Pw Against Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Boyd of Duncansby,Lord Bracadale |
| Judgment Date | 12 May 2015 |
| Neutral Citation | [2015] CSIH 36 |
| Court | Court of Session |
| Date | 12 May 2015 |
| Published date | 12 May 2015 |
| Docket Number | P84/14 |
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...
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