporter of MDC [8 i], she had no problems in Zimbabwe before the sexual assault [8 ii and viii], although she had left and returned several times [8 iii]. She had not experienced any problems from the authorities in the time between the assault and leaving Zimbabwe [8 iv], her credibility was damaged [8 ix], and her brother’s claim to be an active supporter/member of MDC and at risk on return was not credible [8 vii]. Those findings were clearly open to Judge Sweet on the evidence before him.
10. The grounds of appeal only make general assertions about credibility and assert that the appellant’s account can be found to be true under the correct burden of proof but do not condescend to particularity as to how the appellant would be at risk. I observe that as far as political activity is concerned, the skeleton argument before the judge asserted that the appellant would be interrogated on her return and would be identified as a non-supporter of the current regime. The skeleton argument asserts that MDC supporters would be subject to persecution on return but of course, country guidance (EM and others (returnees) Zimbabwe CG [2011] UKUT 98) explains that a returnee to Harare (the appellant was born and last lived there) would in general face no significant difficulties because of political opinion if going to a low-density or medium-density area of Harare, and even in a high-density area a person without ZANU-PF connections would not face significant problems unless he or she had a significant MDC profile or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF. There is nothing in the skeleton argument and I was not told of any submissions suggesting that there should be a departure from country guidance. On Judge Sweet’s findings, it would have been perverse for him to have allowed the appeal on political opinion grounds.
11. Judge Sweet’s reasons for finding that the appellant would not be at risk on return as a lone woman with a child who had been a past victim of serious sexual assault are less extensive. However, as Mr Parvar reminds me, it is important to focus on the evidence before the judge and the way the appellant’s case has been put. The appellant’s skeleton argument refers to one of the issues being that the appellant was at risk of serious harm as a lone single mother and a great deal of background material was produced in the bundle but it is not identified with reference to specific parts of that material why the appellant would be at risk. The only reference to the background material in the grounds is at paragraph 14 which is again very general and does not identify the particular material on which the appellant relies to prove her case. It is not said that there were any particular submissions at the hearing with which the judge failed to engage.
12. Judge Sweet’s relevant findings on the issue were that the appellant had a history of employment not only in the UK (where of course she was employed despite her mental health issues), but also within Zimbabwe [8 iv], she had remained in Zimbabwe for about two months after the assault without harm coming to her, despite the fact she could not rely on her former partner [8 v and vi], and the evidence regarding her family members was vague, it appearing the appellant’s sister had returned from Dubai to Zimbabwe [8 ix]. In those circumstances and against the background of little positive evidence put forward (as set out in the paragraph above) it was open to Judge Sweet not to be satisfied even to the low standard applicable that the appellant would be at risk as a lone woman with a child on return. That she was a vulnerable person did not mean of itself that she would be at risk of persecution.
13. There is no error of law therefore in respect of Judge Sweet’s findings on asylum, humanitarian protection, or Article 3 ECHR.
14. Judge Sweet’s findings on very significant obstacles to integration simply relate back to risk on return. If that had been identified as a separate issue with separate factors to be considered, his reasoning would clearly not be adequate. However, the appellant’s skeleton argument did not raise very significant obstacles to integration as a separate issue. The case of Lata (FtT: principal controversial issues [2023] UKUT 163 makes clear that the parties are required to engage in the process of defining and narrowing the issues in dispute; it is for the parties to identify the issues, and proceedings before the IAC are not some form of rolling reconsideration of the parties’ positions.
15. If the appellant did not have a daughter born in the UK, I consider that the judge’s consideration of Article 8 ECHR even though brief, would be adequate bearing in mind the limited issues raised on behalf of the appellant.
16. However, Judge Sweet made no findings at all about the child’s best interests. He did not even make a positive finding about the child’s welfare save as far as it can be implied from the last sentence of [19] that it would be in the child’s welfare to return with her mother rather than remain in the UK without her. Whilst it is right that the appellant’s skeleton argument is factually light even as far as the child’s best interests are concerned, there is extensive reference to case-law on the topic and complaint about the respondent’s failure to consider the child in their decision. The appellant was clearly raising as an issue that the child’s best interests meant that she should be able to remain in the UK, and paragraph [25] of the skeleton argument referenced the guidance from ZH (Tanzania) [2011] UKSC 4 stating that the following factors were relevant “the level of the child’s integration in the UK and the length of his or her absence from the other country, where and with whom the child is to live and the arrangements for looking after the child in the other country; and the strength of the child’s relationships with parents or other family members which will be severed if the child has to move away”.
17. The appellant’s child was born in the UK and about 4 ½ at the date of the judge’s decision. She was at pre-school and had been living with family members in the UK all her life from whom she would be separated if she went to Zimbabwe with her mother. Although it is apparent from the judge’s findings that she would not be at risk of harm which would qualify her for international protection, it was still relevant to consider questions such as where she would live, how she would be supported and whether she would be able to access education. The appellant was accepted to be vulnerable and so the likely effect on the appellant of a return to Zimbabwe and how that impacted (or not) her ability to care for and support her daughter were all relevant considerations.
18. I consider that even though the judge was presented with sparse material with which to work, he needed to make a proper finding, weighing up all relevant factors, about where the child’s best interests lay, and failure to do so was an error of law.
