Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 36

P84/14

 

Lord Bracadale

Lord Drummond Young

Lord Boyd of Duncansby

 

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in the Petition of

PW

Petitioner and Respondent;

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent and Reclaimer:

for

Judicial Review of a decision by the Upper Tribunal (Immigration and Asylum Chamber)

to refuse to grant the petitioner permission to appeal

 

Petitioner and Respondent:  Dewar QC, Caskie;  Drummond Miller LLP

(for Latta & Co, Solicitors, Glasgow)

Respondent and Reclaimer:  Komorowski;  Office of the Advocate General

 

 

12 May 2015

The background to the petition
[1]        The petitioner and respondent (hereinafter referred to as “the petitioner”) is a national of China, born in 1984.  The respondent and reclaimer is the Home Secretary, and is responsible for the enforcement of immigration and nationality legislation and related provisions.  The petitioner arrived in the United Kingdom on 7 February 2008 and claimed asylum and leave to remain in the United Kingdom in accordance with the Human Rights Act on 24 January 2013.  By letter dated 28 February 2013 the Home Secretary refused her asylum claim and refused leave to remain.  The petitioner appealed against the refusal to the First-tier Tribunal.  On 19 April 2013 judge of the First-tier Tribunal refused the appeal.  The petitioner then applied for permission to appeal to the Upper Tribunal, and prepared detailed grounds of appeal to that end.  On 15 May 2013 a judge of the First-tier Tribunal refused the application for leave to appeal.  The petitioner then applied to the Upper Tribunal for permission to appeal against the decision of 19 April, but that application was refused by a judge of the Upper Tribunal on 11 June 2013.

[2]        Thereafter the petitioner raised proceedings in the Court of Session for judicial review of the decision of the Upper Tribunal refusing to grant permission to appeal against the original decision of the First-tier Tribunal.  She sought reduction of the decision of the Upper Tribunal.  The case called before the Lord Ordinary for a procedural first hearing on 20 March 2014, and on 4 April 2014 the Lord Ordinary granted decree of reduction of the decision of the Upper Tribunal.  The Home Secretary has reclaimed against that decision.

 

The hearings before the First-tier and Upper Tribunals
[3]        The petitioner based her claim for asylum on two matters, her alleged activities in relation to the sect known as Falun Gong and the risk of discrimination on return to China under what is known as the One Child Policy.  The First-tier Tribunal held that her account of Falun Gong activities was not credible, and rejected that part of the claim.  That aspect of the petitioner’s case is no longer live.  That was not sufficient to dispose of her claim to remain in the United Kingdom, however, because on 11 September 2012 she gave birth to a son, and she claims that she and her son would suffer adverse consequences in the event of return to China.  The background to the birth of her son is as follows.  The appellant came to the United Kingdom on a valid student visa in February 2008, and studied until June 2010, her leave being extended on three occasions.  She applied for a further extension on 2 June 2010, but this was refused, and her last visa expired on 23 June 2010.  After that she lived illegally in the United Kingdom until she claimed asylum on 24 January 2013.  She supported herself by working illegally and entered into a relationship with a Chinese national living in the United Kingdom while they were both living in London.  The man with whom she had a relationship had no status in the United Kingdom and did not claim asylum.  The petitioner’s son was born as a result of that relationship.  She and the father had fallen out in late 2012, and she had not had any contact with him since then.

[4]        After rejecting the asylum claim, the judge of the First-tier Tribunal accepted that it was necessary for him to consider whether the petitioner and her son would be at risk on return to China as a result of what is known as the One Child Policy.  The judge followed the country guidance provided by the Upper Tribunal in the most recent country guidance case, AX (Family Planning Scheme) China Country Guidance, [2012] UKUT 00097.  On the basis of that case he held that there were no specific risk factors that would place the petitioner at a greater risk of harm than any other persons returned to China, and consequently the asylum claim based on the position of the child must fail.  The judge then went on to consider the best interests of the petitioner’s child.  He observed that the child was six months old at the time and totally dependent on his mother.  She was a citizen of China with no status to remain in the United Kingdom, and the same was true of his father.  The only factors put forward to suggest that it was not in the child’s best interests to remain with his mother were that if he were returned to China the family might face difficulties as a result of the One Child Policy; in particular there might be difficulties over the payment of fine for breaching the policy and the child would not be an authorized child under the policy and thus might not have the same educational opportunities as a child with Hukko, that is to say, the privileged access to schools and other facilities which an authorized child would have.  The judge concluded that, because of the child’s very young age, less than one year at the time of the hearing, his best interests could only lie in remaining with his mother, whether that was in the United Kingdom or China.

