LD (Article 8 - Best Interests of Child) Zimbabwe
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake, |
| Judgment Date | 02 August 2010 |
| Neutral Citation | [2010] UKUT 278 (IAC) |
| Date | 02 August 2010 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2010] UKUT 278 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Blake, PRESIDENT
SENIOR IMMIGRATION JUDGE Ward
For the Appellant: G Ward, instructed by Howe & Co.
For the Respondent: Mr J Gulvin, Home Office Presenting Officer
LD (Article 8 — best interests of child) Zimbabwe
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1. Consistent application of the Immigration Rules to promote the economic and social policy of the UK is a relevant factor in carrying out the balancing exercise under Article 8(2) but the weight attached to it depends on the context of the case, whether there was ever any claim under the rules for indefinite leave to remain, and why such claim was not accepted.
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2. In the particular circumstances of this case the weight to be attached to enforcement of immigration control was small in the light of the misdirection as to Paragraph 320 (7A), and the fact that the paragraph applies to all cases whether there is family life deserving respect or not.
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3. The interests of minor children and their welfare are a primary consideration. A failure to treat them as such will violate Article 8(2).
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4. Weighty reasons would be required to justify separating a parent from a lawfully settled minor child or child from a community in which he or she had grown up and lived for most of his or her life. The general situation in the relevant home country is also relevant, especially if it is known that the conditions there are dire (as they are, for example, in Zimbabwe at present).
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5. In this particular case, no useful purpose would have been served if the appellant is required to depart the UK in order to make an entry clearance from abroad. All the issues are to be determined in this appeal rather than in the course of an investigation abroad where there would in any event be an interference.
This is an appeal against a decision of the Secretary of State taken on 17 December 2009 refusing the appellant refugee status and rejecting his human rights claim based upon Article 8 of the ECHR. The appellant appealed to the Asylum and Immigration Tribunal but by the time the Immigration Judge had written his determination dismissing his appeal on 28 February 2010 the AIT had disappeared and this is an appeal from the First-tier Tribunal Immigration and Asylum Chamber to the Upper Tribunal Immigration and Asylum Chamber.
Although the grounds of appeal took issue with the refugee aspect of the claim, asylum has not been pursued as an issue before us. SIJ Jordan granted permission to appeal on the Article 8 issue as he considered that the IJ had not made a rounded assessment of the family life claim on 1 March 2010.
The appellant is a national of Zimbabwe, born in 1965. He first came to the United Kingdom in October 1999 to visit his wife who arrived here in March of that same year. His wife has been ordinarily resident with leave to remain ever since first as a student and then as a nurse and was given indefinite leave to remain in June 2009. There are three children of the marriage: Bessie, born April 1990 now aged 20; Tatenda born March 1996 and now 14 years of age, and Michelle born December 1998 now 11. They also obtained ILR at the same time as their mother.
The appellant has made a number of visits back to Zimbabwe since he first came to the UK. However, it appears that for the substance of the period from his arrival in the UK to date he has lived with his wife and children with immigration leave to remain to do so.
The appellant also applied for indefinite leave to remain but his application was refused on 17 June 2008 because he failed to disclose the existence of a number of drink driving convictions. As a consequence it was considered that his claim to remain was to be refused mandatorily applying paragraph 320 (7A) of the Immigration Rules: making use of a false representation whether or not material to the application or whether or not to the applicant's knowledge.
He made representations against that refusal but it was maintained on 11 September 2008 and a human rights claim to remain was rejected at the same time. That prompted his application for asylum that in turn led to the human rights appeal in the case. In the asylum interview and at the appeal the appellant explained that his failure to disclose his convictions for driving with excess alcohol was because he had thought those convictions were spent.
The Home Office explained its Article 8 decision in December 2009 in the following terms:
“[59] While it is accepted that you currently have a family life in the UK, it is not accepted that your removal to Zimbabwe would interfere with your family life as it is considered that there are no insurmountable obstacles to your family returning to Zimbabwe to live with you. It is well established in the jurisprudence of the AIT and the ECtHR that Article 8 ECHR does not impose on a State any general obligation to respect the choice of residence of a married couple. In the case of Mahmood R (on Application of) v SSHD [2000] EWCA Civ 315, (8 December 2000), the Court of Appeal held that removal or exclusion of one family member form (sic) a State where other members of the family are lawfully resident will not necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin and the family members excluded, even where this involves a degree of hardship… There is a seriousness test which requires the obstacles or difficulties to go beyond matters of choice or inconvenience.
[60]… Furthermore in SS (Sri Lanka) [2004] UKIAT 00126 the Tribunal held that a grant of indefinite leave to remain to the partner of a claimant did not amount to an automatic insurmountable hurdle to the partner's return to the country of origin.
[61] In conclusion, for the reasons given above, it is not accepted that your family life would be interfered with by removing you to Zimbabwe. Therefore, it is not accepted that your removal would lead to a breach of Article 8 ECHR.”
The Immigration Judge first dealt with the asylum appeal then turned to the Article 8 claim. He reminded himself of the five stages for consideration under Lord Bingham's guidance in Razgar [2004] UKHL 27 [2004] 2 AC 368 and then at paragraph [48] said this:
“In considering this appeal I have taken account of Beoku-Betts v SSHD [2008] UKHL 39 and I accept that removal would interfere with the appellant's private and family life and the life of his family. I have little or no evidence to suggest that the appellant had any significant mental or physical health problems. Similarly I have no evidence to suggest that members of the appellant's family have any significant health problems. Whilst I have no doubt that the appellant would rather remain in the UK, I have little reason to doubt that he maintains contact with his family in the normal manner. Arrangements can be made for visits. Some members of the appellant's wife's family still live in Zimbabwe. They can no doubt assist the appellant on his return. On the evidence before me I find that the interference complained of is proportionate to the legitimate aim which is sought to be achieved. The appellant was well aware that he had no right to remain permanently in the UK but in spite of this he made no efforts to claim asylum in spite of claiming to have been in fear of returning to Zimbabwe.”
Article 8 ECHR provides:
“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, of the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Mr Gulvin helpfully and realistically conceded that both the consideration by the Home Office of the claim and the Immigration Judge were flawed and inadequate. We entirely agree. We did not need to call on Ms Ward to argue this appeal for the appellant, although we are grateful for her skeleton argument exposing the weaknesses of the IJ's assessment.
We turn first to the Home Office decision. It will be seen from the passages quoted above that it is entirely based upon the proposition that removal will not amount to an interference with family life. No justification for interference was attempted, although there is no doubt that it intended to remove the appellant to Zimbabwe. The Home Office concluded that this did not amount to interference of the family life he enjoyed with his wife and children in the UK because there were no ‘insurmountable obstacles’ to them returning to Zimbabwe.
This was a plain misdirection. It is somewhat unfortunate to find such a glaring error being made in a decision dating from December 2009 by which time there had...
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