Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005569

First-tier Tribunal No: PA/57362/2023 IA/00999/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 09 April 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE SKINNER

Between

ZHIJUAN CHEN
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr B. Shabbir, counsel, instructed by Chung Solicitors
For the Respondent: Dr S. Ibisi, Senior Home Office Presenting Officer

Heard at Field House on 24 March 2025

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Cowx, promulgated on 9 October 2024 (“the FTT Decision”) in which he dismissed the appellant’s appeal against the respondent’s decision dated 15 September 2023 refusing her protection and human rights claims.
2. The appellant is a national of China. She claimed that she would be at risk on return there by reason of her undisputed homosexuality. She further claimed that her return would breach her and her wife’s Article 8 ECHR right to respect for their family life. There is now no issue in respect of her protection claim. The only issues on this appeal relate to the Article 8 claim.
3. No order for anonymity was made by the First-tier Tribunal (“the FTT”) and the appellant did not seek one before me. I therefore make no anonymity order.
The FTT Decision
4. By way of background, at §2.4 of the FTT Decision the FTT noted that the appellant came to the UK as long ago as 29 July 2007. She initially was here on a student visa, valid until 30 October 2010. She then overstayed in the hope of reaching 14 years continuous residence at which point she would have become entitled to apply for leave on the basis of long residence, but the Immigration Rules subsequently extending the requisite period to 20 years. The appellant essentially lay low after the expiry of her visa until she made her asylum claim on 19 November 2021. Similarly, the appellant’s wife entered the UK in 2002 with a visa, remained as an overstayer and then obtained leave to remain in 2019.
5. After setting out the evidence and legal framework, the Judge turned to his findings at section 5 of the FTT Decision. In relation to the protection claim, the Judge considered that the appellant did not have a well-founded fear of persecution for a convention reason if returned and, if he was wrong about that, he was not satisfied that she did not have the option of internal relocation nor that there was not sufficiency of protection for her in China. As the protection claim is no longer in issue, I need not set out the Judge’s reasoning further in relation to this.
6. The Judge turned to Article 8 at §5.7. He directed himself in accordance with R (Razgar) v SSHD [2004] UKHL 27 and set out that he had also applied the “statutory direction” contained in ss.117A-D of the Nationality, Immigration and Asylum Act 2002. The Judge considered that removal would amount to an interference with the exercise of the appellant’s and her wife’s private and family life. The first step in the 5-stage Razgar ‘test’ was therefore met. However, at §5.13 he considered that that interference would not have consequences of such gravity so as to engage Article 8. The Judge’s reasoning in this respect forms the central aspect which is criticised by the appellant on this appeal and therefore merits setting out in full:
“My determination on this point is based on the evidence before me. An important question which was not raised and answered at the hearing was whether or not the Chinese immigration rules will allow [the appellant’s wife] to live in China with [the appellant]. I accept the evidence which is that same sex marriage is not recognised in China. This may present an obstacle to [the appellant’s wife] being granted status to live in China with [the appellant], alternatively it may not. This was not addressed by the Appellant, and I cannot speculate on what the true immigration position is in China. Without evidence or submissions on the point I cannot find that [the appellant’s wife] will not be permitted to live with [the appellant] and my step 2 determination is made on the basis that [the appellant’s wife] will be allowed to live with [the appellant] in China where they can carry on living their family and private lives together, albeit not in their country of choice.”
7. At §5.14, the Judge considered whether there were insurmountable obstacles to the appellant and her wife continuing their family life in China on the assumption that the wife could relocate there. The Judge considered there were no obstacles to the appellant reintegrating given that she speaks the language and left China as an adult. In relation to the appellant’s wife, the Judge noted that she is not a citizen of China and may face greater challenges because it is a country with which she is unfamiliar, but he did not consider these to be insurmountable obstacles. This was because she is of Chinese ethnicity and speaks Mandarin. If she accompanied the appellant, she would be assisted with integration. The Judge noted that the appellant’s wife may prefer to enjoy her private and family life in the UK, especially when she is on the route to settlement, but she entered into marriage after beginning on that route to settlement knowing that there was a very real prospect she would have to sacrifice her life in the UK for a family life with the appellant in China.
8. As to proportionality, the Judge, at §§5.16-5.18, stated:
“5.16…I accept that material weight must be given to fact that removal will mean that [the appellant] and [her wife] have a difficult choice to make. They will either have to end their relationship or try to continue it at long distance and apart for most of the time. Alternatively, they can continue their relationship in China, if that country permits it. I do not see that return to China would cause any great difficulty for [the appellant] who is a Chinese national, but it will be a greater upheaval for [her wife]. However, I am not satisfied that both cannot make the adjustment given that both have made the adjustment to life in the UK without difficulty. They may not enjoy the freedoms they enjoy in the UK, but I am not satisfied this is a bar to living a private and family life together. I take into account the fact their marriage may not be recognised in China, but I have not been persuaded on the evidence that they cannot continue living together as a married couple even without state recognition of their UK legal status as a married couple. Again, I emphasis I reach this decision based on the evidence presented and on the basis [the appellant’s wife] will be permitted to live in China.

