Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/01236/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
On 17 November 2016
On 21 November 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SAMAN KAMRAN
Respondent

For the Appellant: Mr M Matthews, Senior Home Office Presenting Officer
For the Respondent: Mr V Sharma, of Mathew Cohen Associates Ltd., Solicitors

DETERMINATION AND REASONS
1. Parties are as above, but the rest of this decision refers to them as they were in the FtT.
2. The appellant is a citizen of Pakistan, born 11th March 1970. She entered the UK on 14 February 2014 with leave as a "tier 1 partner" until 14th January 2016.
3. By application dated 5th May 2015 the appellant sought further leave as the spouse of a person present and settled in the UK.
4. In a decision dated 22 June 2015 the respondent refused that application. There was and remains one issue only. The appellant submitted a certificate in respect of the English language requirement from City and Guilds which did not appear in the immigration rules, appendix O, and which had not previously been accepted on a successful application for leave to remain as a partner.
5. In her grounds of appeal to the FtT, the appellant said that the qualification and test provider did appear in the approved list, and that the qualification was in any event at a higher level, and would have met the more stringent requirements "for a partner visa under appendix FM".
6. The City and Guilds certificate on which the appellant first relied was awarded on 15 March 2015. She obtained a further certificate from Trinity College London on 8 September 2015. Her solicitors sent a copy to the respondent on 1 October 2015 (the appeal hearing on 26 April 2016 having already been fixed) asking if the decision might be withdrawn.
7. The case proceeded to hearing before First-tier tribunal Judge Mozolowski on 26 April 2016. In her decision, promulgated on 1 June 2016, the judge found at paragraph 15 that the first certificate did not meet the requirements of the rules. She said that under section 85 (4) of the 2002 act she was entitled to admit further evidence. There was no challenge to the second certificate by the respondent, "except to say that the second test certificate should not be considered. There was no challenge that the second certificate would fail to meet the requirements of appendix O of the rules". The judge found that she was entitled to consider the second certificate, found that it did meet those requirements, and allowed the appeal.
8. The respondent sought permission to appeal to the UT. The grounds set out appendix O and its requirements in respect of certificates from Trinity College London, which are to be verified "using a unique reference number which should be stated in the application form". The grounds say that the appendix required the test certificate to be submitted with the application, and the reference number to be provided. While post-decision evidence could be taken into account, that evidence "must be viewed through the lens of any requirements of the rules".
9. On 4 October 2016 FtT Judge Ford granted permission, observing that it was "unfortunate that the presenting officer did not object to the certificate on the basis now stated", but it was arguable that there had been a material error of law.
10. Mr Matthews submitted that the grounds disclosed that the absence of the required certificate with the original application form was a defect which could not be cured by later obtaining a certificate. (He confirmed, in response to my enquiry, that on all information currently available there appeared to be nothing to prevent a further successful application being made, as the appellant now has the required certificate.)
11. Mr Sharma submitted that the judge was entitled to take account of the second certificate under section 85 (4), and that it had been provided to the respondent 7 months before the appeal hearing. The present objection had not been taken at the hearing, and the respondent should not be empowered to take the point now. In any event, the first certificate met the requirements on the list of approved tests. The second certificate met requirements at a higher level.
12. Mr Sharma also sought a "common sense" approach, saying that it has long been obvious that the appellant's case should succeed on its merits.
13. The rule 24 response by Mr Sharma takes a fall-back position based on article 8. Mr Sharma did not take the point in oral submissions; rightly so, as it was bound to fail, given the availability of a further application.
14. Mr Matthews in reply said that the list of approved test did not disclose that the original certificate met necessary requirements, nor that transitional provisions had that effect. The fact that a language qualification might be satisfactory at a higher level was irrelevant; the question was conformity with the requirements of the application made. The admissibility of evidence under section 85 (4) could not cure failure to comply with the rules on documents to be produced with an application. It was accepted that the points now argued had not been advanced at the stage they should have been, in the first-tier tribunal, but as they disclosed clear errors of law they should nevertheless be admitted.
15. I reserved my decision.
16. The approach of "common sense" is not one which can readily be integrated with the immigration rules. No doubt for good policy and practical reasons, those rules in many areas are highly detailed and prescriptive. Wide-ranging discretion to depart from rules cannot co-exist with such a scheme, and is not part of the jurisdiction of either the FtT or the UT.
17. That said, the appellant's application failed on a technical point only, and she has shown long ago that the substance of the rules could be met. That might not be enough of an answer if the point had been taken by the SSHD at first instance, but it is a good reason for not allowing an argument of legal error to be developed at a late stage of the proceedings.
18. The SSHD's grounds are based on a close reading of the decision after the event. They are rather coy about the point not having been put to the judge at the time. The point is not said to be such an obvious one that any judge should have taken it, unprompted, particularly when the respondent was represented, and may be presumed by a judge to have put all points on which she relied.
19. If the ground was not repelled on that basis, I see difficulty for the appellant in finding any other reason. Mr Sharma was unable to show that the first certificate was all that was required. The second certificate was not with the application. Admissibility of further evidence, no matter that the appellant always had the required level of English, and no matter that she soon obtained a satisfactory certificate, cannot prove that the evidence was with the application. It is that attachment, not the underlying substantive satisfaction of the rules, which was required.
20. As my decision was reserved, I declined to hear submissions on expenses at that stage. If the appellant seeks to take that matter further, written application should be made, with a copy to the respondent, to enable her also to make representations.
21. The determination of the First-tier Tribunal shall stand.
22. No anonymity direction has been requested or made.

18 November 2016
Upper Tribunal Judge Macleman