Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/00363/2016
PA/07207/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 October 2016
On 14 October 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

K N
L N
(ANONYMITY ORDER MADE)
Appellants
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Jaisri, instructed by Victory @Law Solicitors
For the Respondent: Mr I Jarvis, Presenting Officer

DECISION AND REASONS
1. The appellants appeal with permission against the decision of First-tier Tribunal Judge N J Bennett promulgated on 30 March 2016 in which he dismissed their appeals against the decisions made by the respondent on 6 January 2015 and 22 October 2015 in respect of the first appellant (PA/07207/2016), and on 5 November in respect of the second appellant (AA/00363/2016). He found no valid appeal was extant in respect of the earlier decision about the first appellant (AA/01146/2015).
2. The appellants are brother and sister, born on 6 July 1997 and 2 October 1995 respectively. Both are citizens of Vietnam who arrived in the United Kingdom on 21 May 2010. Although refused asylum, they were granted Discretionary Leave to remain as unaccompanied minors. Applications made to extend those periods of leave were refused which resulted in these appeals.
3. The appellants were placed in foster care and since December 2011 with Binh Thi Tran and her husband, Huu Le, who have two children of their own. Although the first appellant continues to live with the foster parents, the second appellant now lives with her boyfriend in his home, but visits the foster parents at weekends.
4. The appellants' case is that that they have established strong bonds with their foster parents, this amounting to family life for the first appellant, and that he was still part of that family. It is the second appellant's case that she had established a family life with her boyfriend, there being significant obstacles to him going to Vietnam, and that would be artificial to require her to return to Vietnam to apply for entry clearance.
5. In both appeals, it is the appellants' case that they have made out the case that there would be very significant obstacles to their reintegration into life in Vietnam; and, that to remove them there would be in breach of their protected article 8 rights.
6. There is a long history to the appeals which have been adjourned on several occasions. They finally came before the First-tier Tribunal for substantive consideration on 30 June 2016.
7. The judge was, as a preliminary issue, concerned that as the appellants' applications for leave to remain had been made when they had no extant leave, that there was no immigration decision, there being no leave to vary. The issues in respect of the Second Appellant were resolved in the decision at [7].
8. The judge found that:
(i) There were significant obstacles to the appellants settling into life in Vietnam [52], but that these were not very significant [55], and thus the appeals under the Immigration Rules failed;
(ii) The appellants have very strong relationships with their foster parents which are important parts of their private lives [56] but that these did not amount to family life for the purposes of article 8, albeit that the relationship was a very strong one;
(iii) The relationship between the second appellant and her boyfriend was, subsisting, but had not yet developed into family life [57];
(iv) The appellants had established private lives here extending beyond relationships with the foster family and the boyfriend [58]; that they would prefer to remain here; that it would not be unreasonable to expect the appellant's boyfriend to relocate to Vietnam, or for her to seek entry clearance to return to the United Kingdom [63], [64];
(v) The removal of the appellants amounted to a proportionate interference with their rights to family life [65], having had regard to section 117B of the 2002 Act,
9. The appellants sought permission to appeal on the grounds that the judge erred:
(i) In not considering the effect of the appellants' removal on their foster siblings, and thus failed to consider "section 55" [5];
(ii) In concluding that there were not very significant obstacles to the appellants' reintegration into Vietnam, although he had found at [52] that there are significant obstacles to settling into life in Vietnam, and at [53] that there were strong bonds to the foster parents [6];
(iii) In concluding that there could be no family life between a foster parent and a foster child, the judge making an artificial distinction between the relationships between natural or adoptive parents and foster parents [7];
(iv) In concluding in the balancing exercise that the article 8 rights of the appellants were outweighed, the judge's conclusion that the second appellant and her boyfriend entered into a relationship when the immigration status was precarious being flawed [8]
(v) In concluding that the second appellant had the option to apply for entry clearance as her circumstances could be distinguished from that in Hayat [2012] EWCA Civ 1054.
10. On 7 September 2016, First-tier Tribunal Judge Saffer granted permission to appeal
11. At the hearing before me, I heard submissions from both representatives. Both were in agreement that although the grounds did not raise the issue of whether the judge had erred in concluding that the first appellant had no valid appeal in respect of the first decision, that I should consider that also. The parties were agreed that the judge had erred on this issue. I reserved my decision.
Did the decision of the First-tier Tribunal involve the making of an error of law?
Ground 1
12. As Mr Jarvis submitted, there is no indication that it was part of the appellants' case that the respondent had erred in her exercise of her section 55 duties in not having regard to the appellants' foster siblings.
13. It is not disputed that the foster parents have children of their own. The older boy is under 10; the younger is, I was told, about 18 months' old. While the witness statements of the foster parents make mention of the fact that the older boy treats the first appellant like and older brother, and that they have lived as part of the same family, little is said of the effect of separation. It does not appear from the summary of the evidence at [10] - [47] that this issue was raised in any material way, nor does it appear to have featured in Mr Jaisri's submissions a summarised at [49].
