Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05951/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20th December 2016
On 17th January 2017

Before

UPPER TRIBUNAL JUDGE KING TD

Between

mr Muhammad ansari
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Islam, Counsel instructed by E1 Solicitors
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant applied for leave to remain in the United Kingdom as a spouse of a person present and settled in the United Kingdom under Appendix FM of the Immigration Rules. That application was refused by a decision of 24th February 2015.
2. The decision itself is somewhat complicated considering the application from a number of perspectives. For example, it considers the five year partner route under paragraph R-LTRP.1.1.(a), (b) and (c) of Appendix FM. It also considered the ten year partner route and the ten year private life route under paragraph 276ADE(1) of the Rules.
3. In essence the application was refused because the appellant was not a national of a majority English speaking country and had not passed an English language test, nor did he have an academic qualification equivalent of a Bachelors or Masters Degree which was taught in English.
4. The appeal came before First-tier Tribunal Judge Lagunju on 3rd June 2016. The appellant had undertaken an ACCA and had produced details from the National Recognition Information Centre for the United Kingdom that such award is equivalent to a Bachelors Degree. An academic transcript was also provided. The narrow point at issue would seem to have been that the transcript did not confirm that the course was taught in English, neither was there any confirmation of the award. On that basis the appeal was dismissed.
5. The appeal against that decision was lodged on the basis that the judge had misunderstood or misapplied the Regulations, particularly those set out in E-ECP.4.1. of Appendix FM. The ACCA was clearly taught in English, therefore the appellant, it is said, satisfies all the requirements. Permission to appeal to the Upper Tribunal was granted on 14th November 2006.
6. Thus it is that the matter comes before me to determine the issue in dispute. It seems to me that the issue in dispute is a narrow one. I note the Secretary of State's response to the grounds of appeal, as set out under the letter of 29th November 2016, where it is argued that the evidential requirements under paragraph 31 of Appendix FM are mandatory. Such requires evidence of an academic qualification (recognised by UKNARIC to be equivalent to the standard of a Bachelor or Masters Degree in the United Kingdom (and was taught in English)) which must be either a certificate issued or an original academic reference or an original academic transcript.
7. Whatever form of document is used it must confirm that the qualification was taught in English.
8. At the hearing there has been produced the information from the National Recognition Information Centre confirming that the ACCA was equivalent to a Bachelors Degree. Indeed, it is now regarded as equivalent to a Masters Degree if further subjects were taken, which in this case they have. Thus a transcript was also produced showing the subjects and modules that were taken. Both indicate that the appellant has that qualification.
9. What the documents do not state is that the subject was taught in English. It is argued that that is a mandatory requirement in the Rules.
10. At the hearing the ACCA certificate was produced, together with a letter from the BPP University dated 18th August 2016 certifying the nature of the study and that the course was taught in English.
11. This appeal perhaps highlights an absurdity within the application of the Rules. It is acknowledged by all parties, particularly in the light of all the documentation received, that the ACCA met the level and standard required and that it was taught in English. However, the strict requirements of the Immigration Rules require that the documents. that are expected to establish the fact of the qualification must also on their face declare that it is taught in English.
12. The Home Office Presenting Officer confirmed that though the Rules require that particular statement, it was unlikely, in terms of any qualification taken in the United Kingdom, that any such statement if it was taught in English would be affixed either to the certificate or to the transcript. In other words, a strict application of the Rule served to defeat the application by the appellant under those Rules.
13. Mr Islam, on behalf of the appellant, invited me to consider that that was a ridiculous and unfair situation in which the appellant finds himself. It is understandable that if he had obtained a qualification abroad then it would be important for that qualification to be clearly confirmed on its face that it was taught in English. When that issue is in no doubt whatsoever for a qualification obtained in the United Kingdom, it was an absurd situation making it a mandatory requirement that the documents speak on their face to that effect. I was asked to find that the appellant has met all the conditions that were apparent, save for that technicality.
14. I bear in mind the decision of Mandalia [2015] UKSC 59. Although that is in relation to a points-based application of the Rules, it seems to me that justice does demand that the Rules be interpreted consistently and fairly. In this case there is no dispute whatsoever that the appellant holds a Bachelors or Masters Degree and that it was taught in English. Simply to apply the absolute letter of the Rule and Regulation, without having regard to the proper context in which it is to be applied, seems to me to be both unfair and not something that was intended to be the outcome.
15. In the circumstances, looking at the purpose of the Rule and the justification for the refusal as being ultimately technical rather than practical in its nature, I find the judge was in error in applying such a strict technical requirement to the application. In the circumstances, therefore, I shall set aside the decision held by the First-tier Tribunal Judge. I shall proceed to remake it finding that all relevant evidence that meets the purpose and intention of the Rule has been presented. In those circumstances the appeal under the Immigration Rules is allowed.

Notice of Decision
The appeal is allowed under the Immigration Rules.
No anonymity direction is made.

Signed Date 16 January 2017

Upper Tribunal Judge King TD