ZH (Tanzania) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses |
| Judgment Date | 26 March 2009 |
| Neutral Citation | [2009] EWCA Civ 691 |
| Date | 26 March 2009 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2008/2321 |
[2009] EWCA Civ 691
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. IA/01284/2008]
Lord Justice Moses
Case No: C5/2008/2321
Mr B Hawkin (instructed by Messrs Raffles Haig) appeared on behalf of the Appellant.
Ms S Chan (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
Lord Justice Moses:
This is an appeal, following permission given by Ward LJ after oral submissions, in relation a citizen of Tanzania, who has persistently resisted attempts to deport her. The history is of significance since it casts light on the view the tribunal took of the evidence which they heard. The hearing by the tribunal was a second stage reconsideration and was promulgated on 5 August 2008. In short, the tribunal refused her appeal on reconsideration in relation to her application for leave to remain in the United Kingdom and against the directions given for her removal from the United Kingdom to Tanzania. All that remained for their consideration was the submission that, by reason of the family relationship of her two young children and their father, it would breach their rights enshrined in Article 8 of the Convention, to return her to Tanzania.
It is necessary to consider the facts leading to that determination, since, as I have indicated, they explain in part the conclusion that the tribunal reached. The appellant, as I have said, is a citizen of Tanzania, and in December 1995 arrived in the United Kingdom. Thus, at the time of the decision, she had been here thirteen years. Her claim for asylum was refused in June 1997. After she appealed she absconded and her appeal was dismissed. Over the following year she made two further asylum applications, unfortunately in different identities.
Whilst in the United Kingdom she started a relationship with a British citizen, KP, and the couple had two children together, a daughter born in June 1998 and a son born in July 2001; thus they were, at the time of the hearing, ten and seven.
This appeal is particularly focussed upon the impact of a decision to remove both on Mr P and on the two children.
It is important, having regard to the challenge to that determination, to record that the tribunal on reconsideration identified the error in law of the immigration judge who had originally refused the claim. As they recorded, the judge had failed to consider the effect on the Article 8 rights, particularly of the children, when considering whether there would be a breach of Article 8 in removing the appellant.
It is in that context that this court has had to consider a similar challenge to the determination in the instant appeal. The tribunal set out important evidence which went to consideration of the effect on the family as a unit; in particular the effect on Mr P if his young children went to live with the appellant in Tanzania; the effect on the appellant if the children were to remain in the United Kingdom; and the effect on the children themselves, who are British citizens and have spent their whole life, made friends and been educated within the United Kingdom.
The determination records important features of the evidence relating to the health of Mr P. This was relevant to the question whether he would be fit enough and able to look after the children should they remain in the United Kingdom. They record evidence from a support worker, described as a community HIV support worker, because unfortunately Mr P suffers from HIV. They record a report from a doctor, an expert in infectious diseases, who speaks not only of the effect of his suffering from HIV, but importantly also an aggravating feature of his medical condition, namely his alcohol abuse. He drinks, so the letter reports, something between twelve to fifteen cans of what is described as strong Stella with a moderate amount of Bacardi. Thus the material upon which the appellant relied to establish the difficult medical condition of the father of the children was clearly before the tribunal.
The tribunal recorded evidence given by the appellant and by Mr P to the effect that he would not be able to look after the children. In giving its findings and reasons, the tribunal recorded the effect of the decision of the House of Lords in Beoku-Becks v SSHD [2008] 1 AC 115 in terms which are not challenged, directing their attention to the nature of the family life and family unit as a whole. They recorded in their determination at paragraph 5.3 that there was family life existing between the two children and their mother on the one hand and Mr P on the other. They did so with accuracy, since the appellant and Mr P had split up some two years before. They did not live together. But, nonetheless, they recorded that the father looked after and maintained contact with the children and, to the extent that he was able, supported them with a proportion of the Disability Living Allowance in the sum of about £30.
The tribunal recorded their conclusion that the children could remain within the United Kingdom living with their father. This was a matter of some controversy, as I have indicated, and remained a matter of controversy during the course of this appeal. That controversy was not surprising, since originally the representative of the Secretary of State for the Home Department had not challenged a conclusion that the children could not remain with their father. But the tribunal concluded, at paragraph 5.11, that there was a distinct and very real possibility that they could remain with their father. They did so on the basis of what they described as the highly unsatisfactory nature of the medical evidence in relation to Aids, and, stemming from a comment recorded from Mr P himself, that, with his children there with him, it would encourage him to be more positive in his outlook. The tribunal commented that they took the view that, were he to take over primary responsibility for them, he might well find even greater motivation to overcome his difficulties. They rejected the suggestion that, by reason of his suffering from HIV, he would be unable to discharge his parental responsibilities.
They also then considered the question as to the effect on the children if they were to remain in the country. In doing so, they said this:
“[N] [that is, the eldest child] certainly was of such an age that in many circumstances parents choose to be separated from their children and send them away to boarding school, possibly even in another country. Many African children are sent to boarding school in this country by their parents in Africa. It may be that [J] was, and is, of an age when most people would regard him as too young to go away to school but the evidence is that he gets on well with other boys and is a sociable child [he was only seven at the time]. If he were a child of Muslim parents. He would in many Muslim cultures be regarded as old enough to live with his father as opposed to his mother on their separation. We reason that it follows that it would not by any means be unthinkable or indeed in any way socially unacceptable for them to remain with their father, as opposed to their mother, if she were to be removed, and there would be no reason, apart from financial constraints, why they could not visit her in Tanzania during their school holidays.”
They then turned to consider the effect upon the children. They noted that the children at that age would be adaptable and were facing a change of school in any event (see paragraph 5.15). They then continued to consider the question of the effect on the children of their going with their mother to Tanzania, and said:
“Equally, the appellant and Mr [S] might regard it as being in the children's best interests to accompany the appellant upon her removal to Tanzania. That would be a very valid decision. Tanzania is not an uncivilised place. It is by no means inherently dangerous [and then words omitted]. Tanzania is one of the better established and more successful free democracies in Africa. We do not accept that the children can be completely unfamiliar with Tanzania. The appellant must have told them about it by way of explanation of their ethnic origin. It is by no means impossible that they might like it there. For the same reasons that we find Mr [S] to be not incapable...
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