JW (China) and Another v Secretary of state for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Davis,Lord Justice Pitchford,Lady Justice Arden
Judgment Date24 Oct 2013
Neutral Citation[2013] EWCA Civ 1526
Docket NumberCase No: C5/2013/0797

[2013] EWCA Civ 1526




Royal Courts of Justice


London, WC2A 2LL


Lady Justice Arden

Lord Justice Pitchford

Lord Justice Davis

Case No: C5/2013/0797

JW (China)
MW (China)
Secretary of state for the Home Department

Mr Abid Mahmood (instructed by Fountain Solicitors) appeared on behalf of the Appellants

Ms Susan Chan (instructed by the Treasury Solicitor) appeared on behalf of the Respondent

Lord Justice Davis

The first appellant in this case is a Chinese citizen born on 9 October 1991. She entered the United Kingdom illegally with her mother and brother in 2008. The mother then claimed asylum. That claim was rejected. Thereafter, her mother, and subsequently her brother, have disappeared from the first appellant's life. Whether or not they have returned to China is not known.


She then herself claimed asylum in her own right on 22 March 2012. By this time she had had a son, the second appellant, who was born in the United Kingdom on 27 February 2012. The father is Chinese, not a British citizen, and has at no time played any part in his son's life. In fact, he too disappeared from the first appellant's life, doing so when it was discovered that she was pregnant. The son, at all events, now aged one, is not a British citizen.


The claim for asylum was refused by the Secretary of State on 23 April 2012. It was also decided by the Secretary of State that removal of the first appellant and her son would not breach Article 8 and would be proportionate.


They appealed. The matter came before the First-tier Tribunal for hearing on 19 July 2012. The First-tier Tribunal judge, legally correctly, in assessing the asylum claim described the son's claim as dependent on his mother's appeal. But the practical reality now, for reasons that will become clear, is that the mother's current appeal is, in effect, dependent upon her son's appeal.


By determination dated 24 July 2012, the First-tier Tribunal judge rejected the claim for asylum. It was held that removal to China would not involve a breach of Article 3. But the appellant's claim advanced under Article 8 was accepted. It was held that the decision of the Secretary of State was disproportionate and in breach of Article 8. The appeal was therefore allowed on that basis.


From that decision, the Secretary of State in turn sought to appeal. It was said that this conclusion of the First-tier Tribunal judge was perverse. A different First-tier Tribunal judge granted permission to appeal on the footing that the judge's reasoning arguably was "insubstantial", and that it was arguable that the determination contained "insufficient reasoning" to support the conclusion that removal would be disproportionate. It was also noted that in that particular ruling the First-tier Tribunal judge had focused primarily on the economic difficulties potentially facing the appellants on return to China.


On 4 December 2012, Deputy Upper Tribunal Judge Hall, after a hearing, set aside the decision of the First-tier Tribunal judge by reference to Article 8 on the basis of inadequacy of reasons as to the finding that the decision of the Secretary of State was disproportionate. It was noted that the judge's findings with regard to the asylum, humanitarian protection and Article 3 claims had not been challenged by the appellants; and those findings in that regard were preserved.


At a subsequent resumed hearing on 28 January 2013, the deputy Upper Tribunal judge received evidence, including evidence from the first appellant herself, as well as an expert statement recently submitted on behalf of the appellants as to conditions in China. Remaking the decision, the deputy Upper Tribunal judge determined, by determination promulgated on 13 February 2013, that removal of the appellants would not be in breach of Article 8 and would be proportionate.


The appellants then sought to appeal. Upper Tribunal Judge King, on 7 March 2013, refused permission, indicating that the decision of Deputy Upper Tribunal Judge Hall had been fact-specific. However, subsequently permission to appeal to this court was granted on the papers on 2 March 2013 by Sir Richard Buxton. Permission was limited to two grounds. These were first, whether the Upper Tribunal had been justified in setting aside the First-tier Tribunal decision as legally erroneous and in remaking the decision; second, whether there had been a proper approach by the Upper Tribunal to the assessment of the second appellant's best interests and its consequent impact on the decision on proportionality. Sir Richard Buxton refused permission to appeal as to the investigation of the facts relating to the best interests of the child, including as to conditions in China.