5.17 When weighing up proportionality I have had regard to the public interest in the maintenance of effective immigration controls. [The appellant] was living unlawfully in the UK for 11-years before applying to regularise her status. She entered into a relationship with [her now wife] and then a marriage knowing that she was living in the UK illegally and was at risk of removal. [The appellant’s wife] was also fully aware of this risk. In her asylum interview [the appellant] admitted that a reason for marrying [her wife] was security. She married [her wife] because [she] had status, and she believed that status would assist her in gaining similar status. Accordingly, I must have regard to the statutory direction that little weight should be given to private and family life established in the UK when immigration status is precarious.

5.18 The immigration history of applicants is also a relevant consideration when striking the balance between Article 8 rights and the countervailing public interest in maintaining effective immigration control. In [the appellant’s] case, she has used marriage to someone who has lawful status in the UK as part of a strategy to circumvent the UK’s immigration controls. Such a strategy would surely cause offence to the reasonable, well informed UK citizen and the public interest must be against condoning such behaviour. Removing an applicant or Appellant in such circumstances must discourage others from attempting to do the same.”
9. The Judge accordingly considered that any interference with Article 8 would be proportionate.
Appeal to the Upper Tribunal
10. The appellant appeals on two grounds.
11. First, it is said that the finding that the appellant’s wife could go with the appellant to China was based on a misunderstanding, or reached in ignorance of, an established and relevant fact, within the meaning of E v SSHD [2004] QB 1044, namely that the appellant’s wife does not qualify for a Chinese visa, and consequently she cannot legally enter or remain in China. This was said in the grounds to be made out by reference to Part II of the Consulate-General of the People’s Republic of China in Edinburgh, Notice of Updated Requirements for Chinese Visa Applications of 22 June 2022, which was not in the bundle before the FTT.
12. By ground 2, the appellant submitted that the Judge erred in §5.13 in that he made a finding that no reasonable Judge would have made and failed to have regard to all relevant considerations.
13. Permission to appeal was granted by FTT Judge Mulready on 4 December 2024. The respondent did not file a rule 24 response.
14. On 11 March 2025, the appellant made an application under rule 15(2A) to admit evidence in relation to Chinese visa categories from the Guangdong Qianfa Law Firm.
15. That is the basis on which the appeal comes before me to determine whether the FTT Decision involved the making of an error of law.
Analysis
Ground 1: Error of fact
16. As to the ground based on mistake of fact, I have no doubt that this is not the sort of fact that is capable of constituting such an error. This is for four reasons.
17. First, whether it is possible for someone to obtain a visa to another country is not in my judgment an ‘objectively verifiable’ fact, as is required for a mistake of fact to constitute an error of law. Even if the issue were constrained to whether there was a specific visa route for same-sex spouses of Chinese nationals, that is a question of Chinese law which would in the normal course of events be required to be proved by expert opinion evidence (see CS (Proof of Foreign Law) India [2017] UKUT 199 (IAC)), as the appellant appears to recognise in submitting the rule 15(2A) application. It does not seem to me that a category of fact in respect of which the Tribunal requires the assistance of an expert is able, at least normally, to fall within the description of uncontentious and objectively verifiable facts.
18. Moreover, the question of whether the appellant’s wife can relocate to China is not simply a question of whether there is a specific same-sex spousal visa route for her to apply for, but rather a wider one, including whether there are other routes to her entry and residence in China, by virtue of, e.g. employment. Even if the narrower question were, contrary to the above, a sufficiently objectively verifiable one, this wider question plainly is not.
19. Second, the question of whether the appellant’s wife can obtain a visa to move to China is not ‘uncontentious’. Indeed, to the contrary, the Respondent’s position as set out in her reasons for refusal letter dated15 September 2023 is that she can move to China. The appellant has made submissions about the correctness of that, but the fact that the appellant disagrees with the respondent’s assessment means that the ‘fact’ is contentious, not uncontentious.
20. Third, for an error of fact to amount to an error of law, it must, at least normally, not be the fault of the party seeking to rely on the error that the true factual position was not brought to the attention of the decision-maker said to have made the error. Here, there is an issue under Ground 2 about whether there was an absence of evidence as the FTT said in §5.13 that there was, but to the extent that there was, the absence of evidence was plainly the fault of the appellant. As already noted, the respondent asserted in her decision that the appellant’s wife could relocate to China, and if the appellant wished to counter that, she was required to put in evidence (including potentially expert evidence: see CS, above), but she did not do so.
