Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03070/2015

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 9 June 2016
On 26 October 2016

Before

UPPER TRIBUNAL JUDGE ESHUN

Between

mrs tam thanh nguyen
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Jasri, Counsel instructed by A2 Solicitors
For the Respondent: Ms Brocklesby-Weller, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant has been granted permission to appeal the determination of First-tier Tribunal Judge Bart-Stewart in which she dismissed her appeal against the decision of the respondent made on 11 November 2015 to deport her from the UK and to refuse her human rights claim.

2. The appellant is a citizen of Vietnam born on 27 July 1975. She entered the UK on 29 December 2002 using a false name and claimed asylum. She was given temporary admission but failed to attend for a full interview. Her claim was refused on non-compliance grounds and the refusal letter was sent to the address she had supplied.

3. On 7 April 2005 the appellant was convicted at Woolwich Crown Court of cultivating cannabis and sentenced to twelve months' imprisonment. She wrote to the Home Office on 1 July and 4 July 2005 querying her immigration status. On 16 April 2010 she applied for Certificate of Approval to marry Van Tam Hoang. There was correspondence between the Home Office and the appellant's representatives and on 7 March 2011, the application for a Certificate of Approval was granted. There was further correspondence from her legal representatives requesting conclusion of her asylum and human rights submissions and a request for indefinite leave, their representatives claiming that the asylum claim was extant.

4. A notice of liability to deportation was issued on 5 June 2014 referring to the conviction of 7 April 2005. A questionnaire was completed and returned to the Home Office on 14 June 2014. On 1 September 2014 the appellant was encountered by immigration enforcement at a nail and hair salon although she claimed not to be working. On 5 March 2015 a deportation order was signed against her. On 13 March 2015 her solicitors sent a Pre-Action Protocol letter requesting withdrawal of the certification made on 5 March 2015 and sought a fresh decision and an in-country right of appeal. The decision was withdrawn on 22 May 2015. In subsequent correspondence their representatives confirmed that the appellant maintained her asylum claim to have a well-founded fear of persecution in Vietnam. They were given a further ten working days to provide grounds for the asylum claim. There was no response and the asylum claim was refused on 11 November 2015.

5. The judge found that the appellant had no well-founded fear of persecution when she left Vietnam and neither does she have a fear of persecution now. This decision has not been challenged by the appellant.

6. The judge also found that on the evidence the appellant does not have a parental relationship with a child in the UK. This finding has also not been challenged by the appellant.

7. In respect of the appellant's appeal on Article 8 ECHR grounds, the judge considered the appellant's claimed relationship with her partner by reference to paragraph 399(b) of the Immigration Rules. The judge found that the relationship between the appellant and Van Tam Hoang was genuine and subsisting and had been continuing since 2004. She found that at the time the relationship was formed Mr Hoang conceded that he was aware from the outset of the appellant's immigration status although she claimed that it was in 2008. Nevertheless the judge found that the relationship was formed at a time when the appellant was in the UK unlawfully and she knew that her immigration status was precarious. The judge found on the evidence that the appellant does not qualify within the Rules.

