Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/32786/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 February 2017
On 7 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

DO TUYET ANH THI
(ANONYMITY DIRECTION NOT made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant: Mr A. Jafar, instructed by Russell Wise Solicitors
For the Respondent: Mr J. Parkinson, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Vietnam born on 2 April 1964 who entered the UK illegally in September 2009 and remained thereafter without lawful leave. She is married to a Vietnamese citizen who had discretionary leave to remain in the UK until 29 July 2016 and who now has an application for further leave pending. Her daughter (born on 16 August 1989) and son (born on 12 January 1998) have been in the UK since 2005. Her daughter is a British citizen and her son has indefinite leave to remain in the UK.
2. On 2 April 2015 the appellant applied for leave to remain in the UK on the basis of her private and family life. On 25 September 2015 her application was refused. The reason given for the refusal was that she was unable to meet the requirements of either Appendix FM or paragraph 276ADE(1) of the Immigration Rules and there were no exceptional circumstances to warrant a grant of leave under Article of the ECHR outside the Rules.
3. The appellant appealed to the First-tier Tribunal (“FtT”) where her appeal was heard by FtT Judge Moxon. The respondent was not represented at the hearing. In a decision promulgated on 17 August 2016 Judge Moxon dismissed the appeal. The appellant now appeals, with permission, against that decision.
Decision of the First-tier Tribunal
4. The judge identified that the issue before him was whether the appellant satisfied Paragraph 276ADE(1)(vi) of the Immigration Rules; or, alternatively, whether her removal would be a disproportionate breach of Article 8 of the ECHR.
5. There was evidence before the judge concerning the appellant’s son and the impact the appellant’s removal would have on him. This included:
a. A report form a clinical psychologist, Dr Thomas, which described the appellant’s son as a vulnerable adolescent at risk of developing psychological problems and expressed the view that “were he to be separated from his mother, the prognosis for his mental health thereafter would be extremely poor”. The report also concluded that the appellant’s removal would adversely impact the mental stability of the appellant’s husband and daughter “which would reduce their capacity to support [the son] in the absence of his mother.”
b. Letters from the son’s teachers and a social worker which state that his mother’s removal would adversely impact his education and emotional wellbeing.
c. Oral evidence that the appellant’s son intended to study medicine and would need his mother’s support
6. The judge also heard evidence about the appellant and her husband’s reasons for leaving Vietnam. Her husband claims to have fled Vietnam after being subjected to an unfair trial. He came to the UK 2003, where he claimed asylum. His application was refused but he did not appeal. The reason he gave for not appealing was that he had language difficulties. The appellant adduced a Record of Core Assessment from Social Services, completed in August 2010, which set out a consistent explanation as to why the family left Vietnam.
7. The judge also considered the husband’s evidence, supported by documentation, about his business.
8. The judge did not find the appellant credible. At paragraph [37] he stated that:
“Various issues arose during the hearing that significantly undermine the credibility of the appellant and her family.”
9. In respect of the appellant’s credibility, the judge found, inter alia, that:
a. “There was an effort to mislead as to the appellant’s husband’s immigration status”.
b. The appellant exaggerated the impact of her immigration status on her son. The judge noted, in this regard, that the appellant’s son has recently improved his school performance notwithstanding his mother’s immigration instability.
c. The appellant and her husband had claimed that their son’s education was their primary concern but their lack of knowledge about his education undermined this.
d. The appellant had not been genuine in stating her expectation that her son would study medicine, given his grades and the absence of reference to this in the letters from teachers.
e. There was no genuine fear about a return to Vietnam and the appellant (and her husband) could seek employment opportunities upon return, where they would have family able to assist them (despite claiming to not be in contact with family).
f. The appellant’s husband had fabricated his account of his business in order to support the immigration claim.
g. Notwithstanding Dr Thomas’ psychology report, none of the family are suffering mental health problems and they have exaggerating their symptoms. The judge noted that none have sought mental health care and the son’s school performance is improving.
10. Having made a negative finding about the appellant’s (and her family’s) credibility, the judge turned to consider Paragraph 276ADE(1)(vi), finding that there are not “very significant obstacles” to the appellant’s integration into Vietnam.
