Upper Tribunal Appeal Number: AA/10400/2012
(Immigration and Asylum Chamber)
THE IMMIGRATI ON ACTS
Heard at George House, Edinburgh
On 13 June 2013
On 27 September 2013
THE PRESIDENT, THE HON MR JUSTICE BLAKE
UPPER TRIBUNAL JUDGE GLEESON
(NO ANONYMITY ORDER MADE)
For the Appellant: Mr A Devlin instructed by Latta & Co, solicitors
For the Respondent: Ms M O’Brien, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant is a Chinese citizen from Sichuan province. He appeals with permission against the determination of First-tier Tribunal Judge Scobbie, dismissing his appeal against the decision to set removal directions to China, and to refuse asylum, humanitarian protection or leave to remain on human rights grounds.
2. The appellant has a dependent son, born in July 2012, also a Chinese citizen. The appellant says the child’s mother has abandoned both of them and that he is his son’s sole carer. The parties were not and are not married.
3. Before the First-tier Tribunal, the appeal was based on the appellant’s conversion to Christianity, and his having a child outside the Chinese family planning policy, for which he risked being charged SUC to register the child. He argued that he had no family in China and would be unable to work, by reason of childcare difficulties.
4. The First-tier Tribunal applied the country guidance given by the Upper Tribunal in AX (family planning scheme) China CG  UKUT 97 (IAC) and held that the appellant would be able to find childcare and that he would be given time to pay the SUC. It considered that the appellant’s credibility was low overall and disbelieved his account of being a Christian convert.
5. Permission to appeal was granted based on the appellant’s assertion in his grounds of appeal that the First-tier Tribunal Judge had (1) failed to consider the best interests of the baby; (2) failed to provide clear reasons for his finding that the appellant would be given time to pay the SUC; and (3) failed to consider the consequences if the child’s hukou were not registered because of the appellant’s inability to pay the SUC.
6. He also relied on paragraphs 25.36 and 26.15 of the Country of Origin Report for China, indicating that there had been children illegally abducted and sold by local officials in an attempt to implement the population planning policies. There was no challenge to the finding that the appellant was not a Christian convert nor to the overall negative credibility finding.
7. The respondent filed a rule 24 notice, opposing the appeal and submitting that, despite the lack of reference to s.55 in the First-tier Tribunal determination, there was no material error of law in the First-tier Tribunal. The First-tier Tribunal judge had clearly considered that it would be in the best interests of the child to return to China and grow up there with his father, albeit with the use of childcare facilities. That was the basis on which the appeal came before the Upper Tribunal.
8. That was the basis on which the appeal came before the Upper Tribunal.
9. For the respondent, Ms O’Brien relied on AX (China). The child was less than a year old and a Chinese citizen. The child’s mother was from Hong Kong, where the birth regulations were less strictly applied. The father was from Sichuan province.
10. The appellant had no income in China while in the United Kingdom and since SUC is a multiple of income, she submitted that any SUC would be zero, or very low indeed. Ms O’Brien drew our attention to paragraphs 186-190 of AX (China) which deal with the position of foreign-born children. She referred the Tribunal to paragraph 204 of AX (China) and argued that the SUC would be based on average income in the region, with the appellant being given time to pay, if indeed it was imposed.
11. The First-tier Tribunal had not erred in applying existing country guidance or in finding that informal childcare would be available to the appellant on return. There was no real risk of harm either to the appellant or the child and the Upper Tribunal should find that there was no error of law in the First-tier Tribunal determination.
12. For the appellant, Mr Devlin argued that the welfare of the child had not been considered under s.55. The appellant was a man with no visible means of support and would not be in a position to access childcare on return. He accepted that there had been major credibility problems with the appellant’s core account that his parents had been killed in an accident and that his only brother now lived in Australia. The need to pay off the SUC, even if time to pay was available, and the burden of doing so while also paying for childcare, should be taken into account. Since the child had been born out of plan, there was a risk that the multiplier for SUC might be doubled.
13. Although statutory protection existed against abuses by officials, and seemed to be available (at least to husbands and fathers) it was a remedy after the event and would be insufficient to prevent ill treatment if there were a real risk of such treatment.
14. In relation to the best interests of the child, under s.55 Borders, Citizenship and Immigration Act 2009, Mr Devlin acknowledged that the child would be with its parent; that childcare is available in China, and indicated that he was not relying on the argument concerning risk of abduction.
15. We discussed the grounds with Mr Devlin at the hearing, referring him to the paragraphs of the determination and of the country guidance to which we refer below. Mr Devlin accepted that the appellant’s arguments could not succeed, in the light of those findings, and we announced at the hearing that, having regard to the country background evidence, the country guidance, the First-tier Tribunal determination and the grounds of appeal, we were not satisfied that there was any material error of law in the determination.
16. Dealing first with ground 1, that the First-tier Tribunal’s decision in relation to time being granted to pay SUC is irrational, we note that the judicial head note in AX (China) at point (7) held that:
(7) Where an unauthorised child is born, the family will encounter additional penalties. Workplace discipline for parents in employment is likely to include demotion or even loss of employment. In addition, a ‘social upbringing charge’ is payable (SUC), which is based on income, with a down payment of 50% and three years to pay the balance.
There is no irrationality in the First-tier Tribunal finding that the SUC was not payable immediately and in full on that basis; it would have been an error of law had the First-tier Tribunal not followed the country guidance, absent any cogent evidence to the contrary. We reject the suggestion that the multiplier would be increased, on these facts: the appellant would return to Sichuan, with the one child to which he is entitled, born abroad to a woman from Hong Kong. We consider that the SUC imposed if any would be very low and that the First-tier Tribunal was entitled to find that there was no real risk of destitution on that basis.
17. In relation to ground 2, the availability of childcare, both formal and informal, we note that at paragraph 173 of AX (China), the Upper Tribunal found that:
“ 173. Hundreds of thousands of unauthorised children are born every year. Family planning officials are required to register them, once the SUC has been paid: they have no incentive to refuse registration, since registration fees are a significant source of income for local family planning authorities, as are birth permits and SUC. There is a tension between that profitability, and the quota of births for the town, county and province, which is subject to regular national reporting and pressure on local officials to bring their province, district, or area back within the quota, or face workplace discipline and career consequences themselves. Education and medical treatment are available, but are no longer free. We remind ourselves that the vast majority of nursery schools in Shanghai are in private hands, and are fee paying.”
On the basis of that evidential finding, the First-tier Tribunal did not err in finding that the child would be registered on return and that there was childcare available in private nurseries which the appellant could use.
18. Turning to ground 3, the risk of this child being abducted and sold, as already stated this was not relied upon before us.
19. Finally, dealing with s.55, we note that although no express reference is made in the First-tier Tribunal determination to that provision, it is clear that he had the ‘best interests’ test in mind. The First-tier Tribunal Judge stated at paragraph 51 that he had acquainted himself with the case law, mentioning both AX (China) and ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4, which is a case on s.55. The child in this case is not yet two years old and has been living with his father since he was born. At paragraph 75, the judge found that there would be no breach of family life since the appellant’s son would return to China with him. The evidence before the First-tier Tribunal does not indicate any circumstances which would lead us to conclude that the child’s best interests do not lie in growing up in the country of his nationality with what is said to be his only effective parent, his mother having deserted them both.
20. For all of the above reasons, we find that the First-tier Tribunal determination contains no material error of law and we decline to reopen it.
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. We do not set aside the decision.
The First-tier Tribunal did not make an order pursuant to Rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. Nothing in the material now before us suggests that an anonymity direction is appropriate in this appeal.
Upper Tribunal Judge Gleeson