Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/15576/2019 (R)

THE IMMIGRATION ACTS

Remote Hearing by Skype for Business
Decision & Reasons Promulgated
On 23rd March 2021
On 06th April 2021

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

MR JAYU LIN
(Anonymity Direction Not Made)
Appellant
and

THE SECRETARy OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E Rutherford, instructed by Lin & Co Solicitors
For the Respondent: Mr M Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS (R)
1. The hearing before me on 23rd March 2021 took the form of a remote hearing using skype for business. Neither party objected. The appellant did not join the hearing remotely, but I was assured by Ms Rutherford that he is aware of the hearing and is happy to the appeal to be heard in his absence. I sat at the Birmingham Civil Justice Centre. I was addressed by the representatives in exactly the same way as I would have been if the parties had attended the hearing together. I was satisfied: that no party has been prejudiced; and that, insofar as there has been any restriction on a right or interest, it is justified as necessary and proportionate. I was satisfied that it is in the interests of justice and in accordance with the overriding objective to proceed with a remote hearing because of the present need to take precautions against the spread of Covid-19, and to avoid delay. I am satisfied that a remote hearing will ensure the matter is dealt with fairly and justly in a way that is proportionate to the importance of the case, the complexity of the issues that arise, and the anticipated costs and resources of the parties. At the end of the hearing I was satisfied that both parties had been able to participate fully in the proceedings.
The Background
2. The appellant is a national of China. He claims to have arrived in the UK on 10th May 1999. He made a claim for asylum on 14th May 1999 that was refused by the respondent on 9th March 2001. The appellant’s appeal against that decision was dismissed by the Tribunal in November 2002. In August 2010, the appellant made further submissions to the respondent. The further submissions were finally refused, following reconsideration, on 21st June 2017. On 13th June 2019, made further submissions claiming he has now been in the United Kingdom for more than 20 years and his removal would be in breach of his Article 8 rights. His claim was refused by the respondent for reasons set out in a decision dated 30th August 2019. The respondent rejected the appellant’s claim that he has lived continuously in the UK for at least 20 years because the appellant had failed to provide evidence to suggest that he was resident in the United Kingdom during 2000, 2002, 2003, 2006, 2007 and 2008. The respondent concluded the appellant does not therefore meet the requirements for leave to remain on the grounds of private life set out in paragraph 276ADE(1)(iii) of the immigration rules. The respondent also concluded that the appellant has failed to establish that there would be very significant obstacles to its integration into China, and his removal from the UK would not be in breach of his Article 8 rights.
3. The appellant’s appeal was dismissed by First-tier Tribunal Judge Hobson for reasons set out in a decision promulgated on 20th November 2019. The appellant attended the hearing of his appeal and gave evidence with the assistance of an interpreter.
4. The appellant’s evidence is set out at paragraphs [12] to [23] of the decision. At paragraph [13] of her decision Judge Hobson recorded:
“The appellant conceded that he has not provided evidence of his residing in the United Kingdom in the years 2000, 2002, 2003, 2006 and 2007. He said that he had been using his Halifax bank account continually since 2001 but that the bank had no records from before 2010. He had encountered similar difficulties with obtaining evidence from Barclays and Lloyds TSB, he said. He said that he had tried to obtain evidence of his employment from HMRC, but they had not responded.”
5. Judge Hobson’s findings and conclusions are set out at paragraphs [24] to [47] of the decision. At paragraph [28], she states that she was satisfied that the appellant resided in the UK between 1999 and 2002. She also accepted the appellant resided in the UK in 2004 and 2005 and that the appellant has lived in the UK since 2009. Those findings are not challenged by the respondent.
6. For reasons set out at paragraphs [29] and [30], Judge Hobson found the appellant has not established that he was living in the UK during 2008. For reasons set out at paragraphs [31] to [33], Judge Hobson was not satisfied the appellant has produced credible evidence of having lived in the United Kingdom during the years 2003 and 2006 to 2008.
7. Judge Hobson addressed the requirements to be met for leave to remain on the grounds of private life set out in paragraph 276ADE(1)(vi) of the immigration rules at paragraphs [36] to [40] of her decision. Having found that the appellant does not meet the requirements of the immigration rules and having had regard to the public interest considerations set out in s117B of the Nationality, Immigration and Asylum Act 2002, in her final analysis, she concluded that the interference with the appellant’s article 8 rights by the decision to refuse leave to remain, is proportionate.