[5]        The judge then considered the general impact of article 8 of the European Convention on Human Rights on the petitioner and her child.  It was accepted that the petitioner and her child had established a family life in United Kingdom and that the petitioner had also established a private life.  The judge addressed the five-stage approach set out in Razgar v Home Secretary, [2004] 2 AC 368; [2004] UK HL 27.  He concluded that removal to China would not interfere with the family life of the appellant and her son, and that part of the petitioner’s case therefore fell at the first stage.  Private life was different, however.  The judge concluded that, although the petitioner had established a private life in the United Kingdom, she had very substantial ties to China, where she had spent the first 24 years of her life; she had only spent five years in the United Kingdom, and for approximately half of that time had been here illegally.  It was also clear that she had a number of family members in Fuqing City in China.  On that basis the petitioner had failed to establish that she had no social, cultural or family ties with China, and she was unable to succeed under paragraph 276ADE of the Immigration Rules.  Finally, the judge considered the position outside the rules.  On the evidence, social ties within the United Kingdom were confined to the child’s father;  there was no evidence to suggest any other social ties here, or any close friendships or involvement in community activities or other recreations.  That had to be set against the aim of effective immigration control, and the judge indicated that he had no hesitation in coming to the conclusion that the balance favoured the Home Secretary’s position.  The article 8 appeal was therefore dismissed.

[6]        As already indicated, an application for leave to appeal to the Upper Tribunal was refused twice.  The second refusal, by Judge Macleman of the Upper Tribunal, rejected the individual grounds put forward on behalf of the petitioner.  So far as the best interests of the child were concerned, he held that the ground of appeal amounted to a disagreement with the conclusions of the judge of the First-tier Tribunal, but he could see no arguable legal error in the conclusions that it was in the best interests of the child to remain with his mother and that there was nothing disproportionate in expecting removal of mother and child to China.

 

The Lord Ordinary’s decision
[7]        When the latter decision was made the subject of judicial review, the Lord Ordinary held that it was necessary to identify a ground for judicial review, which could be error of law or could be other established grounds such as Wednesbury unreasonableness or procedural impropriety;  in SA v Home Secretary, [2013] CSIH 62, at [15], it had been said that it was necessary to identify an error of law on the part of the Upper Tribunal, but the Lord Ordinary thought that this had to be widened in the case of judicial review.  He considered that to mischaracterize an error of law as an error of fact was itself an error of law.  On that basis, the Lord Ordinary considered the grounds of appeal that had been advanced before the Upper Tribunal.  He rejected the first six of these, but granted reduction of the Upper Tribunal’s decision on the basis of the seventh ground.  This ground related to the best interests of the petitioner’s child; it was contended that the judge of the First-tier Tribunal had assessed the evidence as to whether it was in the child’s best interests to remain in the United Kingdom on the basis that it was not in his best interest to remain with his mother, and had assumed that the mother would be sent to China.  There had been no suggestion that the child should be separated from his mother, and the judge should have considered whether it was in the best interests of the child to be in the United Kingdom with his mother or in China with his mother.

[8]        Before the Lord Ordinary it was submitted that the immigration judge had failed to assess the best interests of the child as a distinct inquiry, separate from any question relating to the public interest in maintaining effective immigration control.  Reference was made to the recent decision in IE v Home Secretary, [2013] CSOH 142;  it was argued that that decision contrasted with the decision of the Upper Tribunal in Azimi-Moayed and others (decisions affecting children; onward appeals), [2013] UKUT 00197, which suggested that the starting point was that it was in the best interests of children to be with their parents and that, if the parents were removed from United Kingdom, then so should dependent children unless there were reasons to the contrary.  It was submitted that the conflict between those two decisions was one of importance that deserved clarification, and that would satisfy the first limb of the test in Eba v Advocate General, 2012 SC (UKSC) 1, namely that there was a point of law of general importance that required to be determined. 