11. The judge then considered the proportionality of the appellant’s removal under Article 8, having regard to the factors delineated in Section 117B of the Nationality, Immigration and Asylum Act 2002. The judge referred to the appellant’s son’s best interests, stating at paragraph [59] “Whilst [the son] is now 18 years of age it is clear that he remains in full time education and is dependent upon his family. His best interests are therefore a primary consideration.”
12. In carrying out a proportionality assessment, the judge found that (a) the appellant does not speak English and is not financially independent; (b) her immigration status has at best been precarious such that little weight can be given to her private life; (c) she could return to Vietnam where she could secure accommodation and support, and she could make an application for entry clearance should she wish; (d) her son would have the support of his sister in the UK should he decide to not return to Vietnam with his mother and if he did return to Vietnam he could build a life there given his knowledge of the language (although he has some difficulties reading and writing); (e) the appellant’s removal would not be determinative of her son’s ambition to study medicine and would not cause him (or anyone else in the family) significant mental health problems; and (f) contact could be maintained through modern technology. Taking these findings into account, the judge concluded that the interference with the appellant’s private and family life arising from her removal would be proportionate.
Grounds of Appeal
13. Noting that the respondent was not represented, and relying on the “Surendran Guidelines” set out in MNM v SSHD [2000] INLR 579, the Grounds of Appeal argue that it was not the function of the judge to make adverse credibility findings against the appellant when the respondent had not done so in the refusal letter. The grounds also state that judge did not inform the appellant that the points raised in the decision were matters of concern but ought to have done so.
14. The grounds of appeal also contend that the adverse credibility findings were perverse. The arguments made include:
a. The appellant’s husband had leave under Section 3C of the 1971 Immigration Act and therefore it was perverse to find he sought to mislead the Tribunal by stating he had discretionary leave.
b. The appellant’s son was a committed student with grades sufficient to study courses such as health studies or biomedical sciences, and therefore it was perverse to find that the family were not honest about believing he will study medicine.
c. The judge had no basis for rejecting the documentary evidence about the appellant’s husband’s business.
15. A further argument made in the grounds is that, in rejecting the appellant’s claim to fear persecution in Vietnam, the wrong standard of proof was applied as the judge should have applied the lower standard of proof.
16. Another argument made in the grounds is that the appellant submitted corroborating evidence concerning the reason to leave Vietnam, in the form of the Record of Core Assessment made in August 2010, but no finding is made as to whether this was accepted or rejected.
17. Another contention in the grounds is that the judge failed to take into consideration the appellant’s traumatic experiences when assessing Article 8.
Submissions at the Error of Law Hearing
18. Mr Jafar relied on and repeated the points made in the Grounds. He argued that the judge had not complied with the “Surendran Guidelines” as he had made adverse credibility findings where none had been made by the respondent and the issues had not been raised at the hearing, where the judge had not given the appellant an opportunity to clarify any concerns. Given that credibility had never been in issue, it was unfair that the judge failed to point out his areas of concern to the appellant or his representative.
19. Mr Jafar highlighted that, in his view, the judge had drawn adverse inferences based on a misapprehension as to the facts. Contrary to the judge’s findings, the appellant’s husband did have leave to remain (under Section 3C of the 1971 Act) and it was reasonable for the family to anticipate the appellant’s son would pursue a career in medicine, given the breadth of that term.
20. He also argued that the judge had applied the wrong standard of proof in respect of the risks in Vietnam, where there were issues of Article 3 ECHR and asylum.
21. Mr Jafar took issue with the judge’s findings in respect of the appellant’s husband’s business, arguing that there was no reason for the judge to consider the documents fabricated.
22. Mr Parkinson argued that it was entirely reasonable for the judge to assess credibility even though it had not been raised by the respondent. There was more evidence before the FtT than before the respondent and this is not a case where the respondent had accepted evidence or made a concession.
23. In terms of the burden of proof, Mr Parkinson argued the judge had applied the correct standard – balance of probabilities – as this was an appeal of a decision under Article 8, not a protection claim.
24. Mr Parkinson maintained that the judge had properly considered the credibility issues and his findings were not perverse.
25. Regarding whether the judge should have put his concerns about credibility to the appellant, Mr Parkinson argued, firstly, that there was no evidence he had not done so. No record of proceedings or witness statement from the advocate in the FtT had been produced. Secondly, he argued that the judge’s approach, in any event, was consistent with WN (Surendran; credibility; new evidence) Democratic Republic of Congo [2004] UKIAT 00213.
