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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005642
	First-tier Tribunal Nos: HU/50256/2022 IA/00416/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 17 February 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

 

Between

 

MR KARMA TSERING

(NO ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr A Slatter, Counsel

For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

 

Heard at Field House on 4 ^th February 2025

 

 

DECISION AND REASONS

1.               The appellant, a national of China, appeals, with permission, against the decision of First-tier Tribunal Judge Thorne promulgated on 2 October 2024 dismissing his appeal against a decision of the Secretary of State dated 10 January 2022 to refuse his application for leave to remain in the UK.

Background

2.               The appellant claims to have entered the UK in June 2007 by train. He applied for asylum in September 2008, that application was refused on 4 March 2009. He made further submissions on 17 May 2016 which were refused on 23 May 2016. On 30 January 2017 the appellant made a stateless leave application which was refused on 12 July 2018. A further application was made on this basis on 13 November 2018 and refused on 13 October 2020. On 18 January 2021 the appellant applied for leave to remain in the UK on the basis of his family life with his unmarried settled partner, Susan Sandra Alforque. The respondent refused that application on the basis that the appellant did not meet the immigration status requirement of Appendix FM and that he had not established that there were insurmountable obstacles to his family life with his partner continuing outside the UK in China in accordance with Appendix FM EX 1 (b)).

3.               First-tier Tribunal Judge Thorne dismissed the appellant's appeal. The judge rejected the appellant's claim that he is stateless finding:

"26. There is now no dispute that A was born in Tibet. It is a matter of fact beyond doubt that Tibet is part of the Peoples Republic of China and has been for decades. The general country evidence establishes that anyone born in Tibet is a citizen of China. Individuals born within the People's Republic of China automatically receive Chinese nationality at birth. There is no evidence that A has legally renounced his citizenship."

4.               The judge went on to note that there is no dispute that the appellant and his partner are in a genuine relationship. The judge considered the provisions of EX 1, taking into account the appellant's evidence and the CPIN as it relates to Tibet and found:

"37. In those circumstances (because A is a Buddhist follower of the Dalai lama) I conclude that there are "insurmountable obstacles" to him living in China and his family life continuing in China or there are "exceptional circumstances" which make it disproportionate to return him to China."

5.               The judge went on to find that the appellant had not demonstrated that there were insurmountable obstacles to his family life with his partner continuing in India [39] or in the Philippines [41]. The judge further found that the appellant had not shown that there were very significant obstacles to his integration in India or the Philippines and that he therefore did not meet the requirements of paragraph 276ADE of the Rules [58]. In an overarching Article 8 assessment, the judge found that the public interest outweighed the appellant's right to private and family life in the UK.

The grounds of appeal

6.               The Appellant applied for permission to appeal on the following grounds:

•     Paragraph 276ADE of the Immigration Rules -

o    It is contended that the judge erred in failing to determine whether there were 'very significant obstacles' to the appellant reintegrating into China for the purposes of paragraph 276 ADE (1)(vi) of the Immigration Rules. The judge determined the issue at paragraph 37 in terms of EX. 1(b) of Appendix FM and 'exceptional circumstances', but failed to consider the issue through the private life immigration rule. The section of the decision addressing paragraph 276ADE does not determine the issue, which, in light of the findings made earlier, was likely to have been resolved in the appellant's favour.

o    It is contended that the judge materially erred in determining the appellant's private life claim under the Immigration Rules on the basis of a return to India and the Philippines, as there was no evidence that the respondent could or would return the appellant to either country. The respondent's case was that the appellant could be returned to China only as that was the country of his citizenship.

•     Appendix FM EX 1

o    It is contended that the judge erred in determining issues that were beyond the scope of the agreed issues in the appeal. The respondent's review dated 4 July 2024, made clear that the issues were whether there were 'insurmountable obstacles' to family life continuing in China and whether there were 'very significant obstacles' to the appellant reintegrating in China. The judge found that there were insurmountable obstacles to the appellant and his partner continuing their family life in China in paragraphs 33-37 of the decision. It is submitted that the judge ought to have allowed the appeal in light of these findings given that the two issues under the Rules as agreed between the parties, were resolved in the appellant's favour.

o    It is contended that, whilst the appellant's partner is a Filipino citizen, the judge erred in determining the issue of insurmountable obstacles on the basis that there was no evidence that family life could not continue in India or The Philippines. The appellant was not a national of either country and did not have a valid travel document to enable him to travel outside the UK. There was no evidence that the appellant could obtain a travel document to enable him to travel to either India or the Philippines let alone to live there on any permanent basis. It is contended that, in these circumstances, it was a material error of law for the judge to place a burden of proof upon the appellant to prove a negative; that he would not be admitted to either country. There was no evidence that the appellant's partner would be admitted to live in India on a permanent basis.

