Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/00109/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 January 2018
On 17 January 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SAILA SOURIN
(Anonymity Direction Not Made)
Respondent
Representation:

For the Appellant: Ms A Everett, Senior Home Office Presenting Officer
For the Respondent: Ms K Reid (counsel) instructed by Visa Inn Immigration Specialists

DECISION AND REASONS

1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2. The Secretary of State for the Home Department brings this appeal but to avoid confusion the parties are referred to as they were in the First-tier Tribunal. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Lucas, promulgated on 5 April 2017 which allowed the Appellant's appeal to the limited extent that he found that the appellant used fraud or deception to pass an English language test. The Judge then remitted the appellant's application for leave to remain to the respondent for further consideration.

Background

3. The Appellant was born on 1 October 1986 and is a national of Bangladesh. On 14 December 2015 the Secretary of State refused the Appellant's application for leave to remain in the UK.

The Judge's Decision

4. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Lucas ("the Judge") allowed the appeal against the Respondent's decision. The Judge found that the appellant had not employed deception in an English Language test and remitted the application to the respondent for further consideration.

5. Grounds of appeal were lodged and on 6 October 2017 Judge Grimmett gave permission to appeal stating

It is arguable that the Judge erred in allowing the appeal in the absence of a finding of any compelling circumstances.

The Hearing

6. Before I heard submissions, both Ms Reid and Ms Everett told me that they agreed that the judge has fallen into error in relation to jurisdiction. The Judge's decision is quite clearly that the appellant meets the requirements of the immigration rules. The Judge focuses on the authenticity of an English language test certificate. The appellant's application was submitted on 27 May 2015. The respondent's decision is dated 14 December 2015. As the application was submitted after April 2015 the only competent appeal is on article 8 ECHR grounds.

7. (a) Ms Everett moved the grounds of appeal. She told me that the Judge misdirected himself in assessing the appellant's claim on the basis that the appellant could speak English fluently. She relied on MA Nigeria [2016] UKUT 450. She told me that the Judge sets out inadequate reasons for finding that the appellant did not use a proxy test taker. She told me that the Judge did not have the power to remit the case to the Secretary of State for further determination.

(b) Ms Everett told me that the Judge's consideration of the article 8 ECHR grounds is incomplete. After listening to Ms Reid's submissions, Ms Everett agreed that if I find that the Judge's findings in relation to the English language test are sustainable, then the appellant meets the requirements of paragraph 276B of the immigration rules, but repeated a challenge to the adequacy of the Judge's reasoning.

8. (a) For the appellant Ms Reid told me that although it was an error to allow the appeal under the immigration rules, that is not a material error of law because the decision that the appellant meets the immigration rules in this case equates to a decision that the appellant succeeds on article 8 ECHR grounds. She told me that the Judge gave sustainable reasons for finding that the appellant did not engage in fraud to obtain an English language test certificate. She told me that between [24] and [28] the Judge sets out adequate reasons for finding that the appellant took, but failed, a TOEIC Test. She adopted the terms of the rule 24 response for the appellant.

(b) Ms Reid told me that the Judge's finding that the appellant meets the immigration rules is sustainable. She told me that if I preserve the Judge's findings in relation to the immigration rules then the appellant must succeed because she meets paragraph 276B of the immigration rules, and so by analogy her article 8 ECHR appeal must succeed.

Analysis

9. In SM and Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT 00229 (IAC) the Upper Tribunal held that

(i) The Secretary of State's generic evidence, combined with her evidence particular to these two appellants, sufficed to discharge the evidential burden of proving that their TOEIC certificates had been procured by dishonesty.

(ii) However, given the multiple frailties from which this generic evidence was considered to suffer and, in the light of the evidence adduced by the appellants, the Secretary of State failed to discharge the legal burden of proving dishonesty on their part.

10. In that decision the Upper Tribunal added that "every case belonging to the ETS/TOEIC stable will invariably be fact sensitive. To this we add that every appeal will be determined on the basis of the evidence adduced by the parties". In Qadir [2016] EWCA Civ 1167 the Court upheld the Upper Tribunal's consideration of the expert evidence and said that the Upper Tribunal was entitled to reach its conclusions on the English language abilities of the Claimants based on the evidence before them.

11. In MA (ETS - TOEIC testing) [2016] UKUT 00450(IAC) the Upper Tribunal held

(i) The question of whether a person engaged in fraud in procuring a TOEIC English language proficiency qualification will invariably be intrinsically fact sensitive.

(ii) Per curiam: where the voice data generated by TOEIC testing are those of a person other than the person claiming to have undergone the tests, there is no breach of EU or UK data protection laws.