[9]        The Lord Ordinary decided that this ground of appeal did raise an important point of principle or practice.  The law did not appear to be clear, even following the more recent decision of the United Kingdom Supreme Court in Zoumbas v Home Secretary, 2014 SC (UKSC) 75.  The judge of the First-tier Tribunal had accepted that the best interests of the child had to be addressed first as a distinct inquiry, but that was not the same as recognizing that the best interests of the child should not be assessed on the basis that the parent would necessarily leave the United Kingdom.  Moreover, there might be a clash between the decisions in IE and Azimi-Moayed, which required to be clarified.  The decision of the Upper Tribunal judge in refusing permission to appeal was subject to judicial review;  it was not clear whether the judge had actually addressed the question of whether the point raised in ground 7 was a point of law or point of fact, and if it was a point of law that was arguable his decision that there was “no arguable legal error” was manifestly bad.  The decision to the contrary was Wednesbury unreasonable.

 

The present appeal
[10]      The Home Secretary has reclaimed against the Lord Ordinary’s decision on two grounds.  First, it is said that the Lord Ordinary had been in error in holding that the case raises an important point of principle or practice in relation to the best interests of the child.  The law had been fully established in Zoumbas, at paragraph [25], to the effect that the assessment of the child’s best interests could not be said to be flawed merely because it assumed, provisionally,  that parents would be removed.  It was legitimate to ask first whether it was proportionate to remove the parents had there been no children and then, in considering the best interests of the children in a proportionality exercise, to ask whether their well-being altered that provisional balance.  Furthermore, an argument had been presented to the First-tier Tribunal that return to China could result in a fine for violation of the One Child Policy and disadvantages so far as educational opportunities were concerned.  That was rejected on the basis of the relevant country guidance from the Upper Tribunal in AX (Family Planning Scheme) China Country Guidance, supra.  Secondly, the Lord Ordinary had erred in holding that the Upper Tribunal had been guilty of an error when refusing permission to appeal on ground 7.  The Upper Tribunal had on one reading simply said that the First-tier Tribunal was clearly correct in its decision.  Alternatively, the Upper Tribunal’s decision that no arguable error of law arose was manifestly correct.  The only detriment suggested as arising from removal to China was that a fine might be imposed and the child might suffer disadvantages, but these were rejected as being contrary to the relevant country guidance in AX.  The decision to follow that country guidance was not criticized, and accordingly the Upper Tribunal was correct to say that there was no arguable error in the conclusion that there was nothing disproportionate in the removal of the mother and child to China.

 

Whether the case discloses an important point of principle or practice
[11]      It is clear from the decisions in Eba v Advocate General, supra, A v Home Secretary, [2013] CSIH 62, and EP v Home Secretary, [2014] CSIH 30, that a right of appeal or judicial review in respect of the decision of the Upper Tribunal will only be available if either the case raises "an important point of principle or practice" that has not been previously determined, or there exists "some other compelling reason" for permitting recourse to the courts.  In the present case it is the first of these grounds that is advanced.

[12]      We are of opinion that no important point of principle or practice arises in this case, and that the Lord Ordinary was wrong so to hold.  The point of principle or practice accepted by the Lord Ordinary is not entirely clear from his opinion, but it appears to be the question of the approach that immigration officials and Tribunals should take when assessing the best interests of a young child where it is agreed that the child’s best interests are to remain with his or her parents: should that assessment proceed on the assumption that the parents will be removed from United Kingdom, or should it address the question of whether it is in the child’s best interests for the whole family to be in the United Kingdom or abroad?  We agree that the difference between those approaches could have been an important point of principle or practice if it had not already been decided.  We consider, however, that the matter has been determined definitively in Zoumbas v Home Secretary, supra.  That case makes it clear that the correct approach is the second.  In the case of a very young child, it will almost invariably be in his or her best interests to be part of the family, and in that event the assessment of the child’s best interests under article 8 must proceed by considering whether it is in the child’s best interests for the whole family to remain in or be removed from the United Kingdom.

[13]      Zoumbas involved a family where both parents were citizens of the Republic of Congo.  They both made asylum claims, which were refused.  While living in the United Kingdom they had three children.  The father, who was the sole appellant, made further representations to the effect that there had been a change of circumstances because the family had been in the United Kingdom for several years and had established a family and private life; this called for protection under article 8 of the Convention.  That claim was rejected by the Home Secretary, and the appellant challenged her decision, asserting that the manner in which the Home Secretary had dealt with the best interests of the children contravened article 8.  A petition for judicial review was dismissed by the Lord Ordinary, a reclaiming motion was refused by the Inner House and a further appeal to the United Kingdom Supreme Court was also refused.  Before the United Kingdom Supreme Court the Home Secretary’s decision was challenged on a number of grounds (paragraph [3]).  One of these was that the findings of the Home Secretary had assumed that the appellant and his wife would be returned to the Republic of Congo, rather than considering the interests of the children in the context of what would happen to the whole family.  Thus the challenge asserted that the Home Secretary had looked at the children’s interests in isolation, on the assumption that the parents would be removed.

