Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/50280/2021
IA/00756/2021 [UI-2021-001175]

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 14 March 2022
On the 03 May 2022

Before

UPPER TRIBUNAL JUDGE blum
DEUPTY Upper Tribunal JUDGE Keith

Between

ANH THI NGOC LUYEN
(anonymity direction NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the appellant: Ms M Mac, of MAC Solicitors
For the respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against the decision of Judge of the First-tier Tribunal Parkes (“the judge”) who, in a decision promulgated on 1 September 2021, dismissed the appellant’s human rights appeal against the decision of the Secretary of State for the Home Department (“the respondent” or “SSHD”) dated 5 November 2020 refusing the appellant’s human rights claim.

Background

2. The appellant is a national of Vietnam, born on 23 February 2002. She entered the United Kingdom on 29 April 2013 as an unaccompanied minor and claimed asylum. Her asylum claim was premised on a fear of loan sharks who she claimed would target her in Vietnam on account of her familial relationship with her parents.

3. The appellant’s asylum claim was refused on 8 August 2013, but she was granted Discretionary Leave (“DL”) pursuant to the respondent’s policy on Unaccompanied Asylum-seeking Children (“UASC”) until 7 February 2016. The appellant appealed the refusal of her asylum claim but a First-tier Tribunal judge rejected her account and the appeal was dismissed. The appellant was granted subsequent periods of DL valid until 5 October 2019.

4. On 4 October 2019 the appellant applied for further leave to remain. This was refused on 5 November 2020. In her decision the respondent noted the basis upon which the appellant had previously been granted leave to remain. It was noted that the appellant had turned 18 and was no longer considered to be an UASC. As such, the appellant no longer qualified for leave to remain under the UASC policy on DL. The respondent considered whether the appellant met the requirements for leave to remain in paragraph 276ADE(1) of the Immigration Rules, which seeks to give expression to Article 8 ECHR private life considerations. The provisions of paragraph 276ADE(1) material for this appeal are paragraph 276ADE(1)(iv), (v) and (vi). In order to succeed under paragraph 276ADE(1) an applicant must, at the date of their application, meet any of the following requirements:

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.

5. The respondent noted that, at the date of the applicant’s application, she had not resided in the UK for at least 7 years (she had lived in the UK for 6 years and 6 months).

6. The respondent noted that the appellant had not lived in the UK for half her life. The respondent then noted that the appellant had been born and brought up in Vietnam and would be ‘well rooted in the society and customs’ of Vietnam. It was noted that the appellant and her grandfather (lawfully resident in the UK) had visited Vietnam in 2017, that the appellant could speak the national language of Vietnam and was in good health. The respondent maintained that the appellant was resourceful and would be able to re-establish social, cultural and extended family ties in Vietnam. The respondent was not therefore satisfied that there were ‘very significant obstacles’ to the appellant’s re-integration in Vietnam. Nor was the respondent satisfied that there were exceptional circumstances outside the Immigration Rules that would render a refusal of the application a disproportionate interference with Article 8 ECHR.

7. The respondent refused the appellant’s human rights claim. The appellant appealed the respondent’s decision to the First-tier Tribunal pursuant to s.82 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’).

The decision of the First-tier Tribunal

8. The hearing before the First-tier Tribunal was conducted remotely. The judge had before him a bundle of documents prepared by the appellant’s solicitors running to 104 pages. He heard oral evidence from the appellant and her grandfather.

9. In the section of his decision headed ‘Discussion and Findings’ the judge recorded some of the evidence before him including, inter alia, that the appellant was due to commence an Architecture course at Oxford Brookes University in the autumn, that she would be living in accommodation in Oxford, and that her grandfather would be paying her fees. The judge found there was some confusion in the evidence presented as to whether the appellant was aware of the location of her younger brother in Vietnam. The judge noted that, despite the appellant maintaining her claimed fear of ill-treatment from lone sharks, there was no new evidence in support of this claimed fear. The judge was not satissfied that this reason for not wishing to return to Vietnam had been made out.