The appeal before me
8. The appellant claims in the grounds of appeal that Judge Hobson erred in reaching her decision that the appellant has failed to produce credible evidence of having lived in the United Kingdom during the years 2003 and 2006 to 2008, for the reasons set out at paragraphs [32] and [33] of her decision. Permission to appeal was granted by First-tier Tribunal Judge Keane on 6th April 2020.
9. On 15th July 2020, Upper Tribunal Judge Allen issued directions expressing the provisional view that it would be appropriate to determine whether the making of the First-tier Tribunal’s decision involved the making of an error of law, and, if so, whether that decision should be set aside, without a hearing. He permitted the parties to submit reasons if they consider an oral hearing is necessary, but also made directions for the parties to file and serve written submissions. The appellant filed written submissions dated 21st October 2020. The appellant submitted that “... In the absence of an indication that the Upper Tribunal is minded to identify a material error of law the appellant requests that he be given the opportunity to develop his arguments on the issue of whether there is a material error of law, through oral argument.”. The appellant went on to make written submissions building upon the grounds of appeal. The respondent filed and served written submissions in reply dated 23rd October 2010. The appellant filed and served further written submissions dated 5th November 2020 responding to the written submissions made by the respondent.
10. Given the position adopted by the appellant in the written submissions dated 21st October 2020, the appeal was listed before me as a remote hearing. At the hearing before me, I informed the parties that I have the written submissions made by each of them. Ms Rutherford adopted the written submissions that she had settled and maintained Judge Hobson erred in reaching her decision that the appellant has failed to produce credible evidence of having lived in the United Kingdom during the years 2003 and 2006 to 2008. The key passages in the decision are paragraphs [32] to [34], and the appellant submits Judge Hobson speculated and made findings of fact that are not supported by the evidence and are inadequately reasoned. On behalf of the respondent, Mr Diwnycz adopted the written submissions filed and served on behalf of the respondent dated 23 October 2020.
The parties submissions
11. The appellant claims Judge Hobson placed undue reliance, at paragraph [32] of her decision, upon the fact that the appellant and his wife used illegal means to enter the UK. The appellant claims that in reaching her decision Judge Hobson failed to have regard to the cost of doing so and how the appellant could have funded any legal departure from, and return to the United Kingdom, in 2003, and again in 2008/2009. The appellant refers to the evidence set out in paragraphs [14] and [22] of the decision that the appellant had borrowed the equivalent of £20,000 to pay agents for his passage to the United Kingdom, and his wife’s journey had been paid for by his wife’s elder sister and other family members. The appellant claimed that he and his wife had almost paid the money back. He had also claimed, as set out in paragraph [16] of the decision, that he does not have a passport.
12. The appellant claims the conclusions reached at paragraph [32] are based upon speculation and are not supported by the evidence. The appellant submits there was no evidence before the First-tier Tribunal that the appellant did in fact leave the United Kingdom in 2003 or between 2006 and 2008, and at its highest, all that can be said is that there was no evidence that he was in the United Kingdom during that time. There was however evidence, accepted by the judge, that the appellant was present in the United Kingdom in 2002, and, that he has lived in the UK continuously since 2009.
13. The appellant submits that in reaching her decision, Judge Hobson failed to have regard to the difficulties and the substantial costs that would be associated with leaving and returning to the UK unlawfully, and how the appellant could have funded such travel, given his evidence of relatively low paid employment in the UK.
