Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06521/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 February 2019
On 13 March 2019

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

Mrs Hien Thi Tran
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr A Khan, Counsel, instructed by Thompson & Co Solicitors (Wimbledon)
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS

1. In a decision posted on 26 November 2018 Judge Talbot of the First-tier Tribunal (FtT) dismissed the appeal of the appellant, a national of Vietnam, against the decision made on 9 June 2016 refusing her protection claim. Her original appeal had been heard by Judge Paul of the FtT on 9 March 2017 but that had been set aside for material error of law.

2. The appellant's written grounds levelled five criticisms of the judge's decision, but permission was granted only on ground 4 which contends that the judge erred in finding that the appellant could not meet the insurmountable obstacles test, even though her partner was a naturalised refugee. At issue was what the judge said at paragraph 41:

41. With regard to Appendix FM (family life), the Appellant claims to have a partner in the UK, namely Mr [DVN], a British citizen, who gave evidence before me. Mr Eton was not satisfied that they are in a relationship as claimed because of discrepancies in their answers to questions that he put to them such as the celebrating of their birthdays (although other answers given were consistent). There is also a lack of supporting evidence regarding their cohabitation. Having heard from them both in person, I nevertheless consider that it is more likely than not that they are in a cohabiting relationship as claimed. However, the Appellant does not meet the 'immigration status requirements' of Appendix FM, as she lacks any leave to remain in the UK. She has also failed to provide evidence of meeting the financial or English language requirements. In relation to paragraph EX.1, the Appellant would have to establish that there are insurmountable obstacles to family life with her partner continuing outside the UK. Mr Dong states that he was granted refugee status in the UK but he is now a British citizen and there was no evidence before me how they would meet the very high threshold of 'insurmountable obstacles' to them returning to Vietnam as a couple. I conclude that the Appellant cannot succeed under Appendix FM on the basis of 'family life'.

3. I heard concise submissions from both representatives.

4. If there had been significant evidence before the FtT Judge that the appellant's partner was a national of Vietnam who had been granted refugee status in relation to that country, I may have been open to persuasion that the judge erred in law, although even then I doubt any error would have been material since there was no evidence before the judge to indicate that her partner, who stated that he had arrived in the UK as long ago as 1977, would still be at risk on return, over 50 years on.

5. However, the twofold problem for the appellant is that:

1) the only evidence produced to support in any way this claim was a statement by her partner (said in oral evidence to be true and correct), and in the statement the claim made is simply that he is a naturalised refugee. Although he stated that he could not go "back" to Vietnam, he did not state that he is a national of Vietnam. His given nationality is Cambodian. He said nothing regarding adverse experiences in Vietnam. He gave no indication of how long ago he was recognised as a refugee. Further, the statement referred to coming to the UK over 30 years ago;

2) Mr Tufan stated that the respondent had undertaken a check of Home Office records relating to this person and no record of him being granted refugee status was found. The only entry held showed that he was a naturalised British citizen whose application for a certificate of approval of marriage to a national of Taiwan had been refused on 24 April 2009.

6. Put another way, despite the respondent actively cooperating to assist the appellant discharge the onus on her to substantiate her claim that her partner could not accompany her to Vietnam, the claim made by her partner had not been substantiated.

7. For the above reasons I conclude that the judge did not materially err in law and accordingly his decision to dismiss the appellant's appeal must stand.

No anonymity direction is made.

Signed Date: 8 March 2019

Dr H H Storey
Judge of the Upper Tribunal