19. I am fortified in my conclusion by CAO v Secretary of State for the Home Department (Northern Ireland) [2024] UKSC 32 although that post-dates the hearing before me. The judgment explains that the responsibility to consider the best interests of a child is now placed firmly on the FTT itself and that if it does not have the information necessary to do that properly, it should exercise its powers to ensure that additional material bearing on that question is obtained and brought before it [46]. Of course, in ordinary circumstances the tribunal would be entitled to assume that the parent has adduced all the relevant evidence which is sought to be relied upon which bears on the issue whether the child’s removal from the UK would be in breach of their Convention Rights and it was not incumbent on the tribunal to cast about to see whether any evidence had been omitted or overlooked [47]. Nevertheless, the next paragraph [48] bears quoting in full:
20. “Although this is the general position, there may nonetheless be circumstances where, even though a point has not been taken, it is obvious that it requires examination in order to reach a proper conclusion regarding the best interests of a child affected by the decision. For example, if a decision affected a child and no attempt at all had been made to consider their best interests, that would be an obvious omission and the FTT would be bound to investigate to make sure that proper consideration was given to that issue: compare R v Secretary of State for the Home Department, Ex p Robinson [1998] QB 929, 945G–946D (Lord Woolf MR) and R (Maguire) v Blackpool and Fylde Senior Coroner [2023] UKSC 20; [2023] 3 WLR 103, paras 141–142. Since in a human rights appeal the FTT is the new primary decision-maker, whose decision supersedes that of the Secretary of State, it is subject to a form of the usual public law duty on a decision-maker to make such inquiries as it may consider to be necessary to inform itself about relevant matters (taking into account the responsibility on the parties in this context to present all the evidence they wish to rely upon in support of their case and the usual justified expectation that they will have done that) and will commit an error of law if, being on notice of a vital gap in the evidence, it irrationally fails to make relevant inquiries to address that: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065B (Lord Diplock); R (Khatun) v Newham London Borough Council [2004] EWCA Civ 55; [2005] QB 37, paras 35–36 (Laws LJ).”
21. Although the review dealt briefly with the child’s best interests, the decision letter was written as if the appellant were without any dependents. Accordingly, CAO indicates that the judge should have made a proper investigation as to the child’s best interests. I am not suggesting that the judge should have adjourned for further inquiries, rather that he should have considered the evidence he had and anything extra he needed to ask the appellant or her witness to make findings as to the factors influencing a child’s best interests as set out in ZH (Tanzania) referred to above.
22. Even ignoring the case of CAO, I find that the judge’s failure to consider the best interests of the child is a material error of law. In ASO (Iraq) v Secretary of State for the Home Department [2023] EWCA Civ 1282 the Court of Appeal described the question of immateriality as whether [43] “it is clear on the materials before the F-tT any rational tribunal must have come to the same conclusion. If that is clear, then any error of law would be immaterial, and the appeal should fail.” The Court of Appeal later in their judgment described the question as “whether, on the evidence which was before the F-tT, any rational tribunal would be bound to reject A’s claim.” [57].
23. Without a proper investigation into the best interests of the child and consideration of the Article 8 matters cumulatively (for example even though the judge had found that there were no very significant obstacles to the appellant’s integration, any difficulties she would face on return to Zimbabwe, together with any difficulties her child would face were clearly relevant for the purposes of the Article 8 proportionality exercise), I do not consider it can be said that any rational tribunal would be bound to reject the appellant and her daughter’s Article 8 claim. Of course there are significant difficulties in the way of the appellant succeeding; she has never had leave and her daughter is of an age where she would usually be expected to go with her mother to her mother’s native country, but I cannot say at this stage that her claim would inevitably fail.
Conclusion
24. Because I have found there to be a material error of law in the judge’s lack of consideration of the best interests of the appellant’s daughter, I set aide the judge’s decision dismissing the appeal on Article 8 grounds. The judge’s decision dismissing the appeal on all other grounds stands.
25. The general principle where an error of law is found is that the case will be retained in the Upper Tribunal for remaking. Mr Ahmed submitted that if an error of law was found on human rights grounds only the appeal should remain in the Upper Tribunal. I have considered the case of Begum (remaking or remittal) Bangladesh [2023] UKUT 46 and the terms of paragraph 7.2 of the Practice Statement and agree that the appeal should be retained for remaking in the Upper Tribunal as it has not been suggested that the appellant has been deprived of a fair hearing and the fact finding will be relatively limited.
26. Mr Ahmed asked for directions about the filing of further evidence. I allow further evidence to be filed relevant to the best interests of the child and Article 8 issues more generally bearing in mind the time that has elapsed since the hearing in the F-tT, that the appellant’s child is likely to have started school, and that there may be further information available now about the appellant’s mental health. I make clear that I do not preserve the judge’s very limited findings on very significant obstacles to integration; the evidence concerning Article 8 ECHR will need to be considered in its totality and looked at in the round.
27. Judge Gill made an anonymity order when considering listing instructions in this appeal because there was a protection claim. Although I have found there to be no error of law in the dismissal of the protection claim, I did not ask the parties for submissions on whether it was appropriate to continue the anonymity order, so it is continued for now; the parties are on notice that at the remaking hearing the question of whether to continue the anonymity order further will be considered.

Notice of Decision
The judge’s decision dismissing the appeal on Article 8 grounds contains a material error of law and is set aside.
The judge’s decision dismissing the appeal on all other grounds stands.
Remaking of the Article 8 decision is retained in the Upper Tribunal.
Directions
1) The resumed hearing will be listed at Field House on the first available date with a time estimate of 2 hours.
2) Either party is at liberty to file and serve further evidence at least 14 days before the resumed hearing relevant to the best interests of the appellant’s child and to the Article 8 case more generally.
3) Any evidence filed and served by the appellant must be in a consolidated electronic bundle properly indexed and bookmarked containing all the evidence relied upon.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 November 2024