Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: HU/02991/2015
HU/02993/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 February 2017
On 14 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

Mrs Bas Bibi Zadran
Master Aryan Zadran
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

ENTRY CLEARANCE OFFICER – ISLAMABAD
Respondent

Representation:
For the Appellants: Mr B Singh, Counsel, instructed by Lincolns Law Solicitors
For the Respondent: Mr P Armstrong, Senior Presenting Officer

DECISION AND REASONS
1. The first Appellant, date of birth 11 April 1991 and an Afghan national, the second Appellant is her son, born 11 December 2014, appealed against decisions of the ECO refusing entry clearance. Their appeals came before First-tier Tribunal Judge A M S Green, who on 27 July 2016 dismissed their appeals under the Immigration Rules and it would seem with reference to human rights grounds. Permission to appeal that decision was given by First-tier Tribunal Judge Keane on 4 January 2017. At the hearing before me it was identified that there was an error of law made by the First-tier Tribunal Judge arising from misinformation which had been given to both the Secretary of State on behalf of the ECO and to the judge. The key to the matter was whether or not the first Appellant had taken and passed English language tests.
2. The judge at paragraph 15 of the decision considered the matter and ultimately took the view that the Appellants had failed to show they met all the requirements of the Immigration Rules but in particular solely relating to the English language testing that had taken place. By letter a long time after the matter was before the judge the City & Guilds Group wrote to the Appellants’ solicitors by letter of 31 October 2016 confirming that there had been mistakes in their system which had led to them misrecording matters. This had given rise to the misunderstanding and error of fact that the first Appellant had not properly undertaken the tests. The error was communicated to the Respondent on or about 31 January 2017. A Ms Isherwood, a Senior Executive Officer in the Specialist Appeals Team, raised the issue and confirmed that she had checked with the examination board, City & Guilds, who had confirmed that the fault in the numbering on the first Appellant’s English language certificates was due to a persistent fault of the City & Guilds system and therefore it was not, as had been thought or doubted, unreliable documentation.
3. I was therefore asked whether I would consider the admission of the material in and under the provisions of paragraph 15(2)(a) of the Upper Tribunal Rules 2008 and to have regard to it notwithstanding the delay. In particular I emphasise that the City & Guilds material does not for one minute suggest any fault on the part of the Secretary of State or any misunderstanding which arose other than through their certification.
4. I am therefore satisfied that the judge was misled by misinformation and in the circumstances would not, had he known of the true position, have concluded that there was a material failure by the Appellant to meet each requirement of the Rules.
5. I therefore invited submissions as to whether or not I should redetermine the matter or invite the First-tier Tribunal to reconsider the matter. In the light of the representations made by both parties I was satisfied that the proper, expeditious, cost-effective means was for this matter to be remade by me in the Upper Tribunal today.
6. In the light of the circumstances which are not otherwise challenged by way of the conclusions reached by the judge I am satisfied that the first Appellant had taken the necessary tests, had obtained the appropriate outcomes and in the circumstances there was compliance with the Immigration Rules.
NOTICE OF DECISION
The original Tribunal’s decision does not stand. The following decision is substituted. The appeal of the first Appellant is allowed and it follows that the appeal of the second Appellant is also allowed.
ANONYMITY
No anonymity order was made and none is sought.

Signed Date 10 March 2017

Deputy Upper Tribunal Judge Davey

TO THE RESPONDENT
FEE AWARD
The appeal has been allowed but it was originally dismissed on the basis of material which certainly is not the fault of the Respondent and material which has to a degree be obtained somewhat late in the day but be that as it may, making no criticism of the Appellants’ representatives, I am satisfied that this is not an appropriate case to make a fee award.

Signed Date

Deputy Upper Tribunal Judge Davey