14. The appellant submits that although Judge Hobson identified three additional factors at paragraph [33] of her decision, the findings made by the judge did not consider all relevant evidence and are inadequately reasoned. Judge Hobson found that the appellant had an incentive to return to China to see his children, but an incentive to do something does not equate with the actual intention to do so or having done so. Furthermore, Judge Hobson concluded the appellant’s failure to make applications to the respondent to regularise his immigration status between 2001 and 2010 is inconsistent with his later behaviour. However in reaching that conclusion the appellant submits Judge Hobson failed to consider material matters. First, notwithstanding the lack of applications Judge Hobson accepted the appellant was present in the UK between 1999 and 2002 and in 2004 and 2005, and that he has lived continuously in the UK since 2009. Second, in the nine-year period between 2010 and 2019, the appellant had only made two sets of further submissions. The further submissions made in August 2010 were finally refused in June 2017. There was then a two-year gap before further submissions were made in June 2019 leading to the decision that was the subject of the appeal. The appellant submits Judge Hobson fails to explain how the appellant’s conduct prior to 2009 is inconsistent with his conduct thereafter. Third, in any event the appellant had explained why he had not made any application to the respondent between 2002 and 2010. At paragraph [18] of the decision, Judge Hobson recorded the appellant’s evidence that he had not made another application because his previous claim had been refused and the cost was prohibitive. The appellant submits Judge Hobson failed to consider the explanation provided. Finally, the appellant had provided a credible explanation as to why he had been unable to provide evidence of his employment between 2006 and 2008. He had been working illegally for an employer who was prepared to overlook the appellant’s immigration status and without the employment being registered with HMRC. Save for one inconsistency as to where the appellant had been working the appellant submits Judge Hobson does not point to any other inconsistency or explain why she considered the appellant’s evidence to be vague. The inconsistency identified relates to events some 13 years or so previously.
15. The respondent submits that in paragraphs [29] to [30] of her decision, Judge Hobson sets out her reasons for concluding that she was not satisfied that the appellant has established that he was living in the UK during 2008. The respondent submits the appellant’s grounds of appeal do not challenge that finding or the reasons provided. The respondent submits that at paragraph [32] of her decision the Judge considered the submissions made on behalf of the appellant that the appellant must have been in the UK in 2003 and between 2006 and 2008 as there is no record of the appellant’s departure from, or entry to the UK during those periods. The respondent submits it was open to the judge to reject the appellant’s claim for the reasons given. It is submitted the appellant had not advanced the argument that he could not have left the United Kingdom during those periods because of the costs of travel. The respondent submits the judge was entitled to find the appellant’s evidence regarding what he had been doing during the periods in issue, was vague and unconvincing, for the reasons given. It was open to the judge to have regard to the appellant’s connections to China and in particular, the presence of his three children, with whom he remains in contact. That would obviously present an incentive for the appellant to leave the UK and result in a break of his continuous presence in the UK. The respondent submits Judge Hobson was entitled to have regard to the absence of any steps taken by the appellant to regularise his immigration status after his claim for asylum been refused and his appeal dismissed. The appellant had made further submissions in August 2010, and as referred to in paragraph 6 of the respondent’s decision, between 2010 and 2017 there had been numerous letters sent to the respondent on the appellant’s behalf from Anglo Chinese Lawyers LLP. The respondent submits that at paragraph [33] of her decision Judge Hobson identifies supplementary factors that support her conclusion that the appellant has failed to establish that he has lived continuously in the UK for at least 20 years. The burden rested upon the appellant and the judge gave adequate reasons for the conclusions she reached.
16. In the written submissions made in reply dated 5th November 2020, the appellant submits the grounds of appeal do challenge the conclusion that the appellant has not shown that he was in the UK in 2008. The appellant accepts however that it was open to Judge Hobson to conclude that the ‘cheque evidence’ was not sufficient to establish the appellant’s account of having been present in the United Kingdom in 2008. The appellant maintains the decision reached by the judge is based upon speculation and the failure to have proper regard to the evidence before the Tribunal. The appellant submits Judge Hobson properly recorded the evidence of the appellant regarding the significant cost of travel and it was incumbent on the judge to consider that as a relevant factor. The appellant maintains that although there was no documentary evidence of the appellant’s residence in the UK during the periods in issue, the Judge was required to look at all the evidence before the Tribunal and to reach a decision based upon that evidence giving adequate reasons for the findings made. The appellant maintains judge Hobson failed to do so.
Discussion
17. I should say at the outset that I am quite satisfied that in the appellant’s grounds of appeal, the appellant challenges the overall conclusion reached by Judge Hobson that the appellant was not living in the United Kingdom during 2008. I accept, as Ms Rutherford submits, the appellant challenges the overall conclusion but accepts that it was open to Judge Hobson to conclude that the evidence relied upon by the appellant to support this claim to have been in the United Kingdom in 2008, did not support the claim being made for the reasons given at paragraph [29].
