United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: IA/24836/2015

ia/24839/2015

ia/24841/2015

IA/24842/2015

 

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 27 th October 2017 and Given extempore. Signed and sent to promulgation On 8 th November 2017	On 9 th November 2017

 

 

Before

 

Upper Tribunal Judge Chalkley

 

 

Between

 

Thi [T]

[A H]

Giang [H]

[O H]

(ANONYMITY DIRECTION not made)

Appellants

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellants: Miss K Anifowoshe of Counsel, Raj Law Solicitors

For the Respondent: Mr P Duffy, Home Office Presenting Officer

 

 

DECISION AND REASONS

 

1. The appellants are citizens of Vietnam and the first and second applicants are the parents of the third and fourth applicants. They were born, respectively on 17 ^th April 1982, 13 ^th July 1979, [ ] 2009 and [ ] 2012.

 

Immigration History

 

2. On 22 ^nd June 2015, the respondent refused the appellants' applications for leave to remain in the United Kingdom on human rights grounds. The appellants appealed and their appeals were heard at Hatton Cross on 25 ^th October 2016, by First-tier Tribunal Judge Mailer.

 

3. The first appellant arrived in the United Kingdom on 5 ^th July 2008, with entry clearance as a Tier 4 (General) Student valid from 30 ^th June 2008, until 30 ^th August 2009. Leave was subsequently extended from 22 ^nd September 2009 until 1 ^st April 2011. She met her partner the second named appellant in the United Kingdom in July 2009 and the third appellant was born in the United Kingdom on 21 ^st March 2009.

 

4. The first named appellant made application for leave to remain on human rights grounds with the third appellant listed as a dependant. The application was dated 4 ^th March 2011 and was refused by the respondent on 9 ^th May 2011. On 11 ^th August 2011 their appeals were allowed on human rights grounds. As a result, on 17 ^th April 2012, the first and third appellants were granted discretionary leave to remain in the United Kingdom until 1 ^st February 2013.

 

5. On 23 ^rd November 2014 the fourth appellant was born in the United Kingdom. The first appellant made application on 6 ^th February 2013, for leave to remain in the United Kingdom on human rights grounds with her two sons as dependants. This was refused by the respondent and a Section 47 notice was served on 18 ^th June 2013. Her appeal against that decision was only allowed on Section 47 grounds. On 31 ^st October 2013, her appeal rights were exhausted.

 

6. On 1 ^st September 2014, the appellants made a joint application for leave to remain on human rights grounds and that was refused without a right of appeal on 28 ^th October 2014. Following a pre-action protocol letter the respondent undertook to review the decision and subsequently issued a further refusal letter dated 25 ^th June 2015, which was the subject of the appellant's appeal to the First-tier Tribunal.

 

7. The second named appellant entered the United Kingdom with entry clearance as a work permit holder on 5 ^th June 2004. On 14 ^th April 2011, he was served with IS151A Part 2 as an illegal entrant following his admission that he had paid an agent to obtain a passport and false visa to gain entry to the United Kingdom. He was detained, subsequently released and made an asylum application. His appeal against refusal was dismissed on 11 ^th June 2013. His application for leave to appeal was refused and he became appeal rights exhausted on 16 ^th July,2013.

 

 

Hearing before the First Tier Tribunal Judge

8. The judge heard evidence from the first named appellant and considered a letter from the first named appellant's 'adoptive' parents in France. Whether, in fact the first named appellant was legally adopted in France is not known, but from an early age she was taken under their wing and visited regularly by them and also supported financially from time to time by them.

 

9. The judge noted that the third named appellant was now 7 years of age and a qualifying child in Section 117D of the 2002 Nationality, Immigration and Asylum Act. The judge considered the Court of Appeal's decision in MA (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 450 and in EV Philippines v Secretary of State for the Home Department [2014] EWCA Civ 874. He considered the best interests of the children and at paragraph 117 said this

 

"in the circumstances, I do not find that there are strong or powerful reasons why it would not be reasonable or proportionate for [AH] to be removed together with his parents if their removal is proportionate."

 

That sentence was challenged by the appellants and, as Upper Tribunal Judge Smith said in granting leave to appeal,

 

"it may be that his use of multiple negatives in the sentence which renders its meaning opaque, however, on my reading of it that is requiring that there be strong or powerful reasons why the child should not be removed rather than assuming a default position that the child should not be removed and requiring there to be strong or powerful reasons why he should be."

 

Hearing before me.

 

10. Before me today Mr Duffy accepted that there was an error of law in the judge's decision. Counsel on behalf of the appellants accepted that there were no other errors in the judge's decision. Mr Duffy, quite correctly in my view, accepted that the appeal should be allowed outright and I am happy to do that.

 

11. The appellant's appeals are allowed.

 

Notice of Decision

 

The appeal is allowed.

 

Upper Tribunal Judge Chalkley

Richard Chalkley

 

TO THE RESPONDENT

FEE AWARD

 

As I have allowed the appeal I have decided to make a fee award of any fee which has been paid or may be payable (adjusted where full award not justified) for the following reason. The appeal is allowed.

 

Upper Tribunal Judge Chalkley

Richard Chalkley