7.               Permission to appeal was granted by First-tier Tribunal Judge Turner on 29 November 2024 on the basis that the grounds were arguable.

Decision on error of law

8.               There are two main grounds. The first is that the judge failed to make findings on a key issue in dispute in the appeal, that is whether the appellant met the requirements of paragraph 276ADE of the Immigration Rules. The second is that the judge erred in his consideration of EX 1 of Appendix FM as to whether there would be insurmountable obstacles to the appellant's family life continuing outside of the UK in that he considered whether such family life could be enjoyed in India and the Philippines in circumstances where this issue and prospect had not been raised by the respondent in the reasons for refusal letter or in the respondent's review, nor had it been identified as an issue for the Tribunal in the appeal skeleton argument.

9.               At the hearing Mr Tufan indicated that he could not resist the grounds as put forward. It was therefore agreed by both parties that the judge had erred in terms of the consideration of 'insurmountable obstacles' within EX 1 (b) at paragraphs 38 to 39 in relation to India and at paragraphs 40 to 41 in relation to the Philippines. It was agreed that the judge had erred in his consideration of 'very significant obstacles to integration' in the context of paragraph 276ADE (1)(vi) at paragraphs 57 to 62 in relation to India and the Philippines. It was agreed that these matters were not issues in dispute before the judge in light of the reasons for refusal letter, the ASA and the respondent's review where consideration paragraph 276 ADE (1(vi) and EX 1 of Appendix FM were in the context of a return to China.

10.           As clarified by the Upper Tribunal in TC (PS compliance, "issues-based" reasoning) [2023] UKUT 164 (IAC) and Lata (FtT: principle controversial issues) [2023] UKUT 163 (IAC), it is for the parties to identify the issues in dispute in the appeal leading to a focussed and effective First-tier Tribunal decision addressing those matters, and only those matters which need to be decided ( TC headnote 3). In this appeal the judge failed to focus on the skeleton argument and respondent's review, he did not set out the issues in dispute, as recommended by the Upper Tribunal in TC (headnote 4). This led to a lack of clarity in the judge's mind as to the issues in dispute between the parties.

11.           For the reasons set out above I set aside the judge's findings at paragraphs 38-62 and the conclusion that the appeal is dismissed.

12.           The judge's findings at paragraphs 24-37 were not challenged by the appellant. The respondent did not cross-appeal or challenge those findings. It was agreed at the hearing before me that these findings should stand and that I would remake the decision on the basis of these findings.

13.           I note that in paragraph 26-27 the judge found that the appellant was born in Tibet which is part of the People's Republic of China and would therefore be a national of China. For the reasons set out at paragraphs 34-36, the judge found at paragraph 37 that there are insurmountable obstacles to the appellant living in China and his family life continuing in China and that there are exceptional circumstances which make it disproportionate for him to return to China.

14.           In light of these findings I conclude that the appellant has established that there are 'insurmountable obstacles' to him continuing his family life in China with his partner as he would be unable to return there. Therefore the appellant has established that he meets the requirements of Appendix FM EX.1.

15.           Further, the judge did not specifically consider paragraph 276ADE in the context of China. However, it is clear from his findings at paragraphs 24 to 37 that he found that there would be very significant obstacles to the appellant reintegrating in China. I therefore find that the appellant has demonstrated that there are very significant obstacles to his reintegration in China within paragraph 276ADE (1)(vi).

16.           Taking into account the findings above, Article 8(1) is engaged, the Immigration Rules are met and there is no public interest in refusal so that the appellant's appeal succeeds ( TZ (Pakistan) and PG India [2018] EWCA Civ 1109) .

Notice of Decision

1.               The decision of First-tier Tribunal Judge involved an error of law and I set it aside. I remake the decision in light of the unchallenged findings at paragraphs 24-37 of the First-tier Tribunal decision by allowing it.

2.               The appellant's appeal is allowed.

A Grimes

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

12 February 2025