JW (China) & Anor v Secretary of State for the Home Department

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:

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 agreed, had said this in the course of paragraph 31:

This then leads to consideration of the first ground advanced and whether the deputy Upper Tribunal judge had been justified in interfering. The principles in this regard are well known and the authorities do not need further citation here. It is established that mere disagreement with a conclusion on the facts cannot suffice, especially where the decision will have been that of a specialist judge. But failure to give adequate reasons is capable of amounting to an error of law entitling a superior court to interfere. In my view, the deputy Upper Tribunal judge was plainly justified in setting aside the decision of the First-tier Tribunal judge on the basis of insufficient reasoning.

The first point is that, as the deputy Upper Tribunal judge noted, the First-tier Tribunal judge had failed sufficiently in this context to have regard to her own prior findings of fact reached in the context of dealing with the asylum and Article 3 claims, and, in consequence, to reason from them. Having made such findings, it was necessary for the First-tier Tribunal judge to analyse why nevertheless the "degree of hardship" (in her phrase) involved was such as to make removal disproportionate under Article 8. Such an analysis is required by a number of authorities, for example VW (Uganda) as cited above. It is also consistent with what was said in R v Special Adjudicator ex parte Ullah [2004] 2 AC 323, in particular the observations of Lord Bingham.

But of course, as Mr Mahmood in turn emphasised, those observations must now be read in the context of a case such as the present in the light of section 55 of the Borders, Citizenship and Immigration Act 2009 and the decision of the Supreme Court in ZH (Tanzania) [2011] 2 AC 166.

In my view for this purpose, the First-tier Tribunal judge had failed properly to analyse the relevant factors in assessing the best interests of the child. Her failure to do so thereby impacted on her assessment of proportionality and in that regard there was insufficient reasoning. Indeed, it is striking that the First-tier Tribunal judge at paragraph 30 of her determination gives no indication whatsoever as to what weight, if any, she had given to the potentially important factor of the proper maintenance of immigration control in pursuit of the economic well-being of the country. Indeed, her approach came close to saying that because in economic and social terms the child faced a better life in the United Kingdom rather than in China, any removal would thereby be disproportionate.

But the approach required in this context is altogether more wide ranging and more exacting than that. What was required was an overall assessment of the best interests of the child, which was the starting point. This is made clear by Lady Hale in ZH (Tanzania). In particular, she said this at paragraphs 29 and 30 of her judgment:

But a number of factors identified by Lady Hale as potentially relevant, and certainly potentially relevant in the present case, were simply not analysed by the First-tier Tribunal judge. By way of example, the very young age of the second appellant, he having no family life at all in the United Kingdom independent of the clear need and requirement to be with his own mother; he had no established ties of any kind at all with the United Kingdom or with anyone in the United Kingdom; there was no suggestion whatsoever of any particular medical needs; there was no suggestion that he had a father or any other close family member present in the United Kingdom with whom he had potential or actual ties. There are other points as well. But such matters simply were not properly addressed in the First-tier Tribunal judge's evaluation.

Mr Mahmood submitted that the right approach to be applied in this case was that the best interests of the child living in the United Kingdom as opposed to China needed to be considered first. That misstates the correct approach as laid down in ZH itself: namely and simply that the best interests of the child be considered first. To limit it in the way that Mr Mahmood seeks to do would only tend to operate to downplay the need for an overall assessment of the position relating to the best interests of the child.

In my view, the correct approach is very well summarised in the Upper Tribunal decision of MK (Best interests of child) [2011] UKUT 00475 (IAC), where this was said at paragraphs 23 and 24 of the determination:

Nor did I find Mr Mahmood's generalised appeal to a wider comparison of living conditions in the United Kingdom as compared to China helpful in the context of this case. Of course the impact of a removal of the second appellant from the United Kingdom to China did need close consideration. But, as I have already indicated, the First-tier Tribunal judge focussed almost entirely on some of those aspects without making an overall and balanced analysis of the various other factors relating to the best interests of the child. That failure to give reasons in this regard then impacted upon the proportionality assessment. The concerns with regard to that are precisely those of the kind indicated in MK.

It is also to be borne in mind that Lady Hale had, at paragraph 26 of ZH, said this:

In short, therefore, the conclusions by the deputy Upper Tribunal judge as to the inadequacy of reasons given by the First-tier Tribunal judge was, in my opinion, justified. There was a failure sufficiently to articulate reasons and to give an overall assessment of the best interest factors, and there was a failure sufficiently to articulate the reasons for the conclusion on proportionality. Indeed, such reasoning as there was was suggestive of the notion that the best interests of the child, to the extent they had been assessed by the First-tier Tribunal judge, were being regarded as the, and not as they should have been a, primary consideration. Ground 1, therefore, fails.

Turning to ground 2, I think I can take that relatively shortly. Although Sir Richard Buxton in granting leave expressed the preliminary view that the deputy Upper Tribunal judge had made errors in his approach, I cannot see them. When one analyses his determination, he did not make the error of failing to consider the best interests of the child first, in the sense of having regard to it as being a paramount consideration. On the contrary, he both expressed his regard to ZH and set out reference to it.

