Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
UI-2025-000677 & UI-2025-000678
First-tier Tribunal Nos:
PA/59865/2024 and PA/59886/2024
IA/01181/2024
IA/01180/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

10th December 2025

Before

UPPER TRIBUNAL JUDGE LANE

Between

JN AND LN
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Ms Blockley
For the Respondent: Mr Mullen, Senior Presenting Officer

Heard at Edinburgh on 5 June 2025

DECISION AND REASONS

1. The appellants are minor citizens of Vietnam. They made applications for international protection which were refused by the Secretary of State by decisions dated 24 August 2020. The appellants appealed to the First-tier Tribunal which dismissed their appeals. They now appeal to the Upper Tribunal.

2. The appellants do not dispute the dismissal of their claims for asylum. The father and mother of the appellants also made separate claims and appeals for international protection. I understand that the mother’s appeal was dismissed and that of the father allowed on Article 8 ECHR grounds but dismissed on asylum grounds.

3. The grounds of appeal make three challenges to the First-tier Tribunal’s decision. First, it is asserted that the judge erred in law by not taking as the starting point of his Article 8 ECHR analysis the fact that both appellants had been living continuously in the United Kingdom for more than 7 years (they had been born in the United Kingdom in 2017 and 2018 respectively). Secondly, the appellants assert that the Tribunal was wrong to have recorded that there was no copy of the father’s appeal decision available. A copy had been provided to the Tribunal. Thirdly, the mother had given evidence (which had not been expressly rejected by the Tribunal hearing her appeal) that the appellants had ‘British friends’ in the United Kingdom.

4. The first challenge is without merit. The grounds quote Home Office guidance (Private Life Version 2.0) which states ‘The assessment must look at what is reasonable based on the child’s current circumstances. This refers to the present state of affairs and not to the future. The starting point is that we would not normally expect a qualifying child to leave the United Kingdom.’ [the emphasis in the grounds]

5. At [45-50] the judge wrote:
45. I find that Article 8 is engaged on the basis of family life between the Appellants and their mother.

46. From the information before me, I find that the Appellants do not meet the Immigration Rules. In the course of the hearing, the Appellants’ representative assessed the asylum claim as “an uphill struggle” and it was clear that the focus of the case was a claim under Article 8. That being the case, it is perhaps surprising that there is no indication in the ASA (lodged in July 2024) as to how the Appellants consider that they meet the Immigration Rules. In submissions, the Appellants’ representative advised that the older Appellant met both the provisions of Appendix FM and of Appendix PL, but no details of the specific rules that they met were provided under each Appendix. When I asked what specific rules were met under each Appendix, I was advised that the Appellants met EX1 in Appendix FM, but there is clear case law in Sabir [2014] UKUT 63 (IAC) that EX1 works alongside the provisions in Appendix FM rather than being a standalone provision. No concessions were made by the Respondent’s representative that the Rules were met. In the absence of further information and clarification from the Appellants, particularly on a provision which is fairly central to their case, I find I cannot reach the conclusion that the Rules are met.

47. From my own reading of the Appendix Private Life, specifically para PL3.1, where applicants are under 18, they will meet the rules if they have been continuously resident in the UK for at least 7 years AND it would not be reasonable to expect the applicant to leave the UK. Residence alone is therefore not enough to meet the Rules.

48. I consider that it would not be unreasonable for the Appellants to leave the UK. Everything before me, including the best interests assessment of the children, points to both Appellants and their mother remaining together as a family unit. Both Appellants are financially and emotionally dependant upon their mother who is a Vietnamese national. The Appellants have no wider extended family within the UK. DTD’s own asylum appeal has been determined, her own appeals rights have been exhausted for some years now, and it has been determined that there is no barrier to her being returned to Vietnam. Accordingly it is appropriate and reasonable for the Appellants to be returned to Vietnam with her.

49. The absence of information before me about VTN precludes me from making any findings about the Appellants’ relationship with him.

50. For all the above reasons, I find that the Appellants do not meet the Rules.

6. The judge has considered all the relevant evidence and has reached a conclusion (that it would be reasonable for the appellants to leave the United Kingdom, notwithstanding that the appellants are Qualifying Children (having been resident in the United Kingdom for at least 7 years, which was plainly available to him on the evidence. The appellants do not assert that the decision is irrational or otherwise was not available to the judge but rather that the judge should have taken as his starting point the passage in the guidance which I have highlighted above. The problem with that argument is that it is clear from [48] that, whatever the starting point for the assessment, ‘everything’ before the judge pointed to one outcome – that the appellants should stay with their mother who, having lost her appeal, will be returning to Vietnam. In short, the starting point did not determine the outcome of the assessment and there is absolutely no reason to consider that the judge would have reached a different outcome if he had used the starting point indicated by the guidance or, indeed, any other.

7. The challenge regarding the missing decision in the father’s appeal is also without merit. At [9] the judge wrote:

No details of any asylum claim made by the children’s father was before me, nor whether the Appellants had been included as dependants in that claim. The ASA intimated that the father had an outstanding appeal and in reply the RR set out that the Respondent could not locate details of any appeal. At the hearing the Appellants’ representative intimated that the Appellants’ father’s asylum appeal had been allowed by Judge Farrelly under Article 8. That decision however was under appeal by both the Respondent contesting the Article 8 findings and by the Appellant contesting the refusal of the asylum claim. I was advised that the Respondent’s delay in determining the father’s asylum claim had led to the Appellants lodging separate asylum claims.

8. Frankly, it is immaterial whether the judge saw the father’s decision or not. At the time of the hearing, that decision was under appeal whilst the conclusions of another First-tier Tribunal judge would not have bound the judge in the instant appeal. Moreover, it was the judge’s conclusion that the appellants could accompany their mother to Vietnam; her appeal had been unsuccessful. If the father has been given leave to remain following his appeal and the circumstances of the appellants change, then they will no doubt consider making a further application to the Secretary of State. However, so far as the legal soundness of the instant decision is concerned, it is not necessary to determine whether the judge had sight of the father’s decision. In any event, I agree the submission of Ms Blackburn, who appeared for the Secretary of State before the Upper Tribunal, that there is no clear evidence that the decision was before the judge; the presenting officer before the First-tier Tribunal made no mention of the supplementary bundle of documents which I understand may have contained the father’s decision.

9. The third challenge is also without merit. At [41c] the judge accepted ‘that [the appellants] will have established relationships to some extent with friends at school but there is nothing before me to suggest that these relationships are particularly deep or could not be maintained from Vietnam via modern means of communication.’ It is not suggested that the mother’s decision contains evidence of friendships in the United Kingdom were any different than those characterised by the judge.

10. The judge considered all the relevant evidence and reached an outcome which was rational and available to him on the evidence. I do not accept that, had the judge expressly started his analysis from the starting point in the Home Office guidance, that he would come to a different conclusion. Accordingly, the appeals are dismissed.

Notice of Decision

The appeals are dismissed.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 2 October 2025