10. The judge noted that the appellant had a Vietnamese passport, that she spoke the language of the country, that she had some cultural familiarity with the country, and that, on the basis of her current plans, she was moving towards independence. There was no evidence in support of the appellant’s belief that her UK qualifications would not be accepted in Vietnam or that she would be unable to access higher education there. The judge concluded that the evidence did not disclose the existence of ‘very significant obstacles’ to the appellant’s return. The judge took account of the appellant’s preference to continue her education in the UK and her wish to remain close to her grandfather, but he concluded that the appellant’s removal would not constitute a disproportionate interference with her Article 8 ECHR rights. In reaching this conclusion the judge found that the evidence relating to whether the appellant had family in Vietnam was confused and that, in any event, family support was not required for the appellant to re-establish herself. The judge noted that the appellant’s grandfather could instead use the savings he had allocated to pay the appellant’s university fees to support her in Vietnam.

11. In conclusion the judge found that the appellant did not meet the requirements of the Immigration Rules in terms of length of residence, and that there would be no ‘very significant obstacles’ to her return to Vietnam. Nor was the judge satisfied that the consequences of the refusal of the human rights claim would amount to a disproportionate interference with Article 8 ECHR. The appeal was dismissed.

The challenge to the judge’s decision

12. The grounds of appeal were relatively narrow. No issue was raised with the judge’s treatment of the appellant’s relationship with her grandfather, or with the judge’s assessment of the private life the appellant had established in the UK. Nor was there any criticism of the judge’s assessment of the existence of ‘very significant obstacles to the appellant’s return to Vietnam.

13. The grounds noted that the appellant was a minor when her application was made on 4 October 2019. Had it been determined before 23 April 2020, the appellant would still have been a minor. The grounds contend that, but for the 13 month delay in making the decision, the appellant would have been a minor and would have qualified for leave to remain. It was because she turned 18 that she no longer qualified. This was a factor that the judge should have considered in his proportionality assessment. It was contended that the applicant had resided in the UK for 7 years by the date of the decision on 5 November 2020. It was claimed that the respondent refused to grant the applicant leave to remain because she was over the age of 18 at the date of the decision on the one hand, but on the other hand the appellant was refused leave to remain because she had not resided in the UK for 7 years at the date of her application. This ‘unfairness’ was said to be a factor the judge should have considered in his Article 8 ECHR assessment.

14. In granting permission to appeal Judge of the First-tier Tribunal Komorowski stated:

The case is arguably an allergist to OA [2019] UKUT 00065 (IAC) in that both here and there the Immigration Rules specified a period of residence which, if completed at the time of application, should normally have resulted in a grant of leave but which was only accrued after the date of application. It is arguable that a similar result to that in OA should have followed in this case. Assuming, as asserted, that this point was advanced before the judge (grounds, para. 4), the judge has arguably materially erred by not addressing it.

The grant of permission to appeal is unrestricted. However, I am very doubtful as to whether any omission to address the argument in para.1 was material in light inter alia of the comparatively modest delay in determining the application.

15. At the ‘error of law’ hearing the appellant provided a letter from Oxford Brookes University dated ‘03/04/2022’ (we note the hearing date was 15/03/2022, but we draw no adverse inference) and a copy of a Home Office policy “Concession to the family Immigration Rules for granting longer periods of leave and early indefinite leave to remain”, version 2, published on 20 December 2021. The letter from the University is post decision evidence and was not before the judge. It is not material in any event in determining whether the judge made a material error of law. The Home Office policy is also dated after the decision under appeal. There was no indication that the earlier version of this policy was in the same terms, or that it was brought to the attention of the judge. The grounds of appeal do not contend that the judge erred in failing to consider the policy. In any event, the criteria identified in the policy for all applications made under the concession requires, amongst other things, that an applicant has spent at least half of her life living continuously in the UK, as set out in paragraph 276ADE(1)(v). The appellant has not lived in the UK for at least half of her life, and she had not done so at the time of the judge’s decision. Ms Mac did not explain how the policy was relevant and she did not contend that the appellant failed within its terms. We say no more about the documents provided by the appellant at the ‘error of law’ hearing.