21. Fourth, I decline to admit the evidence that was not before the FTT, namely (i) Part II of the Notice of Updated Requirements for Chinese Visa Applications of 22 June 2022 from the Consulate-General of the People’s Republic of China in Edinburgh, which was filed with the grounds of appeal; and, (ii) the evidence from Guangdong Qianfa Law Firm filed with the rule 15(2A) application. In the E case, Carnwath LJ emphasised that it was necessary for evidence proving a mistake of fact to meet the requirements of the Ladd v Marshall test save in an exceptional case where the interests of justice required (see [91]). This evidence does not in my judgment meet the requirements of Ladd v Marshall. There is no reason why this evidence could not have been obtained with reasonable diligence before the FTT, and indeed the appellant did not suggest to the contrary. This is also not in my judgment an exceptional case where the interests of justice require the late evidence’s admission. Paragraph 353 of the immigration rules provides a mechanism where fresh human rights claims can be made where, although the basis of the claim is the same, the evidence is improved. Notwithstanding that the appellant could have (and should have, in light of the fact that the respondent’s case was clearly that the appellant’s wife could go with her to China) deployed this evidence before the FTT, her failure to do so does not preclude her from making a further claim in future on the basis of this further evidence. That evidence not having been admitted, the appellant cannot prove the mistake in any event.
Ground 2: Irrationality
22. This ground takes aim at the Judge’s conclusion in §5.13 that “Without evidence or submissions on the point I cannot find that [the appellant’s wife] will not be permitted to live with [the appellant]”. While the grounds accept that there were no submissions on the point, it is said that by this passage the Judge was finding that there was no evidential basis on which to make a finding about the appellant’s wife’s ability to live in China, which, in the appellant’s submission, there was.
23. The first point to note about this submission is that the extent of the appellant’s own evidence about this is [15] of her witness statement. In that paragraph, she states, “Same sex marriage does not exist in China and that [sic] there is no legal recognition of same sex relationships. While there may be a visa process for a foreign same sex partner to immigrate to China, that was several years ago and the crackdown on LGBT groups and the lack of legal protection for us makes me and my partner afraid to go to China. I believe that it would not really be possible for my wife to join me in China.” This is not evidence that it is not possible, as a matter of Chinese immigration law, for the appellant’s wife to join her in China. To the contrary, the appellant appears in this paragraph to accept that it is legally possible for her wife to do so, but that as a result of recent crackdowns, it is practically difficult to live in China together. This is also consistent with what the appellant said in [13], that “Even assuming she could join me in China, it would be almost impossible for me and my wife to live there and I do not want to be separated from her.” To the extent that the appellant’s submission relies on what is said in her witness statement, I reject it. The appellant’s case in this statement proceeds on the assumption that her wife could, as a matter of Chinese immigration law, relocate to China.
24. Similarly, in the appellant’s skeleton argument, after considering whether the appellant could return to China for the purpose of making an entry clearance application to the UK, at [19], it stated that “Thus, the only other solution is for the couple to move to China. For the reasons set out above, that should not be asked of the Appellant or her partner. Additionally, it is submitted that it is disproportionate to ask her partner to give up her route to settlement and all the future rights which it confirms to go to live in China. [The appellant’s wife] has established her life in the United Kingdom. She has no one other than the Appellant in China. It is submitted it is not reasonable for the Home Office to insist that the couple move to China.” In the conclusion of the skeleton argument, at [22], it was submitted that “the Appellant cannot seek entry clearance as a spouse and that the Appellant and her partner cannot go to China to live together as they could not live openly as a couple as they do here.” The case that the appellant was putting forward before the FTT was accordingly not that her wife was legally unable to go to China with her, but rather that it would be unjustifiably difficult for her to do so.
25. The grounds make a number of points about (a) the quality of the evidence that was relied on in the respondent’s decision letter on the basis of which it was suggested that the appellant’s wife could go with her to China and (b) about other aspects of the background evidence relating to LGBT rights in China more generally. Addressing these briefly in turn:
a. In light of the way the appellant’s case was put in submissions and in her own evidence however, I do not consider that the Judge was required to drill down into the underlying evidence relied on by the respondent for the proposition that the appellant’s wife could go to China, to see whether it in fact discharged the appellant’s burden of showing the very opposite. If the appellant wished to show that she could not do so, it was for her to explain her case to the FTT.
b. In relation to the background evidence, it is clear from the Judge’s decision that he was well aware of the difficulties facing LGBT persons in China, and there is in my judgment no reason, still less a compelling one (as is required: Volpi v Volpi [2022] EWCA Civ 464 at [2(iii)]), to depart from the assumption that the Judge took into account all of the evidence that was before him. Moreover, none of this evidence goes to whether the appellant’s wife could, as a matter of immigration law, go to China with the appellant. Even if there were a compelling reason to consider that he had not done so, I would therefore not have considered such an error to be material. In my judgment, no rational tribunal could, on the basis of the evidence cited in the Grounds, have concluded that the appellant’s wife, on the balance of probabilities, could not go to China.
26. In the circumstances, the appeal falls to be dismissed.

Notice of Decision
The decision of First-tier Tribunal Judge Cowx promulgated on 9 October 2024 does not involve the making of an error of law and shall stand.

Paul Skinner

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 April 2025