Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20093/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 November 2016
On 30 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

LUONG [L]
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Beach of Counsel
For the Respondent: Mr Staunton a Home Office Presenting Officer

DECISION AND REASONS
Background
1. The Respondent refused the Appellant's application for leave to remain as a spouse on 14 May 2015. He is a citizen of Vietnam who was born on 8 February 1988. He was required to leave the United Kingdom. His spouse is [HV], a Vietnamese national, and his step-daughter is [VL] (born on 28 November 2012), a British citizen.
2. His appeal was dismissed by First-tier Tribunal Judge Wylie ("the Judge") following a hearing on 3 February 2016.
The grant of permission
3. Upper Tribunal Judge Perkins granted permission to appeal (3 November 2016). He said it is arguable that the Judge erred when stating it is reasonable for [VL] to be required to leave the United Kingdom and European Union to ensure Ms [V] could continue to enjoy married life, as such a requirement may not be lawful in itself or consistent with Home Office Policy. He said that all grounds could be argued.
Respondent's position
4. In the reply notice (17 November 2016) it is said that the Judge directed himself appropriately. Ms [V] only had limited leave to remain. [VL] at the date of that hearing was only 3 years old and had formed no ties outside the family. Adequate reasons were given for saying it would be reasonable for [VL] to leave.
Appellant's position
5. As there is no evidence [VL]'s father is unwilling or unable to care for her, and it is in her best interest to remain with Ms [V], it would be unreasonable to require her to leave the United Kingdom to enjoy their family life. Consideration should have been given to whether the Immigration (European Economic Area) Regulations 2006 are engaged regarding derived residence rights. I point out here that Ms Beach was unable to point me to any part of regulation 15A that may be of assistance to her. There was no finding as to whether the Appellant cared for [VL] while Ms [V] was at work. There were inadequate findings as to the nature of the relationship between [VL] and her father.
Judge's Determination
6. It is found in the determination that,
[20] "the appellant has a family life with Ms [V], and the child [VL]."
[23] "the appellant met Ms [V] and [VL] when he was in the United Kingdom unlawfully; Ms [V]'s own immigration status is precarious, as she only has limited leave to be in the United Kingdom."
[25] "[VL] is a British citizen? It is in her best interest to be in the care of her mother, Ms [V]."
[28] "Both the appellant and Ms [V] are Vietnam nationals. The appellant has lived there most of his life." Ms [V]'s "passport shows visits to Vietnam between 1 January 2014 and 6 February 2014; between 26 April 2014 and 13 March 2014; and 10 January 2015 to 5 February 2015. This suggests that she continues to have ties there."
[29] "Their soon to be born daughter will have Vietnamese nationality."
[34] "[VL] has not commenced formal education."
[36] "She would lose direct contact with her father."
Discussion
7. Ms Beach prayed in aid MA (Pakistan) [2016] EWCA Civ 705 and ZH (Tanzania) v SSHD [2011] UKSC 4.
8. I am not satisfied that the Judge adequately considered the intrinsic importance of citizenship to [VL] who had rights which she would not be able to exercise if she moved to Vietnam. There has been no adequate consideration to the fact that she would lose the advantages of growing up and being educated here, in her own culture (British) and language. There was no finding as to what language she spoke. There is no equally assessment of whether she is being denied her right to be brought up as a citizen of Vietnam as there is no evidence as to whether she is Vietnamese of not. Whilst her level of integration here is limited given her tender years, and nationality is not a "trump card", it is of particular importance in assessing her best interests. It is not enough to say that she might readily adapt to life in Vietnam, particularly as she had lived in Britain all her life.
9. Whilst Ms [V] and [VL] can visit the Appellant in Vietnam, and Ms [V] has been there on 3 occasions very recently and has ties there which can include the Appellant, the Judge has not considered how their family life will continue in a completely different form and the impact that may have on [VL].
10. Whilst the links to her biological father were tenuous given the limited contact, more detailed findings in relation to that would have helped to complete the picture of her life and links here.
11. I am satisfied that there was therefore a material error of law by the Judge as identified above [8-10].
12. I agreed with both representatives that, given the lack of many core findings required in the balancing exercise of what was reasonable for [VL], the matter would need to be remitted to the First-tier Tribunal other than Judge Wylie. For the avoidance of doubt, the findings referred to above [6] are preserved.
Decision:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision.
I remit the matter to the First-tier Tribunal for rehearing before a Judge other than Judge Wylie.

Signed:
Deputy Upper Tribunal Judge Saffer
30 November 2016