8. She went on to find as follows:
"32. I consider the appellant's circumstances outside the Immigration Rules and whether there are compelling circumstances over and above those described in paragraph EX.2 of Appendix FM and it would be unduly harsh for him to remain in the UK without the appellant who is to be deported.
31. The compelling circumstances are set out in paragraph EX.2. Paragraph EX.2 refers to insurmountable obstacles meaning the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner. Does it apply in deport?
32. The appellant's partner is a national of Vietnam. He has continuing ties with that country. His father is there and he last visited him four years ago. At the time the relationship started the partner was aware of the appellant's circumstances which included not only her criminal conduct but also that she was in the United Kingdom unlawfully. Whilst they applied for and obtained a Certificate of Approval for marriage this in itself did not mean that her status was not precarious. On the application form at 4.1 it stated that she had been previously refused asylum and her human rights application was pending.
33. There has been a considerable period of delay in the Home Office in concluding matters. In the refusal letter at paragraph 40 it states that some of the delay must be attributed to the appellant given that she had failed to maintain regular contact with the Home Office and absconded from immigration control until 2010 with the submission of her COA application. However in its summary the Home Office referred to two letters from the appellant on 1 July 2005 and 4 July 2005 querying her immigration status and advising that she wished to go to college to learn English. There was no indication of any reply. Whilst the appellant's offence was serious, she pleaded guilty and having been remanded in custody that time went towards her sentence and she was released soon after sentencing. The sentence would have been spent in 2010 prior to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. There is no evidence of any further offending and the appellant appears to have remained in a stable relationship since that time.
34. It is not reasonable to expect her husband who fled Vietnam as a refugee and who had lived outside of the country for over 26 years and is a British citizen to have to relocate to Vietnam and given the length of time since the appellant herself left the country it may well be that she is no longer in contact with anyone there although she will have retained cultural and linguistic ties and indeed both she and her husband gave evidence in Vietnamese. I accept that it would be unduly harsh to expect her partner to relocate. However, the fact that the relationship was formed and established during a period when the appellant and her partner knew that she had no status and there was nothing from the Home Office in response to her letters in 2005 to confirm the position was otherwise, I find that it would not be unduly harsh for her partner to remain in the UK without the appellant. It is a choice whether he joins her in Vietnam or remains here. There is no evidence that he owns any property. He said he formerly owned a restaurant in the UK and now works in a nail bar, both of which occupations he could take up in Vietnam. His children are adult. There is no supporting evidence from them or evidence of the grandchildren or evidence of the quality of the relationship that he might have with them. In Vietnam he has his father. It is for the appellant and her husband to decide whether they return to Vietnam together and make a life there.
36. Exception 2 applies as the appellant was sentenced to a term of imprisonment of less than 4 years and is in a genuine and subsisting relationship with a qualifying partner. Very compelling circumstances are required to be shown why she should not be deported. The only factor is the marriage. The husband was aware of her status before they married. If she did make contact with the Home Office in 2005 it was after committing a serious criminal offence, an enterprise in which she was involved as soon as she was given temporary admission. Despite the delay in making the deportation order her presence in the UK was always unlawful. She and her husband are from the same country. Both needed interpreters. She has no doubt retained social, language and cultural ties with her own country. Her partner has family in Vietnam. She probably does also. Even if she does not, she was able to open and run her own business there and so can be self-supporting again. It is a decision for them whether her husband joins her in Vietnam or maintains contact some other way. I find that there are no compelling circumstances why the appellant should not be deported."
9. Permission was granted to the appellant by FtTJ Holmes who said that it is arguable, as set out in the grounds, that the judge erred in her approach to s.117A-D, and the Immigration Rules. The judge accepted that the appellant's spouse was a refugee from Vietnam [34], but the remainder of the judge's conclusions in relation to the proportionality of the decision to deport would appear to be inconsistent with that finding. Arguably s.117C(5) applied, so that the public interest did not require the appellant's deportation, since the judge had already concluded that requiring a spouse to relocate was unduly harsh.

10. I agreed with Mr Jasri that the judge erred in her approach when she stated at paragraph 36 that "very compelling circumstances are required to be shown why she should not be deported". This is an erroneous reference to Section 117C(6) where the sentence is of at least four years.

11. I also find that at paragraph 32 the judge got into a muddle when she said she was considering the appellant's circumstances outside the Immigration Rules and yet the words in bold type are taken from paragraph 399(b)(ii) and (iii) of the Immigration Rules.

12. Be that as it may, I accept Ms Brocklesby-Weller's argument that these errors are not material to the judge's decision. This is because firstly. The Upper Tribunal held in AB (para 399(a)) [2015] UKUT 657 (IAC) (20 November 2015) that the requirements in paragraph 399(b) are conjunctive. Therefore the judge's finding that the appellant's relationship was formed at a time when she was in the UK unlawfully and she knew that her immigration status was precarious, meant that the appellant could not satisfy paragraph 399 of the Immigration Rules. Consequently, in view of the closing words of Rule 398, the appellant was required to establish whether "there are very compelling circumstances over and above those described in paragraphs 399 and 399A".

13. This approach is set out in the Court of Appeal's decision in MM (Uganda) & another v SSHD [2016] EWCA Civ 450, paragraph 17(3).

14. This also means that there was no need for the judge to even consider paragraph 399(b) (ii) which she referred to at paragraph 32 of her decision, although I accept that the same factors would have to be considered in relation to the closing requirements of 398 and 399(b)(ii).

15. The judge properly considered the evidence from the second paragraph 32 to paragraph 34. Indeed, the appellant had told the judge that her husband last visited Vietnam in 2012. So whilst he entered the UK as a refugee from Vietnam and is now a British citizen, his visits to Vietnam in 2012 indicated that he had no fear of being persecuted there.

16. I find that on the evidence before her the judge made findings that were perfectly sustainable. The errors she made were not material to her decision. Her decision dismissing the appellant's appeal shall stand.

Notice of Decision

The appeal is dismissed

Signed Date: 27 June 2016

Upper Tribunal Judge Eshun