18. The only ground of appeal available to the appellant was that the respondent’s decision is unlawful under s6 of the Human Rights Act. Although the appellant’s ability to satisfy the immigration rules was not the question to be determined, it is capable of being a weighty factor when deciding whether the refusal is proportionate to the legitimate aim of enforcing immigration control. As set out by the Court of Appeal in TZ (Pakistan) [2018] EWCA Civ 1109, compliance with the immigration rules would usually mean that there is nothing on the Secretary of State’s side of the scales to show that the refusal of the claim could be justified. At paragraphs [32] to [34], the Senior President of Tribunals confirmed that where a person meets the rules, the human rights appeal must succeed because ‘considerable weight’ must be given to the respondent’s policy as set out in the rules.
19. The focus of the appellant’s claim was that he has lived continuously in the UK for at least 20 years and thus meets the requirements for leave to remain on the grounds of private life as set out in paragraph 276ADE(1)(iii) of the immigration rules. That claim was considered by Judge Hobson at paragraphs [26] to [35] of her decision.
20. At paragraph [28] of her decision, Judge Hobson explains why she found the appellant was in the UK between 1999 and 2002, between 2004 and 2005, and why she found the appellant has lived continuously in the UK since 2009. She then went on to address whether the appellant has established that he was in the UK in 2003, and between 2006 and 2008.
21. At paragraph [32] of her decision Judge Hobson noted the submission made on behalf of the appellant that the appellant must have been living in the United Kingdom during those years because there is no evidence of his having entered or left the country. She said:
“32. … I did not find that submission persuasive in this particular case: the appellant, in his own evidence, told me that during his time in the United Kingdom his wife has joined him from China through an illegal route. He plainly knows of and has access to means by which people may enter (and leave) United Kingdom without detection, and so the fact that there is no official record of his having left United Kingdom is irrelevant, in my judgement.
33. There are other factors within the evidence which lead me to conclude that it is likely the appellant was not living in the United Kingdom during, in particular, the three-year period between 2006 and 2008:
a. The appellant had children in China whom he plainly cares about - he is paying for his daughter’s university fees. The fact that they remained in China gave him an incentive to return there to see them.
b. After the refusal of his asylum claim 2001, the appellant made no attempt to regularise his immigration status until 2010, since when he has made repeated applications. If he was continuously resident in the United Kingdom during all of those nine intervening years, it would have been consistent with his later conduct to have made some contact with the respondent in order to obtain leave to remain.
c. The appellant was vague in his oral evidence as to exactly what he was doing during the ‘missing’ period. He said in evidence that he was living and working in Abergavenny but cannot provide evidence of his employment because his employers were not paying tax. That explanation is inconsistent with his own witness statement: he said in his statement that he had worked in Retford during that period: he also said that he had been trying to obtain the evidence of his employment from HMRC but had not received a reply. I accepted, because it was in the bundle, the appellant has written to HMRC. However, if, as he says, he was working illegally in without paying tax, there is unlikely to be any record of his employment with HMRC in any event. I found the appellant’s evidence to be vague and inconsistent, and for that reason I did not find it credible when he said that he was living and working in the United Kingdom between 2006 and 2008.”
22. I reject the claim that Judge Hobson placed undue reliance, at paragraph [32] of her decision, upon the fact that the appellant and his wife used illegal means to enter the UK. The appellant accepts there was no evidence before the First-tier Tribunal that the appellant was in the UK in 2003 or between 2006 and 2008. At paragraph [32], Judge Hobson addressed the submission made on behalf of the appellant that he must have been in the United Kingdom during those years because there is no record of his having entered or left the country. In her assessment of the claim advanced by the appellant Judge Hobson was entitled to consider the likelihood of something having happened, based on evidence and or properly drawn inferences. The appellant and his wife had entered the UK unlawfully and it was undoubtedly open to Judge Hobson to consider that the appellant knows of, and has access to means by which people may enter and leave the United Kingdom without detection, to be relevant factor. As the respondent submits, it was not said by the appellant that he could not have left the UK during the relevant periods because of a lack of funds. In any event, Judge Hobson reached her decision having recorded the appellant’s evidence, at paragraph [16], that the appellant does not have a passport and so has not left the United Kingdom since May 1999. She had also recorded his evidence that he had come from a poor family in rural China and that they had borrowed the equivalent of £20,000 to pay to agents for his passage to the United Kingdom. The appellant and his wife had previously been able to fund their journey’s to the United Kingdom from whatever source, and it was open to Judge Hobson to conclude, at [32], the appellant “..knows of and has access to means (my emphasis)..” by which people may enter and leave the United Kingdom. A Judge is not required to recite in a decision all the evidence that was before the Tribunal and engage in a line-by-line analysis of the evidence. It would be entirely impractical to do so.