Nor did the deputy Upper Tribunal judge make the mistake of conflating the issue of proportionality with the prior issue of the consideration of the best interests of the child. On the contrary, the deputy Upper Tribunal judge, having referred not only to ZH but also the decision in MK (India) reminded himself that factors relating to the public interest in the maintenance of effective immigration control must not form part of the best interests of the child consideration.

In remaking the decision, the deputy Upper Tribunal judge set out his overall evaluation of the best interests of the second appellant over 11 paragraphs of his determination. He noted that there were no medical issues. He noted that there was, and had been, no contact with the father. He noted that the child did not have any connection with anyone else in this country or any other ties with this country. He found, of course and inevitably, that it was in the child's best interests to remain with his mother. He in terms (and for expressed reasons) rejected the expert evidence adduced on behalf of the appellants before him that predicted that a "life of stigma and poverty" are facing the appellants if they returned to China. He had due regard to the imposition of a social upbringing charge, but he confirmed what had already been decided by the First-tier Tribunal: that the mother was registered with a hukou and that enforcement of the social upbringing charge would not, under Chinese law, be enforced so as to remove basic conditions of living, such as a home, food and schooling for the children. It was found that the child, even if categorised as unauthorised, would nevertheless be registered and that education and medical treatment would remain available, even if, as was noted, it might not be free. Furthermore, it was found that the appellants would be able to readapt if returned to China.

All these were relevant findings, properly open to the deputy Upper Tribunal judge on the evidence on his remaking the decision. He duly and properly overall assessed the best interests of the child. Furthermore, in doing so, he did not in any way depart from the preserved findings of the First-tier Tribunal judge. I would reject Mr Mahmood's late assertions to the contrary.

Having made all those findings, and having engaged in an appropriate overall analysis, the deputy Upper Tribunal judge concluded in this way on proportionality:

In my view, there simply is no identifiable error in the deputy Upper Tribunal judge's approach or conclusion. Indeed, in the light of the facts as found, it might well be said that any different overall conclusion would have been very surprising.

For my part, I would therefore dismiss this appeal.

LORD JUSTICE PITCHFORD: I agree, and contribute only because this appears to be the first time that the precise issue at stake here has been before the court since the decision in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166.

There appears to be no significant difference between the appellant and the Secretary of State upon the questions whether relevant findings of fact were made by the First-tier Tribunal and factors relevant to the assessment of proportionality were correctly identified. The issue between the parties lies in the proper approach to the assessment of the proportionality of an interference with the appellant's Article 8 right to respect for her family and private life by the decision to remove her from the United Kingdom. Such an assessment is commonly referred to as a balancing exercise.

However, as Lady Hale explained in ZH (Tanzania), this is not merely an exercise of weighing in the balance one list of factors against another. This is because some factors have intrinsically more importance, or weight, than others. The best interests of children affected by the decision is a primary consideration which must be considered first, although they can be "outweighed by the cumulative effect of other circumstances" (see paragraph 33).

The assessment of the best interests of the child will involve a consideration of several different factors, many of which were identified at paragraphs 29 and 30 of Lady Hale's judgment. It seems to me inevitable that, when the Tribunal comes to make the final assessment of proportionality, it will be appropriate to afford different weight to different factors depending upon the effect of removal of the individual upon them. For example, in the case of an infant child who has acquired no family or private life in the United Kingdom independent of the mother, his or her best interest lies overwhelmingly in the preservation of the caring and nurturing relationship between mother and child. If there is no question of mother and child being separated, even if mother is required to return to her country of origin, that seems to me to be a relevant and important consideration when it comes to an assessment of the proportionality of the decision to remove.

In carrying out the assessment of proportionality in the present case, it is not possible to discern that the First-tier Tribunal engaged in any analysis of the weight to be afforded to the different factors which comprised the child's best interests through an examination of the effect of mother's removal upon them. There was, in effect, a listing of factors and a concluding statement as to the outcome. In my view, in common with my Lord, the Upper Tribunal was correct to find that an error of law had been made by the First-tier Tribunal because there was an inadequate expression of the reasons for making the concluding statement.

I too would commend the approach of the Upper Tribunal in MK (Best interests of child) (India) 2011 UKUT 00475 (IAC), in which the earlier decision of the President, Blake J, sitting with Senior Immigration Judge Jarvis in E-A (Article 8 - best interests of child) (Nigeria) [2011] UKUT 00315 (IAC) was cited. I agree also that in reaching its contrary conclusion in the present case, the Upper Tribunal palpably did carry out the appropriate analysis, considering at each stage the weight to be given to each relevant factor.

LADY JUSTICE ARDEN: I agree with both judgments. I too endorse generally the overall approach in MK (India), although on its facts it was a very different case since the children in question were to enjoy in India conditions similar to those which they had enjoyed in the United Kingdom. That is not the case here. The approach in MK (India) is instructive, particularly to those who are not familiar with this field.

MK (India) also demonstrates why it is important to conduct a thorough and separate assessment of the child's best interests. As the Tribunal points out in MK (India) at paragraph 24, if all the factors weighed in the assessment of the best interests of the child point overwhelmingly in favour of the child and/or the relevant parent remaining in the United Kingdom, that is very likely to mean that only very strong countervailing factors can outweigh it (see paragraph 24).

I too, therefore, agree that the appeal should be dismissed.