Given the nature of the challenge, it is important to set out the relevant parts of the determination of the First-tier Tribunal judge on the Article 8 point. But that itself has to be put into the context of her factual findings on the rejected asylum claim, which findings were, as I have indicated, preserved. In that regard, the First-tier Tribunal judge had considered and applied the country guidance case of AX (Family Planning Scheme) China CG [2012] UKUT 00097 (IAC). The First-tier Tribunal judge went on in effect to make adverse findings of credibility with regard to the first appellant. She found that the first appellant came from Hunan province. She rejected her claim that she would not be able to register on her parents' hukou. Indeed, she rejected the first appellant's claim that the first appellant was unregistered when she left China.


The judge accepted that the child (if they both were returned to China) would be regarded as "unauthorised" and therefore, under Chinese law and practice, a "social upbringing charge" would be payable, albeit at the lower rate, and that would represent a "significant difficulty" for the first appellant. The judge noted, however, that the first appellant would be entitled to apply for voluntary assisted return, and further that Chinese law did not permit civil judgments to be enforced there so as to remove the basic conditions of living. The judge also made an express finding of fact, dealing with any return of the appellants to China, that the first appellant would not be made destitute.


It was also found (and contrary to the first appellant's case) that the first appellant would not be imprisoned if returned to China. Furthermore, the assertion that her son would be taken away from her if returned to China was likewise rejected. It was, however, noted that unmarried mothers were "frowned upon" in China. It was held that the financial consequences of the imposition of the social upbringing charge would not amount to any breach of Article 3. Thus it was that those particular claims entirely failed.


However, as to the Article 8 claim, the First-tier Tribunal judge's entire assessment was contained in four paragraphs of her determination. These were paragraphs 27, 28, 29 and 30:

"27. There remains her claim under Article 8. She arrived in this country aged 16 and has been here for four years. Given the low threshold involved I find that she has private life here. She also has family life with her child but the decision is in accordance with the law and in pursuit of the economic well-being of the country through the maintenance of immigration control.

28. My starting point is the best interests of the child. Those interests are undoubtedly to remain with her mother and it is not proposed that they should be separated. The status of her father is unknown. It has not been demonstrated that he is settled or a British citizen. The child is only a few months old and her mother is clearly the most important person in her life. I also conclude that it is in his best interest to remain in this country. Upon return his mother will face the task of paying the fines/charges referred to above. They will also need to find accommodation and work. She has had limited education and experience. The report produced by Mr Hogg demonstrates that single mothers, aside from paying these fines, face economic difficulties and have much lower living standards than married couples. Indeed it will be difficult for her to find work at all given that she has to look after her child. Until the SUC is paid he will not be registered and will not be entitled free education or medical care. There is also the societal disapproval to face. Bearing in mind all these factors I conclude that it is in the child's best interests to remain in this country with his mother. Nevertheless his best interests, whilst important, are not a paramount consideration.

29. The appellant has known since her arriving here that she had no permanent right of residence although I take into account which she was a minor when she arrived and under the care of her mother. There is little evidence of her private life other than the passage of time. She has lost contact with her mother and brother and is no longer in a relationship with anyone. It is not proposed to separate her from her child.

30. Nevertheless given the degree of hardship that she and her child are likely to face upon return and given his best interests, I find that the decision is disproportionate and in breach of Article 8."


In subsequently deciding that this reasoning was inadequate in law, the deputy Upper Tribunal judge referred to the Court of Appeal decision in VW (Uganda) [2009] INLR 295. In the course of his judgment, Sedley LJ, with whose judgment Wilson and Mummery LJJ...

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