Upper Tribunal (Immigration and asylum chamber), 2019-11-14, RP/00026/2019
| Jurisdiction | UK Non-devolved |
| Date | 14 November 2019 |
| Published date | 03 February 2020 |
| Hearing Date | 08 November 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | RP/00026/2019 |
Appeal Number: RP/00026/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00026/2019
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 8 November 2019 |
On 14 November 2019 |
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Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
V T
(anonymity directioN MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Uddin, Counsel, instructed by Kataria Solicitors
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer
Anonymity
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the Appellant or members of his/her family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
DECISION AND REASONS
Introduction
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This is the remaking of the decision in this appeal following my previous decision, promulgated on 18 September 2019, that the First-tier Tribunal materially erred in law when allowing V T’s appeal.
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Although it was the Secretary of State who appealed to the Upper Tribunal, at this stage of proceedings it is now appropriate to refer to V T once more as the appellant, and to the Secretary of State as the respondent.
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This appeal concerns two principal issues. First, has the respondent shown that the appellant is no longer a refugee because the circumstances in connection with which he had been recognised as such have ceased to exist? (the cessation issue). Second, is the respondent’s decision to refuse the appellant’s human rights claim on the basis that he is a foreign national criminal and should be deported, unlawful, with reference to Article 8 ECHR and section 6 of the Human Rights Act 1998? (the deportation issue).
Background
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The appellant is a national of Vietnam, born on 25 October 1955. It is not entirely clear when he left that country, but it is common ground that he arrived in Malaysia in February 1989, whereupon he resided in what was very probably a refugee camp catering for compatriots who had also fled the regime as members of the cohort referred to as the “Vietnamese boat people”. The appellant came to the United Kingdom on 19 June 1991. The precise basis upon which this occurred is a matter to which I will return: was he a refugee in his own right, or what his entry by way solely of a family reunion policy (the appellant’s brother had already come to the United Kingdom and was a refugee)? Once in this country, the appellant was granted indefinite leave to remain as a refugee on 29 January 1992. His wife and children subsequently joined him here under a family reunion policy.
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Over the course of his lengthy residence in the United Kingdom, the appellant has accrued the following convictions:
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6 March 1997: driving a motor vehicle with excess alcohol, fined £200 and disqualified from driving for 3 years;
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2 November 2001: driving a motor vehicle with excess alcohol, sentenced to 60 days’ imprisonment and disqualified for 4 years;
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15 August 2005: conspiracy to produce a Class C drug, namely cannabis (my error of law decision erroneously referred to “Class B drugs”). On 13 February 2006, he was sentenced to 15 months’ imprisonment;
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20 June 2011: driving a motor vehicle with excess alcohol, given a 12 month community order (with a 260 hours unpaid work requirement) and disqualified for 40 months.
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On 4 October 2016, the appellant was served with two notices: the first was a decision to deport, with reference to the UK Borders Act 2007; the second related to notification of intention to cease refugee status, with specific reference to Article 1C(5) of the Refugee Convention (“the Convention”) and paragraph 339A(v) of the Immigration Rules (“the Rules”). The next action taken by the respondent was by way of a decision to deport, dated 22 April 2018. However, this decision was subsequently withdrawn on the basis that it relied on the UK Borders Act 2007, which had not been in force at the time of the relevant conviction and sentence relating to the drugs offence. It took the respondent another relatively substantial period of time to issue a legally correct decision to deport on 30 January 2019, this time relying solely on section 3(5)(a) of the Immigration Act 1971. On 13 March 2019, the respondent issued a “cessation of refugee status” decision letter, again relying on Article 1C(5) of the Convention and paragraph 339A(v) of the Rules. On the same date, the respondent made a decision to refuse the appellant’s human rights claim, which had been constituted by a series of representations submitted in 2016 and 2018. These last two decisions were both appealable.
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In allowing the appellant’s appeal, the First-tier Tribunal essentially concluded as follows. First, that the respondent had failed to show that there had been a sufficiently significant and durable change in the nature of the Vietnamese government since the appellant left that country, and that the respondent failed to undertake verification checks in respect of any potential risk to the appellant on return. Second, that the respondent’s delay in taking deportation action against the appellant was such that it outweighed the public interest.
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My error of law decision is appended to this remaking decision. In summary, I found that the judge had failed to adopt an individualised approach to the cessation issue, focusing instead simply on the objective aspect (in other words, the human rights record of the government). There had been a misunderstanding as to what “verification” meant in respect of a cessation case. Finally, although the delay issue was clearly relevant, the judge had failed to other material factors such as deterrence and public confidence when undertaking the Article 8 balancing exercise.
The respondent’s case in summary
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The respondent asserts that the appellant came to the United Kingdom solely on the basis of family reunion, and that he did not have, and currently does not have, any political profile that might place him at risk from the Vietnamese authorities. On the basis of country information cited in the cessation decision letter of 13 March 2019, it is said that the situation in Vietnam has “fundamentally and durably changed” since the appellant left in 1989. It is noted that the appellant had made four visits to Vietnam over the course of time, and this was indicative of an absence of risk to him in that country.
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In respect of Article 8, it is said that the appellant is unable to meet any of the relevant Rules. He separated from his wife, and his current partner, also a Vietnamese national, has no status in the United Kingdom. The appellant children are all adults, and there is no evidence of particular dependency. The appellant is not more than half of his life in this country and would, in all the circumstances, be able to reintegrate into Vietnamese society. There are said to be no very compelling circumstances over and above those set out in paragraphs 399-33A of the Rules and section 117C(4) and (5) of the Nationality, Immigration and Asylum Act 2002, as amended (“the 2002 Act”).
The appellant’s case in summary
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On the basis of the representations submitted over time, the appellant’s three witness statements, and his oral evidence, he asserts that there had been a personalised risk to him when he left Vietnam: he had been imprisoned by the regime on two occasions and held anti-regime beliefs. Whilst he has not been politically active in the United Kingdom, he still holds anti-regime beliefs. This would be the case upon return to Vietnam. He would not dare to express those beliefs on return due to the risk of being targeted as a result. The appellant asserts that the Vietnamese regime continues to have a very poor human rights record. The visits to Vietnam are explained by way of important family occasions (including his father’s funeral) and that these events do not show that he would be safe.
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As to Article 8, the Appellant asserts that the time spent away from Vietnam, the ties established in the United Kingdom, and, most importantly, the respondent’s delay in taking deportation action, combine to significantly reduce the public interest and tip the balance in his favour.
The law
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The relevant legal provisions are well-known, and I do not propose to rehearse their content in full. It suffices to set out the primary materials.
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Article 1A(2) of the Refugee Convention states:
“A. For the purposes of the present Convention, the term "refugee" shall apply to any person who:
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(2) […] owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …”
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Article 1C(5) of the...
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