ZH (Tanzania) v Secretary of State for the Home Department

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 of discharging his parental responsibilities by looking after the children in this country, we find that there are no reasons why Mr [S] should not from time to time travel to see the children in Tanzania if they were to accompany the appellant on her removal.”

Thus, the tribunal concluded that the children could be relocated in Tanzania and that their father could visit them. In particular, they noted that his condition was not such as to prevent him visiting, since they record that many people infected with HIV travel as ordinary tourists.

There then occurred an incident which has assumed some importance in this appeal. They record that at the conclusion of the hearing a note was passed to them from Mr P saying that he did not think he could travel to Tanzania because of his financial circumstances, namely he was in receipt of a disability living allowance. They rejected that argument and said that they had heard no satisfactory evidence indicating that he could not work in the future, nor any evidence that the appellant could not work on her return to Tanzania.

So they took the view that the evidence in relation to the family life of the children and in relation to their mother and father was not such as to lead to the conclusion that it was disproportionate for the mother to be removed to the country.

During the course of their decision they made a number of adverse comments upon the evidence that they had heard from both the father and the mother. They recorded the history of the appellant in her dishonest attempts to remain in this country, and that she had failed to be honest and straightforward at the hearing before them. They record that she knew full well that her immigration status was precarious before she had the children whilst acknowledging that the children were innocent of her shortcomings. They also cast doubt upon the evidence they heard from Mr P; in particular he had said that his parents with whom he lived scarcely knew the children. They rejected that evidence.

The approach of the tribunal, as a matter of law based upon looking at the family unit as a whole, is not itself challenged. But, by way of fundamental submission as to the law, Mr Hawkin courageously contends that the fact that the children are both British citizens who have never been to Tanzania, and would, therefore, if they were to go on living with their mother, be uprooted from a country where they have, by virtue of their citizenship, the right to remain, itself trumps all other considerations and determines the conclusion that it would be a breach of their rights under Article 8 that breach should prevent the removal of their mother, with whom they might reasonably be expected to remain.

That their British citizenship is a trump card determining the conclusion is a submission of law that seems to me wholly inconsistent with the approach of both the House of Lords and this court to the problems which have arisen in relation to consideration of Article 8. All the jurisprudence by which this court is bound seems to me to point to exactly the opposite conclusion, namely that whilst the British citizenship of the children, whose Article 8 rights are certainly in issue, is an important factor, it is not dispositive. This is not the case for a full review of all the authorities; it is, in my view, sufficient to point to certain features of the dicta in the by now oft-cited cases which demonstrates the falsity of Mr Hawkin’s submission.

In EB (Kosovo) v SSHD [2008] 3 WLR at page 178, Lord Bingham spoke of the absence of any hard-edged or bright-lined rule to be applied to the generality of cases. He emphasised the difficult evaluative exercise which Article 8 requires. In paragraph 12 he said:

“It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case.”

The very premise upon which those important dicta are based is that there is no dispositive factor based upon the citizenship within this country of the spouse who may have to follow the removed spouse or the children whose relationship may be severed. If the citizenship of the spouse was dispositive, or of the children, then there would be no necessity to consider the question as to whether they could reasonably be expected to follow the removed parent or the removed spouse.

That that is the inevitable conclusion of those dicta is confirmed in the more recent decision of this court VW (Uganda) v SSHD [2009] EWCA Civ at 5. Sedley LJ in that case drew from the passages that I have cited within EB (Kosovo) the proposition that the inquiry must be focussed upon whether it is reasonable to expect a spouse entitled to be in this country by way of citizenship, looking at the question of proportionality by way of a balanced judgment of what could reasonably be expected in the light of all the material facts (see paragraph 19). He elaborated that approach at paragraph 31 of the judgment, in which he pointed out that:

“The question in any one case will be whether the hardship consequent on removal will go far enough beyond this baseline to make removal of disproportionate use of lawful immigration controls. This in turn will depend, among other things, on the severity of the interference. If the appellant’s partner, for example, is familiar with Uganda, the consequences of removal might be that much less severe; but the impact on the rights attending his citizenship of this country will still weigh heavily in the scales.”

That language is wholly inconsistent with any suggestion that citizenship disposes of the issues arising under Article 8.

To equal effect was the earlier decision of this court N v SSHD [2006] EWCA Civ 414, in which Pill LJ acknowledged the relevance of the British citizenship of the child in question, which had not been considered by the fact-finding tribunal, and ordered the matter to be returned for further consideration. There would have been no point in so doing had that citizenship concluded the issue.

In those circumstances, I would reject the submission that the citizenship of the children disposes of the issue under Article 8.

I turn then to the more detailed challenges advanced in relation to the factual conclusions of the tribunal. Firstly, it was contended that it was irrational to conclude that the children could remain living in this country with their father in the light of his alcoholism and the fact that he suffered from HIV.

Mr Hawkin reminded us of the raw material upon which the conclusions as to the father’s medical condition were based, but in doing so he merely reinforced the fact that that evidence was indeed before the tribunal itself.