Consideration
26. I am satisfied that the judge did not make a material error of law.
27. Firstly, the correct standard of proof was applied as this was not a protection claim where the lower standard of proof was applicable.
28. The appellant applied to remain in the UK on the basis of her family and private life. The arguments she made about fearing the authorities in Vietnam were made, not to support an asylum claim or a claim that her removal would be contrary to Article 3 ECHR, but to substantiate a contention that she would face significant obstacles if required to leave the UK and that her removal would be disproportionate. The applicable standard of proof was the balance of probabilities, and this is the standard that was applied by the judge.
29. Secondly, the judge was not limited to the issues that were addressed in the refusal letter and it was not an error of law for him to assess the evidence before him, including whether he found it (and the appellant) credible. As explained in HT (Surendran Guidelines – Questioning – Test for Bias) Algeria [2003] UKIAT 00128:
It is the function of the Adjudicator to determine the facts in each appeal and whether or not the Secretary of State is represented, the Adjudicator is not in that enquiry limited to issues which are the subject of direct challenge in the refusal letter. It is only where there are issues in respect of which there has been a clear and unequivocal concession on the part of the Secretary of State that it would be inappropriate for an Adjudicator to raise once more the issue which had been conceded. Paragraph 5 of the guidelines is quite clear that there is no limitation on an Adjudicator raising additional points as to credibility which arise from consideration of the papers and this is made clear again in MNM at paragraph 19 in the reference to the earlier Tribunal decision in Muwyinyi that Adjudicators were not bound to accept accounts at face value but could and should probe apparent improbabilities provided they did not involve themselves directly in questioning appellants or witnesses save as necessary to enable them to ascertain the truth, never adopting or appearing to adopt a hostile attitude.
30. Thirdly, given the absence of evidence to support the allegation that concerns about credibility were not raised by the judge, I am not prepared to find an error of law on this point. No witness statements from the appellant or her representative were submitted. Mr Jafar was the advocate in the FtT and he drafted the grounds of appeal alleging that adverse credibility points were not raised by the judge. However, the Upper Tribunal in WN made clear this is not sufficient and that credence should not be given to allegations not supported by evidence. As stated in WN:
At the stage where an application for leave to appeal is made it may sometimes be that a detailed ground of appeal signed by an advocate or representative who has been present will suffice. By the time the matter is dealt with at substantive appeal, however, more than that will certainly be required. We take the view here that there is no evidence which suggests that any issue which the Adjudicator relied on in rejecting the Appellant’s credibility had not fairly been raised by the Adjudicator. Allegations about what happened in front of the Adjudicator are made far too often with no supporting evidence. Credence should not be given to allegations not supported by evidence.
31. Fourthly, I do not agree with Mr Jafar that the judge’s credibility findings were perverse. The judge, having heard oral evidence from the appellant, her husband and her son, and considered this alongside the documentary evidence, made a number of findings which, cumulatively, gave rise to his conclusion about credibility.
32. Mr Jafar highlighted as perverse the judge’s finding that there was an effort to mislead as to the appellant’s husband’s immigration status. His argument was that as the husband’s leave was extended by virtue of Section 3C of the Immigration Act 1971 it was not misleading for him to state that he had leave to remain. I disagree. Where a person’s immigration status is that they have continuation of leave pending a variation under Section 3C, it may well be misleading, depending on the context, for that person to state they have leave to remain in the UK without clarifying that the leave is only because they have an application pending. It was a matter for the judge, having heard the oral evidence, to reach of a view on this and his finding was open to him. Likewise, it was not perverse for the judge to find, based on the appellant’s son’s grades, that the family did not reasonably believe he would study medicine. Mr Jafar argued that medicine is a broad term encompassing a range of courses that the appellant’s son had sufficient grades to undertake. The term medicine can be interpreted in different ways and another judge may have agreed with Mr Jafar’s approach. However, it was not perverse for the judge to take the view that the reference to studying medicine meant an intention to study to become a doctor.
33. I am satisfied that the judge has reached a decision that was open to him on the evidence and that, for the reasons set out above, the grounds of appeal fail to establish that the decision contains a material error of law. Accordingly, the decision stands and the appeal is dismissed.

Decision
A. The decision of the First-tier Tribunal did not involve the making of a material error of law and shall stand.
B. The appeal is dismissed.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 5 March 2017