[14]      It was held (at paragraph [24]) that there was no irrationality in the conclusion that it was in the children’s best interests to go with their parents to the Republic of Congo. 

“No doubt it would have been possible to have stated that, other things being equal, it was in the best interests of the children that they and their parents stayed in the United Kingdom so that they could obtain such benefits as health care and education, which the decision-maker recognised might be of a higher standard than would be available in the Republic of Congo.  But other things were not equal.  They were not British citizens.  They had no right to future education and health care in this country.  They were part of a close-knit family with highly educated parents and were of an age when their emotional needs could only be fully met within the immediate family unit.  Such integration as had occurred into UK society would have been predominantly in the context of that family unit”.

 

For present purposes, the critical feature of this passage is that the best interests of the children are considered from the standpoint of the whole family unit, parents and children.  On that basis the question was whether it was preferable, in considering the best interests of the children, that the family as a whole should stay in the United Kingdom or go abroad.  That by itself seems to indicate that the point of principle or practice identified by the Lord Ordinary has already been decided. 

[15]      The opinion in Zoumbas then continued (at paragraph [25]):

“Finally, we see no substance in the criticism that the assessment of the children’s best interests was flawed because it assumed that their parents would be removed to the Republic of Congo.  It must be recalled that the decision-maker began by stating the conclusion and then set out the reasoning.  It was legitimate for the decision-maker to ask herself first whether it would have been proportionate to remove the parents if they had no children and then, in considering the best interests of the children in the proportionality exercise, ask whether their well-being altered that provisional balance.  When one has regard to the age of the children, the nature and extent of their integration into UK society, the close family unit in which they lived and the Congolese citizenship, the matters on which [the appellant] relied did not create such a strong case for the children that their interest in remaining in the United Kingdom could have outweighed the considerations of which the decision-maker relied in striking the balance in the proportionality exercise”.

 

That formulation, read in context, makes three matters clear: first, the order in which the interests of the parents and the interests of the children are considered does not matter, provided that in the final assessment the best interests of the children are considered as a primary consideration; secondly, if the position of the parents is considered in isolation, the resulting balance can be no more than provisional; and thirdly, if that is done, there must be a further stage where the best interests of the children are considered in the context of the whole family unit, to discover whether that alters the provisional balance.  That analysis makes it quite clear that ultimately it is the position of the whole family unit that matters in assessing the best interests of the children.

[16]      The Lord Ordinary, in deciding that there was an important point of principle or practice to be decided, had regard to the decision of Lord Tyre in the Outer House in IE, supra, and that of the Upper Tribunal in Azimi-Moayed, supra, and expressed the view that there might be a conflict between them which requires to be determined.  In the light of Zoumbas we are of opinion that there is no such conflict.  In IE it was held that the Home Secretary had erred in her approach to the best interests of the children, in that she treated the petitioner’s immigration status and her removal from the United Kingdom as a factor in considering what was in the children’s best interests.  On that basis it was held that the best interests of the children should not be assessed on a factual assumption that the petitioner would be removed (paragraph [14]).  That approach is in our opinion consistent with that in Zoumbas;  the critical point is that in the final assessment of the children’s best interests the position of the family unit must be examined.  The different results in the two cases are readily explained by the difference in the relevant decision letters.

[17]      In Azimi-Moayed the Upper Tribunal held (at paragraph 13) that the best interests principle does not mean that it is automatically in the interests of any child to be permitted to remain in the United Kingdom, irrespective of age and family background.  A number of principles were identified: the first of these was expressed as follows

“As a starting point it is in the best interests of children to be with both their parents and if both parents are being removed from the United Kingdom then the starting point suggests that so should dependent children who form part of their household unless there are reasons to the contrary”.

 

That is likewise fully consistent with the decision in Zoumbas.  It is recognized that the interests of young children are almost invariably to be with their parents, and if the parents are removed from the United Kingdom the primacy of the family unit  means that the children should go to in the absence of reasons to the contrary.

