Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01642/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 25 October 2016
On 27 October 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

NIGHIA TRUNG LE
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Miss L Irvine, Advocate, instructed by Latta & Co, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a determination by First-tier Tribunal Judge Gillespie, dismissing his deportation appeal. He was granted permission by the FtT, "limited to the paragraph 398 grounds". He did not apply further for permission.
2. The appellant's case was lucidly set out in a note and in oral submissions by Miss Irvine. Reduced to its essence, the appellant says that the judge failed to consider article 8 of the ECHR, section 117C of the 2002 Act, or paragraph 398 of the immigration rules (paragraph 13 of the note), and that the decision should be remade in his favour, based upon an expert report. The appellant's receipt of documents stolen from the Vietnamese government, dating back to his grandfather's problems with that government, exposed him to risks including detention without charge, torture, and prosecution for acquisition of secret documents on military activities; or at least to problems through stigma derived from his grandfather's convictions and his own conviction in the UK, the negative attitudes of Vietnamese society towards criminals, and difficulty in securing official registration, and consequently in securing employment. These constituted very compelling circumstances in terms of paragraph 398 of the rules, over and above those described in paragraphs 399 and 399A.
3. Mr Matthews submitted thus. The case in the FtT was put under articles 3 and 8. The judge correctly rejected the case under article 3, which was argued on the basis that the government might target him for his family links. The judge did appear to have proceeded on the basis that the documents produced were genuine, but plainly rejected as far-fetched the appellant's account that he was instrumental in recently having them stolen. Rather, the judge sensibly explained at paragraph 26 why he found that the documents were in prior possession of his relatives in Germany. The expert report was predicated on the appellant being responsible for stealing the documents and on the Vietnamese authorities being aware of that. Once that assumption was removed by the judge's findings, any significance of the report fell away. Permission had not been granted on grounds directed against those findings, and in any event there was no substance in the grounds on which permission had been refused. There was no basis on which the appellant was likely to be prosecuted, tortured or otherwise ill-treated for betrayal of state secrets. The report made further assumptions which it failed to justify. The appellant had not claimed to engage in any political opposition from abroad. The author did not justify by source references her views on difficulties over registration and employment. The judge did not accept that the family would suffer serious adversity over thirty years after the grandfather's imprisonment and found that other difficulties alluded to in the expert report regarding employment and residential registration were "not of such a serious order as to engage article 3 ECHR" (paragraph 29). The judge did not separately explain the outcome with reference to article 8, but that had to be the same. There were plainly no very compelling circumstances.
4. Miss Irvine in reply said that the respondent's argument depended on rejection of how the appellant came by the documents, but the basis of the appellant's problem was simply possession of the documents, regardless of how they were obtained. She also said that the respondent was not entitled now to raise criticisms of the expert report which had not been made in the FtT.
5. I reserved my decision.
6. I think the expert's qualifications are sufficient to give credit to what she says about matters such as the registration system in Vietnam. However, I do not find anything in those matters which bears significantly on the outcome.
7. It might not be apt for the respondent to develop new criticisms of the expert report as a way of supporting the FtT decision, but such comments become open if the stage of remaking the decision is reached, or as alternative submissions.
8. There is no reason to think that the Vietnamese authorities would take any interest at all in the appellant over documents relating to his grandfather's long-ago trial, if he did not come by them as he claimed. That part of the judge's findings is not open to attack, and in any event his reasons are sensible.
9. Whether the threshold for article 3 risk and the threshold for article 8 in terms of very compelling circumstances is exactly the same, I need not decide. It is sufficient to note that it is a deliberately high test, and that for the same reasons as the judge gave when dismissing the case under article 8, this case inevitably failed under paragraph 398. The judge may not have needed to say any more in the end than he did, that the appeal was dismissed also "against deportation"; but there should ideally have been before that express consideration by reference to article 8 of the ECHR, section 117C of the 2002 Act, and paragraph 398 of the immigration rules, as in the framework of counsel's note.
10. The criticism is a counsel of perfection. I see no need to set aside and remake the decision. If there had been, I would have no difficulty in holding that the appellant has shown no problems he might realistically encounter in Vietnam which even approach the level of very compelling circumstances, so as to outweigh the strong public interest in his deportation as a foreign criminal.
11. The determination of the First-tier Tribunal shall stand.
12. No anonymity direction has been requested or made.

26 October 2016
Upper Tribunal Judge Macleman