16. Ms Mac’s submissions were brief. She sought to argue that the judge failed to properly consider the relationship between the appellant and her grandfather. It was pointed out to her that this was not an argument advanced in the grounds of appeal, and that no application had been made to amend the grounds of appeal. Ms Mac accepted as much. Ms Mac did not make further submissions in relation to the decision of OA and Others (human rights; 'new matter'; s.120) Nigeria [2019] UKUT 00065 (IAC) (“OA”). We took Ms Mac to rely on the grounds of appeal and the grant of permission to appeal. We indicated that we did not need to hear from Mr Melvin and that the appeal would be dismissed.

Discussion

17. The grounds of appeal contend that the judge failed to take into account the fact that the appellant had achieved seven years residence in the UK whilst her application was pending and that, if a timeous decision had been made, the appellant could have still been a minor. There was said to be ‘unfairness’ in the respondent refusing the application because the appellant was over the age of 18 by the date of the decision, but also refusing to grant her further leave because she had not remained in the UK for a period of seven years by the date of the application, even though she had been here for seven years by the date of the decision. This ‘unfairness’ was said to have been a factor that the judge ought to have considered in his Article 8 ECHR proportionality assessment.

18. We do not accept that there has been any unfairness in the assessment of the appellant’s application, either by the respondent or by the judge. The appellant was granted periods of leave under the respondent’s DL policy. The terms of the policy state that, if an unaccompanied child who has been granted DL turns 18 when the application for further leave is pending they will be considered in the same way as an adult applying for further leave. They will no longer qualify for further leave as an unaccompanied child. This is what happened to the appellant. As she could no longer benefit from the DL policy the respondent considered her application under the Immigration Rules.

19. Paragraph 276ADE(1) is framed by reference to the date an application is made. At the date of the appellant’s application on 4 October 2019 she had resided in the UK for six years and six months. She could not therefore have met the requirements of paragraph 276ADE(1)(iv). The appellant turned 18 on 23 February 2020. By the time she had resided in the United Kingdom for seven years she would have been over the age of 18. She could never therefore have met the requirements of paragraph 276ADE(1)(iv). Even if there had been no delay by the respondent in making her decision the appellant was never able to meet the requirements of paragraph 276ADE(1)(iv).

20. Nor could the appellant have met the requirements of paragraph 276ADE(1)(v) because at the date of the application she had not lived in the UK for more than half her life and she was not aged between 18 and 25 years old. Nor has any issue been raised with the judge’s assessment under paragraph 276ADE(1))(vi). The judge carefully considered the appellant’s particular circumstances and the evidence before him relating to the situation she would face if removed to Vietnam. The judge considered all the relevant evidence and gave legally adequate reasons for concluding that the appellant would not face ‘very significant obstacles’ if removed to Vietnam.

21. The reference to OA by the judge granting permission to appeal is, with respect, misconceived. OA concerned applicants who had not yet achieved 10 years continuous lawful residence under paragraph 276B of the Immigration Rules by the time their applications for further leave was considered by the Home Office, but who had achieved 10 years continuous lawful residence by the time of their appeals. There was no dispute on the particular facts in OA that all the requirements for a grant of leave to remain under paragraph 276B had been met. That is materially different to the facts of the present appeal. Unlike the situation in OA, the appellant cannot, on any rational view, meet the requirements of paragraph 276ADE(1). OA consequently has no relevance to the present appeal.

22. It is unfortunate for this particular appellant that she had not entered the United Kingdom when she was slightly younger, and that she had not resided in the UK for seven years when her application for further leave to remain was made. This does not however render the decision to refuse her application ‘unfair’. Both the respondent and the judge applied the provisions of the Immigration Rules to the appellant’s circumstances and considered her circumstances outside of the Immigration Rules in accordance with Article 8 ECHR. The judge’s decision was one rationally open to him on the evidence before him and for the reasons given. The decision discloses no mistake on a point of law requiring it to be set aside.

Notice of Decision

The human rights appeal is dismissed

D.Blum 22 March 2022

Signed Date:

Upper Tribunal Judge Blum