[18]      For the foregoing reasons we are of opinion that no important point of principle or practice that has not already been decided has been identified in the present case.  On that basis the reclaiming motion must be allowed.  We should add that the decision of the First-tier Tribunal, in its treatment of the best interests of the petitioner’s child, gives specific consideration to the disadvantages that the family might suffer if returned to China, namely payment of a fine and the loss of educational opportunities.  These are clearly directed towards the position of the family unit, mother and child, if returned to China.

 

The Upper Tribunal’s decision that no arguable error of law arose
[19]      A second argument was presented on behalf of the Home Secretary, namely that in any event no arguable error of law occurred in the decision of the Upper Tribunal.  Although it is not strictly necessary, we will briefly consider this ground.

[20]      The Upper Tribunal rejected the final ground of appeal, ground 7, on the basis that it disclosed no arguable legal error in the conclusions that it was in the best interests of the child to remain with his mother and that there was nothing disproportionate in expecting removal of mother and child to China.  Ground 7 was described as a disagreement with the First-tier Tribunal’s conclusion centred on the best interests of the petitioner’s child.  The First-tier Tribunal considered the interests of the child (paragraphs 39-1), and then went on to consider the implications of article 8 of the Convention (paragraphs 42-46).  The judge noted that the child was six months old and totally dependent on his mother.  The argument presented for the petitioner was that, if the child were returned to China, the family might face difficulties over the payment of fine for breaching the One Child Policy, and the child might not have the same educational opportunities as a child with Hukko (see paragraph [4] above).  The judge rejected that argument as not being in accordance with what was stated by the Upper Tribunal in AX, supra.  Thus he held on the facts that the possible disadvantages the child might face on return to China were unlikely to occur.

[21]      It is contended for the Home Secretary that on the foregoing basis the Upper Tribunal was entirely justified in holding that there was no arguable legal error; the issue in dispute was one of fact.  Furthermore, it is argued that there could be no important point of principle or practice in the particular case.  Even if there were an error on the part of the Upper Tribunal, all that it involved was the misapplication of country guidance to the facts of the particular case, and that could not be described under any circumstances as an important point of principle or practice.

[22]      The Lord Ordinary held (at paragraph [31] of his decision) that it was not clear whether the judge of the Upper Tribunal had actually addressed the question of whether ground 7 raised a point of law arising from the decision of the First-tier Tribunal; on one reading the judge was simply saying that the First-tier Tribunal was clearly right.  Nevertheless, the Lord Ordinary thought that the Upper Tribunal’s decision that there was “no arguable legal error” was manifestly bad; any decision to the contrary was unreasonable.

[23]      In our opinion the argument for the Home Secretary is correct, and the reclaiming motion must therefore be allowed on this ground as well as the first ground.  In assessing the best interests of the child the First-tier Tribunal was obliged to consider any adverse consequences in the event of his being returned to China.  The judge concluded, in the light of the country guidance in AX, that there should be no difficulty with either payment of a fine or loss of educational opportunities.  In our opinion that is clearly a conclusion that he was entitled to reach.  On that basis the Upper Tribunal were fully entitled to conclude that there was no arguable error of law.  It must be said that the discussion of the best interests of the child by the judge of the First-tier Tribunal could perhaps have been better structured, in that reference is made to his mother’s immigration status as part of that discussion.  Nevertheless, as a matter of substance it is clear to us that the judge did properly consider the factual issues that were raised by the petitioner, namely the possible payment of a fine and loss of educational opportunities.  It was on that basis that he decided that it could not be said that the child would be in a materially worse position if returned to China than if he remained in the United Kingdom, and that accordingly his best interests lay in remaining as part of the family unit with his mother.

[24]      For the petitioner it was contended that the decision of the Upper Tribunal in AX was to the effect that the consequences of breaching the One Child Policy did not involve a breach of article 3 of the Convention (paragraphs (6)-(9) of the headnote); it did not follow, however, that there were no adverse consequences for a child born in contravention of the Policy.  Whether that meant that it was in the child’s best interests to remain in the United Kingdom was a question to be addressed as part of the article 8 assessment.  It is correct that the substance of the decision in AX related to article 3.  Nevertheless, the decision indicates that large numbers of unauthorized children are born every year, and that the financial and other consequences are generally easily manageable.  For these reasons we cannot agree that the Upper Tribunal erred in law or acted unreasonably in holding that no arguable error of law was disclosed in the decision of the First-tier Tribunal.

[25]      For the foregoing reasons we will allow the reclaiming motion, recall the interlocutor of the Lord Ordinary, and refuse the prayer of the petition.