23. I also reject the appellant’s criticisms of the adequacy of the reasons given by Judge Hobson in paragraph [33] of her decision. Although I accept that an incentive to do something does not equate with the actual intention to do so, or having done so, in her analysis of the evidence taken together, it was properly open to Judge Hobson to consider any incentive the appellant might have for leaving the UK. She was also entitled to have regard to the conduct of the appellant insofar as his immigration status is concerned. She noted that after the refusal of his asylum claim in 2001 and the dismissal of his appeal in November 2002, the appellant had made no attempt to regularise his immigration status until 2010, since when he has made repeated applications. Although Ms Rutherford is correct to point out that since 2010 the appellant has only made 2 applications (that is, 2 sets of further submissions), that would be to ignore the fact that between 2010 and 2017, almost annually, letters had been sent by the appellant’s representatives, Anglo Chinese Lawyers LLP to the respondent. That was in stark contrast to the lack of any contact with the respondent between 2003 and 2010 and is not explained by the fact that a previous application had failed, and the costs were prohibitive. In paragraph [33(c)] of her decision, Judge Hobson referred to the inconsistency in the evidence of the appellant. She noted that he said in evidence that he was living and working in Abergavenny but was unable to provide evidence of his employment because his employers were not paying tax. That explanation was inconsistent with the evidence set out in his witness statement, referred to at [15], in which he had given the names of two restaurants in Retford where he said he had worked in 2002-2003 and 2005-8 respectively.
24. The appellant accepts there was no evidence before the First-tier Tribunal, save for the claims made by the appellant himself, that appellant was in the UK in 2003 or between 2006 and 2008. It was for the appellant to establish, on balance, that he has lived continuously in the UK for at least 20 years. The assessment of such a claim is always a highly fact sensitive task. Judge Hobson was required to consider the evidence as a whole and to consider a number of factors, including whether the account given by the appellant is of sufficient detail, whether the account is internally consistent and consistent with any other relevant evidence.
25. In my judgement, at paragraphs [27] to [34] of the decision read as a whole, Judge Hobson reached conclusions that were properly open to her and they were supported by valid reasons. I am quite satisfied that any failure to refer expressly to the evidence before the Tribunal in those paragraphs is immaterial. The Judge considered the written and oral evidence of the appellant. She had the opportunity of hearing the evidence of the appellant and of having his evidence tested in cross-examination before her. It was in my judgment undoubtedly open to her to find the appellant’s evidence to be vague and inconsistent, for the reasons set out in paragraph [33(c)]. She did so having previously found, at paragraph [29], that the evidence relied upon by the appellant in support of his claim to have resided in the United Kingdom in 2008 was unreliable. The requirement to give adequate reasons means no more nor less than that. It is not a counsel of perfection. Still less should it provide an opportunity to undertake a qualitative assessment of the reasons to see if they are wanting, perhaps even surprising, on their merits. The purpose of the duty to give reasons, is in part, to enable the parties to know why the Judge reached the decision and also to enable an appellate court or tribunal to see what the reasons for the decision are, so that they can be examined in case there has been an error of approach. In my judgment when the decision is read as a whole, the reasons given by Judge Hobson are perfectly adequate and explain why she reached the decision she did.
26. It is necessary to guard against the temptation to characterise as errors of law what are in truth no more than disagreements about the weight to be given to different factors. The obligation on a Tribunal is to give reasons in sufficient detail to show the principles on which the Tribunal has acted, and the reasons need not be elaborate, and do not need to address every argument or every factor which weighed in the decision. It is sufficient that the critical reasons to the decision, are recorded. In my judgement, the complaints made by the appellant that the Judge failed to consider the evidence that was before the Tribunal and reached a decision based upon speculation is unfounded. Judge Hobson properly identified the issues and gave a proper and adequate explanation for her conclusions. The findings made by the judge were findings that were properly open to the judge on the evidence and cannot be said to be perverse, irrational or findings that were not supported by the evidence.
27. It follows that in my judgement, the decision of First-tier Tribunal Judge Hobson is not vitiated by a mater error of law and the appeal is dismissed.

Notice of Decision

28. The appeal is dismissed.

Signed V. Mandalia Date; 24th March 2021
Upper Tribunal Judge Mandalia