I can see that it might seem surprising to think that the children in London, who have not lived with their father, could go and live with a man receiving only disability pension, who drinks as much as he is recorded as drinking and suffers from HIV. It seems to me that there does seem a very slim basis upon which it could be said that the children could remain with their father. This criticism of the tribunal’s conclusion is fortified, to my mind, by the passage to which I have already drawn attention in which the tribunal speculate as to other children who are separated from their parents by going to boarding school. It seems to me fanciful to suggest that these children could have been sent away to boarding school and wholly unwise of the tribunal to speculate as to the situation of Muslim children.

In those circumstances this determination must, in my view, be regarded with a critical eye on the basis that to the decision was based on the belief that the children might stay in the United Kingdom with the father. But despite that criticism it is incumbent, as it seems to me, upon this court to look at the alternative with which, in my view, the tribunal properly grappled. They looked at the alternative possibility, namely that the children would go to live with their mother. The question for them, although they did not pose it in those terms, was the question posed by Sedley LJ in VW, namely whether it was reasonable to expect the children -- as British citizens with rights to remain here, who have never travelled to Tanzania, who have grown up educated in this country with friends and family in this country -- to go with their mother to Tanzania. The tribunal did consider that question and looked at it both in the light of its effect upon the father and mother and in relation to the children. So far as their father was concerned, they pointed out, in my view with justification, that he had formed his relationship with the appellant and conceived both children in the knowledge that here immigration status was precarious. In my view, the effect upon him of the children going to Tanzania had to be viewed in that context. If one wanted any authority for so obvious a proposition it can be found, for example, in Rodrigues Da Silva & Hoogkamer v The Netherlands Application Number 50435/99 at paragraph 39. So far as the effect upon the mother should they stay in the United Kingdom, again the same comment, namely that she had formed her relationship with their father and conceived the two children in the knowledge of her own immigration status was a relevant factor on the break up, from her point of view, of the family unit.

What was, in my view, all-important was the effect upon the children. As I have indicated, the tribunal did focus upon that and reached a conclusion in the paragraphs I have already cited that the children could reasonably be expected to follow their mother. As the tribunal put it, a decision that they should do so would be “a very valid decision”.

In those circumstances the view that the father could look after the children -- which, in my judgment, is susceptible to criticism as having no rational basis -- was not a view which leads to the conclusion that the whole decision cannot stand.

I turn then to the second ground of challenge relating to the facts. It was argued by Mr Hawkin that there was no rational basis to conclude that if the children went to Tanzania the father could visit them. The tribunal had rejected the view that his health would prevent him from doing so. They were entitled to do so. That was important because that was the focus of the submissions on his behalf and, in particular, upon the evidence of the mother. But right at the end, as I have pointed out, of the decision it was contended by means of a note passed from Mr S for a while up to the tribunal that he would not be able to afford to do so. The tribunal criticised by Mr Hawkin for failing to consider fully the financial restraints upon the possibility of any contact between the father and the children. As I have already recalled, he did have good contact with the children within this country and was commended for doing so. But, in my view, having regard to the way the case was put, it was open to the tribunal to conclude that he would be able to visit them and there was no permanent inhibition on his doing so.

Courts must always be careful in criticising factual findings and the terms in which they are concluded, because the court is not in a position to recreate the circumstances of the evidence and the submissions made during the course of the live hearing which led to the factual conclusions. It is plain to us that the stress and emphasis was placed upon the medical condition of their father and the inhibitions that that might cause in his travelling to visit the children. There was no emphasis upon his financial situation, of which the tribunal was well aware. There is no better example of that than in the evidence from the appellant as recorded in her statements, which made no reference to that feature.

In those circumstances it seems to us that the tribunal was entitled to deal with that shortly. Had I been concerned that in fact there was no possibility of his visiting the children, then I might have reached a different conclusion; but there was evidence of the amount he was able to save out of his allowance -- the £30 he paid to the children -- and in respect of the children’s care, and also evidence that he was living with his parents, and there was no evidence as to their means; they had sufficient to pay for a party for the children and to assist in support of their own son.

In those circumstances I reject the challenge based upon absence of evidence of a reasonable possibility of visiting.

The third challenge returned to the question of whether the tribunal had properly considered the effect on the father of the children going to live in Tanzania having regard to his health. Mr Hawkin drew our attention to a document which showed that he was suffering from stress and that he was very fragile and vulnerable, a situation which would be exacerbated and by fears that his children and partner may have to leave the United Kingdom (see the letter from the HIV support worker dated 18 February 2008). But, as I have already had occasion to mention, it is plain to me that the tribunal did consider the effect upon him in the context of his own choice to form a relationship and have children with someone whose status was so very precarious. That was a justifiable view. Reading the decision as a whole, and bearing in mind this was a second reconsideration, I have been unable to detect any erroneous approach in law to the facts. Hard though it will be for those young children to be uprooted should the decision be made for them to follow their mother, the tribunal was entitled to reach the conclusion that it was not disproportionate. In those circumstances, I would dismiss this appeal.

I have great sympathy for the children, but I agree that the appeal should be dismissed.

I also agree.