Upper Tribunal (Immigration and asylum chamber), 2023-06-22, UI-2023-000763
| Appeal Number | UI-2023-000763 |
| Hearing Date | 12 May 2023 |
| Date | 22 June 2023 |
| Published date | 07 July 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: UI-2023-000763
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case Nos: UI-2023-000763 First-tier Tribunal No: HU/18955/2018 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 22 June 2023
Before
DEPUTY UPPER TRIBUNAL JUDGE BAGRAL
Between
THI LAN ANH DOAN
(NO ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr G Mavrantonis, Counsel instructed by London Law Chambers
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer
Heard at Field House on 12 May 2023
DECISION AND REASONS
Background
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The appellant appeals against the decision of First-tier Tribunal Judge K Swinnerton promulgated on 3 July 2019 (“the Decision”). By the Decision, the judge dismissed the appellant’s appeal against the respondent’s decision dated 3 September 2018, refusing her human rights claim.
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The appellant is a national of Vietnam. She first came to the United Kingdom as a student in April 2012 and returned to Vietnam in June 2012. She last entered the United Kingdom in January 2013 for the purposes of studying an English language course. In September 2013 she married a British citizen. In March 2015 she claimed asylum and this was refused in September 2015, but she was granted leave to remain until 14 March 2018 on the basis of her marriage. That marriage ended in divorce on 20 April 2017. The Appellant had a child with a man from a previous relationship born on 8 May 2017 and who died on 16 September 2017.
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On 26 February 2018 the appellant submitted an application for further leave to remain. It was the respondent’s refusal of this application that was the subject of the appeal before Judge Swinnerton. By the date of the appeal hearing, the appellant had given birth to her second child born on 13 April 2019. The respondent gave her consent for consideration of the child’s best interests to be dealt with at the hearing.
4. The appellant claimed that her removal would lead to separation from her current partner, who is from Iraq, and that she would be denied the right to visit her child’s grave who is buried in the United Kingdom thus violating her rights contrary to Article 8 ECHR.
5. The respondent refused the appellant’s human rights claim on the basis that it was not accepted there would be very significant obstacles to her integration on return to Vietnam and nor was there evidence of exceptional circumstances.
Decision of the First-tier Tribunal
6. The judge did not accept that the appellant was in a relationship with her claimed partner. He noted that there was “a clear discrepancy” in her evidence as to the period of claimed cohabitation; the partner had not provided a witness statement and nor did he attend the hearing.
7. The judge took into account the difficulties the appellant experienced with both pregnancies, but there was no medical evidence to demonstrate that there was any risk to the health of her child or that any treatment was required.
8. With respect to the effect of removal to Vietnam on the appellant and her child, the judge’s findings are set out at [22]-[23]. The grounds of appeal focus on these paragraphs of the Decision and therefore I set these out in full:
“22. In respect to the Appellant visiting the grave of her deceased son following his tragic death aged four months in September 2017, I heard evidence which I accept that the Appellant typically visits the grave of her deceased son once each week. I was referred briefly at the hearing to the case of Abbasi mentioned above. This related to a refusal of a visa to foreign nationals seeking to enter into the UK for a finite period for the purposes of mourning with family members the recent death of a close relative and visiting the grave of the deceased being capable of constituting a disproportionate interference with the rights of the persons concerned and Article 8 of the ECHR. It is also stated in the case of Abassi that whether Article 8 applies and, if so, is breached will depend upon the fact sensitive context of the particular case. In the present case, which does not relate to a finite period of time as did the Abbasi case, the Appellant's deceased son died almost two years ago having lived for four months and the Appellant has had the opportunity to mourn his loss and to visit his grave frequently during the last two years which she, understandably, continues to do. That passage of time, I fully accept, does not in any way mean that the mourning of the Appellant for the tragic loss of her son has ended. Were she to have to return to Vietnam, she would clearly be unable to attend the grave of her deceased son. That said, I do not find that this circumstance engages Article 8 and, even if it did, I do not find that the decision of the Respondent is disproportionate in this respect as although the Appellant would be prevented from being able to continue to visit and herself maintain the grave of her deceased son, that does not outweigh the public interest in maintaining immigration control.
23. There is a duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children in the United Kingdom. It is generally the case that it is in a child's best interest to remain with their parents. I have found that the Appellant lives with her son and not with her son and Mr Salem as a family unit. The family unit is the Appellant and her son and I was provided with little if any evidence of the claimed involvement of Mr Salem with the upbringing of his son. Surprisingly, the Appellant stated at the hearing that Mr Salem had claimed asylum but she was completely unaware of whether any decision had been made in respect of his claim. The Appellant has been in the UK for about six and a half years and, prior to coming to the UK, had lived all her life in Vietnam which included having worked in a pharmaceutical company for four to five years. With respect to the Appellant’s relationship with her family in Vietnam, at the hearing the Appellant gave evidence that she last had contact with her family in Vietnam in 2013 and that she feared her family, particularly her brother, as they would not approve of her having married a Muslim man. That was the basis of the asylum claim which was refused and I, similarly, am not persuaded by it. I see no reason why the Appellant cannot return to Vietnam with her child and continue her family life there which I find would be in the best interests of the child. I do not find that there is any need to consider Article 8 of the ECHR outside of the Immigration Rules.”
[emphasis as per the Decision]
9. The appellant applied for permission to appeal on 17 July 2019. The grounds of appeal are not drafted with particular clarity, but they can be summarised as follows: (i) the judge did not adequately consider and reason why Article 8 was not engaged by reference to the case of Abbasi (visits – bereavement – Article 8) [2015] UKUT 463 (IAC) and, (ii) the judge failed to adequately consider Section 55 and the best interests of the child.
10. Permission to appeal was granted by First-tier Tribunal Judge Lawrence on 10 March 2023. In his grant of permission Judge Lawrence stated as follows:
“I have been provided with a letter from London Law Chambers, dated 20 February 2023, in which it is stated that they applied for permission to appeal on 17 July 2019 and are still waiting for a response. Documents are attached to that letter that are described as ‘the relevant documents’ and include an unsigned application form, covering letter, and grounds of appeal. There is also a fax transmission report that appears to correspond with the assertion that an application for permission to appeal was made on 17 July 2019 and, while Tribunals Service staff have informed me that there is no record of such an application by the Appellant on the date in question, I proceed on the basis that the application was made in time on 17 July 2019 in the light of the evidence fax transmission and the statement that is made in the solicitors’ letter.”
11. In respect of the grounds of application Judge Lawrence considered that it was arguable that the judge failed to give adequate reasons for finding that preventing the appellant from visiting and maintaining her child's grave would not engage her rights under Article 8 ECHR, and that preventing her from doing so would not outweigh the public interest in maintaining immigration control. Permission was granted on all grounds.
12. The respondent filed a response on 30 March 2023. It incorrectly asserts that Judge Lawrence “appears to extend time” in granting permission, but nevertheless, it is argued that the grounds were a mere disagreement with the Decision and that Judge Swinnerton gave adequate reasons for dismissing the appeal.
13. On 19 April 2023 the appellant filed what is stated as being “amended (additional) grounds of appeal” drafted by Mr Mavrantonis. Therein reliance is placed on the initial grounds of appeal and an additional “discrete ground” as a consequence of a “4-year delay in considering the application for permission to appeal”. It is argued that the delay itself vitiates the Decision, and given the effluxion of...
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