12. The Judge's findings of fact start at [22] of the decision. At [24] the Judge notes that the appellant is almost fluent in English. At [26] the Judge finds that the appellant obtained an IELTS certificate in Bangladesh before coming to the UK. At [27] the Judge places weight on the appellant's account of her journey to the test centre and the timings of her test. The Judge records that that evidence is unchallenged.

13. At [28] the Judge balances the evidence for the appellant against the generic evidence (detailed at [23]) offered by the respondent, & bemoans the lack of voice recording evidence of the test results.

14. The Judge accurately recorded the evidence that was placed before him. It is the Judge's duty to make findings of fact from that evidence - and that is what the Judge has done. In reality, the first 13 paragraphs of the grounds of appeal are complaints about the weight that the Judge has given to the various strands of evidence. In Green (Article 8 - new rules) [2013] UKUT 254 (IAC) the Tribunal said that "Giving weight to a factor one way or another is for the fact finding Tribunal and the assignment of weight will rarely give rise to an error of law".

15. The Judge was clearly impressed with the evidence of the appellant. He is entitled to find that that evidence was sufficient to demonstrate that fraud had not been employed. The Judge's findings and analysis of the evidence between [23] and [29] lead the Judge to the conclusion at [31] that the appellant did use fraud to obtain an English-language certificate in 2011. At [31] the Judge manifestly applies the correct standard of proof.

16. The Judge's error is at [32] of the decision. Because the appellant's application was submitted on 27 May 2015 the only competent appeal lay on article 8 ECHR grounds. The Judge did not have jurisdiction to remit this case to the respondent for further consideration. That is a material error of law.

17. Because the decision is tainted by material error of law I must set it aside, however I have found that there is nothing wrong with the Judge's fact-finding exercise. The error lies in his disposal of the case. I therefore preserve the Judge's findings of fact and go on to substitute my own decision.

18. The appellant entered the UK on 21 June 2005 as a student. Leave to remain was extended until 29 October 2012. On 4 April 2012 the appellant applied for a tier 1 post study Visa, and the respondent granted leave to remain until 30 August 2014. On 28 August 2014 the appellant applied for leave to remain as the spouse of a settled person. Whilst the respondent was considering that application the appellant's marriage broke down. The appellant varied the application to an application for indefinite leave to remain on the basis of 10 years residence in the UK.

19. The respondent refused the appellant's application on 14 December 2015. The respondent considered paragraph 276B of the immigration rules, and, believing that the appellant had used a fraudulently obtained English language test certificate, decided that the appellant could not meet sub-paragraphs (ii) &(iii) of paragraph 322(5) of the immigration rules. The only challenge to the appellant's suitability was the belief that she had fraudulently obtained a TOEIC certificate.

20. The Judge's finding that the appellant had not used fraud in an English language tests stand. That finding undermines the respondent's decision. Because the appellant did not employ fraud, she meets all of the requirements of paragraph 276B of the immigration rules.

21. The only competent ground of appeal in this case it is an appeal on article 8 ECHR grounds. It is article 8 private life which is relevant in this appeal.

22. The respondent's position is that all article 8 ECHR considerations are embraced by the Immigration Rules. The fact that I find that the appellant meets the requirements of the immigration rules indicates that if the respondent had not acted in the mistaken belief that the appellant had employed deception in 2011, this application would have been successful. That is an indication that the respondent has a willingness to grant indefinite leave to remain to the appellant. The refusal of leave to remain must therefore be a disproportionate breach of the right to respect for private life. The respondent's own rules indicate that the decision is a disproportionate interference with the right to respect for private life.

23. In Agyarko v SSHD [2017] UKSC 11 The Supreme Court held that the Immigration Rules are compatible with article 8 ECHR, as this provision requires there to be a fair balance struck between competing public and individual interests involved, applying a proportionality test, and the policies adopted by the Secretary of State are within the margin of appreciation. The respondent's own rules indicate that the decision is a disproportionate interference with the right to respect for private life.

24. On the facts as I find them to be, the appellant meets the requirements of the Immigration Rules. On any reasonable and proper application of the Secretary of State's own policy, it cannot be said that the interests of immigration control require that leave to remain should be refused. When I weigh all of these matters I find that the respondent's decision is a disproportionate interference with the appellant's private life.

25. I therefore find that this appeal succeeds on article 8 ECHR grounds.

CONCLUSION
26. The decision of the First-tier Tribunal promulgated on 5 April 2017 is tainted by a material error of law. I set it aside.
27. I substitute my own decision.
28. The appeal is allowed on article 8 ECHR grounds.

Signed Paul Doyle Date 9 January 2017
Deputy Upper Tribunal Judge Doyle