Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/13700/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16th September 2016
On 20th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mrs NITHYANANDHY KUMAR
(no ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr O'Brien, Counsel
For the Respondent: Ms Z Ahmad, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of India born on 10th April 1985. On 15th October 2012 the Appellant was granted entry clearance as a partner of a Tier 2 applicant. That leave expired on 21st November 2015. The Appellant entered the UK on 20th October 2012.
2. On 27th October 2015 the Appellant made a human rights application for leave to remain in the United Kingdom on the basis of her relationship with her partner Kumar Ranganathan. That application was refused by the Secretary of State on 10th December 2015.
3. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Rose sitting at Birmingham. In a decision and reasons promulgated on 20th February 2016 the Appellant's appeal was allowed on human rights grounds.
4. On 3rd March 2016 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. Those grounds noted that the case had been determined on the papers and that the Appellant had been refused further leave to remain by the Secretary of State as the spouse/partner of a person settled in the United Kingdom on the basis that the Appellant did not have a current English language qualification. The grounds noted that the First-tier Tribunal Judge had found that paragraph 34D of Appendix FM potentially applied to the Appellant in that the Secretary of State had not exercised discretion as to whether or not to accept the certificate which had been used as part of her entry clearance application. The judge then decided that the Appellant had met Appendix FM of the Rules. The Secretary of State contended that the First-tier Tribunal Judge should simply have remitted the matter to the Secretary of State and that the decision was not in accordance with the law for her to consider the exercise of discretion.
5. Further it was submitted that the First-tier Tribunal Judge had erred in the assessment of Article 8 outside the Rules given that the First-tier Tribunal Judge had found the Appellant met the requirements of Appendix FM there was therefore no need for any freestanding Article 8 assessment to be conducted.
6. On 2nd August Judge of the First-tier Tribunal Nicholson granted permission to appeal. Judge Nicholson acknowledged that the only issue under Appendix FM was whether the Appellant could rely on the IELTS English language test certificate that she had used successfully in connection with her original application for entry clearance as a spouse. He noted that although it was out of date, the Respondent had a discretion to accept it under Appendix FM-SE paragraph 32D. Permission was granted because the judge considered it was arguable that it was not open to the judge to exercise the discretion in the Respondent's place and accordingly it was arguable that the judge should not have found that the Appellant met the requirements of Appendix FM.
7. So far as the second part of the first ground was concerned, whilst it would have been open for the judge to find that the decision was not in accordance with the law because of a failure to exercise a discretion and remit the appeal to the Respondent prior to the introduction of the Immigration Act 2014, Judge Nicholson found that that option was not available to the judge in this case because the Appellant only had a right of appeal on human rights grounds. In practical terms he considered that it was unlikely to have made any difference to the decision because if the judge had found the decision did not meet the requirements of Appendix FM and had then gone on to consider the proportionality of the decision under Article 8 outside the Immigration Rules on that basis, it would have been open to the judge to find for the purposes of 117B(1) of the 2002 Act that the maintenance of immigration control did not count against the Appellant to any real extent in circumstances where the Respondent had failed to exercise a discretion and any proper application of that discretion would have led to the appeal being allowed under the Immigration Rules. Permission was consequently granted to appeal on Ground 1. It was however refused on Ground 2 because even if the judge had correctly found that the Appellant had met the requirements of Appendix FM there would have been nothing to prevent the judge from making an assessment of Article 8 outside of the Rules on the basis of that as well.
8. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by her instructed Counsel Mr O'Brien. The Secretary of State appears by her Home Office Presenting Officer Ms Ahmad. I note that this is an appeal by the Secretary of State. However for the continuity of reference to the parties throughout all proceedings Mrs Kumar is within this appeal referred to as the Appellant and the Secretary of State as the Respondent.
9. Mr O'Brien has produced a skeleton argument in support of opposition to the Secretary of State's appeal. I have given due and full consideration to this document which I also consider as effectively being the Appellant's Rule 24 response to the permission to appeal.
Submissions/Discussions