14. It is evident that a significant number of other issues relating to the private lives of the appellants were raised, and that a submission was made that they both, in different ways, have a family life in the United Kingdom. These were dealt with in detail by the judge at [52] onwards and flow from the evidence adduced.
15. It is not arguable that the judge erred in failing to have regard to an issue which was not properly put to him. There is no indication that section 55 duties, or the best interests of the foster siblings were raised. It is for a party, with the assistance of legal representatives, to put forward his case, and the judge cannot be faulted for not reaching conclusions on issues not put to him. I am therefore not satisfied that ground 1 is made out.
Ground 2
16. There is no merit in this ground. As the judge rightly observed at [51], the word "very" in the phrase "very significant obstacles" is not redundant. It was open to the judge to conclude that although there would be obstacles, they were not such as to reach the very high threshold required of the Immigration Rules. No effective challenge is made to the findings he made at [53] as to the assistance they would have, and as to the skills they had acquired [54] That they have strong bonds to their foster parents does not amount to obstacles to integration, not least as they are young adults, as the judge noted [53]. In reality, this ground is a disagreement with a properly reasoned and sustainable conclusion.
Ground 3
17. This ground in part misstates the judge's findings. He did not direct himself that there could be no family life between a foster parent and a foster child, but very properly noted that there are differences between such relationships [56] and natural or adoptive parent - child relationships. The judge also very properly noted, in a nuanced and careful decision, that it is the strength and nature of the relationship which is important, not the label attached thereto. Although it is averred in the grounds that the judge should have looked at the quality of the relationships, but did not, that is precisely what he did do.
Ground 4
18. It is not arguable that the judge erred in concluding that the appellants' status was precarious. An individual's status can be precarious even if he or she has leave; that is clear from Rhuppiah v SSHD [2016] EWCA Civ 803. Here, the appellants' leave was expressly granted due to them being minors; there could have been no expectation that further leave would be granted after they became adults. The judge was in the circumstances, manifestly entitled to conclude that this was relevant [66], having directed himself properly in accordance with the relevant case law.
19. I do not consider that, as Mr Jaisri submitted, the judge erred in concluding that family life had not been established between the second appellant and her boyfriend. Not all romantic relationships constitute family life, and the judge gave detailed and eminently sustainable reasons at [57] for concluding that it had not yet developed.
20. I am not satisfied, accordingly, that the judge's approach to the balancing exercise was flawed.
Ground 5
21. I find no merit in this ground. The requirement for entry clearance does, in this case, have a sensible purpose; the couple are not yet engaged, nor had they cohabited for two years; nor, indeed, is there sufficient evidence to show that the financial requirements supported by the specified documents of the Immigration Rules were met. While the second appellant did have leave at the time her relationship commenced, that is not sufficient to distinguish it from Hayat or demonstrate that the judge erred in concluding that this route was open to the second appellant,
22. I turn finally to the issue of the validity of the first appellant's appeal.
The decisions made in respect of the first appellant
23. The first appellant's Discretionary Leave to Remain had expired on 8 September 2013, and he applied for further leave to remain on 21 November 2013. On 6 January 2015, the respondent refused to grant further leave, and also made a decision to remove him pursuant to 47 of the Immigration and Nationality Act 2006 to remove him. He appealed against that decision, giving rise to the appeal number AA/01146/2015.
24. On 22 October 2015, the respondent issued a further letter which records that the decision of 6 January 2015 was incorrect, and that it had been agreed that the respondent would reconsider the decision. This appears to flow from a pre-action protocol letter sent to the respondent.
25. The refusal letter sets out why the respondent did not consider that the appellant is a refugee, was not entitled to Humanitarian Protection and that his removal would not be in breach of article 8 to remove him to Vietnam. The letter does, however, record that the first appellant has a right of appeal against the decision under section 82 of the 2002 Act (as amended). No appeal against that decision was made until 6 July 2016, time being extended by the judge.
26. The judge noted in his decision extending time, that section 47 of the 2006 Act had been repealed by the Immigration Act 2014 with effect from 20 October 2014, that is, after the first decision had been issued, but it is unclear if he had regard to the transitional provisions set out in articles 9-ll of the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014. Having had regard to those provisions, I am satisfied that section 47 of the 2006 Act did remain in place in respect of this decision, and that accordingly there was potentially a valid appeal against the decision of 6 January 2015.
27. Given that there is, however, no appeal against the decision of the judge to find no valid appeal against the first decision (that appeal being dealt with in the appeal number AA/01146/2015) there is no appeal in which grounds could be varied. In any event, the decision on the merits considred in PA/07207/2016) is sustainable, any error is not material.
Conclusions
28. For the reasons set out above, I am not satisfied that any of the grounds are made out. The decision is well-structured, properly reasoned and sufficiently detailed.
Notice of Decision
1. The decision of the First-tier Tribunal in AA/00363/2016 did not involve the making of an error of law and I uphold it.
2. The decision of the First-tier Tribunal in PA/07207/2016 did not involve the making of an error of law and I uphold it.
3. There is no valid appeal against the decision in AA/01146/2015.
4. I maintain the anonymity order made in respect of the appellants by the First-tier Tribual.

Signed Date: 13 October 2016

Upper Tribunal Judge Rintoul