10. As set out above the issue is a very narrow one. Ms Ahmad points out that the judge had erred in her assessment and analysis at paragraph 32D of Appendix FM-SE. The judge had found at paragraph 13 of her decision that the decision maker "may" accept an English language certificate which is passed its validity date as being valid. There is, therefore, she had found a discretion in that regard. Ms Ahmad submits that that was where the judge erred in that the judge was not in a position to find that the Appellant met the Immigration Rules because discretion was not available to the Appellant. The discretion had to be exercised by the Secretary of State.
11. Mr O'Brien takes me to his skeleton argument. He submits that the First-tier Tribunal Judge was correct to conclude that the Appellant was not required to meet the English language requirements and consequently the judge was entitled to proceed on the basis that the Appellant satisfied the requirements of Appendix FM. However it is important to note the English language requirement paragraph E-LTRP.4.1 did not apply and that that is what the judge had found at paragraph 11 of her decision. He submits that the finding by the judge that the Appellant had had continuous leave as a partner since the Home Office accepted the test certificate as valid was in fact the end of the matter and that it was unnecessary for the judge to go on to consider the alternative requirements.
12. Thereafter Mr O'Brien goes on to submit, if I am not with him on that point, then it is necessary to consider whether or not the judge has effectively erred on her interpretation at paragraph 32D and that there are limited circumstances when an out-of-date test certificate could be granted. For reasons set out below it is not necessary to recite the submissions in great detail.
13. Ms Ahmad indicated she had no further submissions to make by way of response.
The Law
14. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
15. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings
16. The Appellant entered the UK in 2012 with valid entry clearance until November 2015 as the spouse of Kumar Ranganathan who works in the UK as a radiographer. The Appellant passed her IELTS test on 24th July 2012 and the Secretary of State contended that because that test pass preceded the application by more than two years the Appellant failed to meet the requirement. The First-tier Tribunal Judge found at paragraph 11 that the Appellant was not required to meet the English language requirement.
17. If the Secretary of State fails to overcome the contention that there was an error of law in that finding then the rest of the appeal falls away. Paragraph E-LTRP.4.1 sets out the basis on which the Appellant is not required to meet the English language requirement. It states:
"E-LTRP.4.1. If the applicant has not met the requirement in a previous application for leave as a partner or parent, the applicant must provide specified evidence that they-
(a) are a national of a majority English speaking country listed in paragraph GEN.1.6.;
(b) have passed an English language test in speaking and listening at a minimum of level A1 of the Common European Framework of Reference for Languages with a provider approved by the Secretary of State;
(c) have an academic qualification recognised by UK NARIC to be equivalent to the standard of a Bachelor's or Master's degree or PhD in the UK, which was taught in English; or
(d) are exempt from the English language requirement under paragraph E-LTRP.4.2.; unless paragraph EX.1. applies."
None of the exemptions in paragraph E-LTRP.4.2 apply in this instant case.
18. This issue has been addressed by the judge at paragraphs 10 to 12 of her decision. Those paragraphs set out the immigration history, consider paragraph E-LTRP.4.1, note paragraph 32D of Appendix FM-SE but conclude on a construction of paragraph E-LTRP.4.1 that the Appellant was not required to meet the English language requirement.
19. I acknowledge that I am not rehearing this matter but I am considering whether there was a material error of law in the decision of the First-tier Tribunal Judge. I agree with the submissions made by Mr O'Brien that the analysis carried out by the judge discloses no material error of law and that the Appellant has met the requirement in a previous application for leave as a partner and that the First-tier Tribunal Judge was entitled to find that the Appellant met the requirements of the Immigration Rules. Paragraph 32D of Appendix FM-SE provides that an out-of-date certificate may be accepted as valid provided the applicant has had continuous leave as a partner since the certificate was first accepted and the certificate has not been impugned for one of the reasons set out in paragraph 32C. I agree with the submission made by Mr O'Brien that provided those conditions are met on its true construction that paragraph 32D leaves the decision maker with no real discretion and that the Rules specify the circumstances under which an old certificate will not be accepted and makes clear the purpose which that Rule serves.
20. In such circumstances I agree with the point made by Mr O'Brien that having found at paragraph 12 that the certificate was valid it was not necessary for the judge to go on further but the fact remains that she did. That does not in any way taint her findings.
21. For all the above reasons the decision of the First-tier Tribunal discloses no material error of law and the appeal of the Secretary of State is dismissed and the decision of the First-tier Tribunal Judge is maintained.
Notice of Decision
22. The appeal of the Secretary of State is dismissed and the decision of the First-tier Tribunal Judge is maintained.
23. No anonymity direction was made and no application is made to vary that order.

Signed Date

Deputy Upper Tribunal Judge D N Harris 20th October 2016

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris 20th October 2016