Tribunal decisions

The decision

IAC-AH-KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/05032/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 January 2017
On 13 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

mr Muhammad Nawaz
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Karim, Counsel, instructed by Bukhari Chambers Solicitors
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Lal (the judge), promulgated on 7 July 2016, in which he dismissed the appeal on all grounds. That appeal had been against the Respondent's decision made on 15 January 2015, which had refused the Appellant leave to remain as a spouse of a British citizen, with reference to Appendix FM to the Immigration Rules.
2. Although the case was primarily about Article 8, an important aspect of this was an allegation by the Respondent that the Appellant had fraudulently obtained an English language test certificate from ETS back in 2012. The certificate had been used for a subsequent application for further leave, but not, however, the latest application made by the Appellant on 29 September 2014.

The judge's decision
3. It was agreed by the representatives before the judge that the relationship between the Appellant and his spouse was a genuine and subsisting one. The only live issue therefore was whether the ETS allegation could be made out, and the effect of this upon the suitability requirements under Appendix FM.
4. The judge's findings begin at paragraph 15 of his decision. He concludes that the Appellant had been dishonest in respect of obtaining the test certificate in 2012. This core finding is based on matters set out in paragraphs 16 to 20 to which I shall refer in more detail below.
5. At paragraph 21 the judge concludes that as a result of his adverse findings the Appellant's application fell foul of S-LTR.2.2 of Appendix FM. Thus the Appellant could not succeed on Article 8 within the context of the Rules. The judge then goes on to consider the Article 8 claim outside of the Rules and concludes that the Respondent's decision was proportionate. In particular the judge found that the Appellant's relationship with his wife was a "cynical attempt to bolster a claim that is already without merit".

The grounds of appeal and grant of permission
6. There are essentially three grounds. The first relates to the ETS issue. It contends that the judge has erred in failing to apply the guidance set out in SM and Qadir (ETS - evidence - burden of proof) [2016] UKUT 229 (IAC), and further errs in respect of his credibility assessment of the Appellant's evidence. Ground 2 relates to the assessment of Article 8 within the context of the Rules, and ground 3 relates to Article 8 outside of the Rules.
7. Permission was granted by Upper Tribunal Judge Rimington on 1 December 2016. It was her view that the judge's assessment of the ETA issue could not be criticised and that permission was to be refused on that particular point (see paragraph 2 of her decision). However, permission was granted on the basis that the judge had apparently failed to consider the position of the Appellant's spouse when considering Article 8.

The hearing before me
8. Prior to the hearing the Appellant's solicitors sent in a bundle of updated evidence and, more importantly, an application to renew and expand ground 1 of the original grounds of appeal. This related specifically to the ETS point upon which Upper Tribunal Judge Rimington had previously refused permission.
9. The renewed/expanded grounds sought to rely firstly on the original ground 1, but also on two additional points. The first of these is that the judge is said to have applied the wrong provision to the Appellant's case, namely S-LTR.2.2. This, it is said, was wrong because that provision related solely to whether false documents had been submitted in respect of the latest application, whereas in the Appellant's case the alleged false certificate related to an application made back in 2012 or 2013. Secondly the expanded grounds suggest that the judge was wrong in taking into account the Appellant's ability to speak English at the hearing. It is said that this runs contrary to the guidance set out in SM and Qadir with particular reference to paragraph 80 of that decision.
10. The new bundle had been received in advance by Mr Tarlow, and he was fully aware of its contents. Mr Tarlow formally opposed the application to renew and/or expand the grounds of appeal. He submitted that there was no merit in any of them.
11. Having considered this matter I gave permission for ground 1 to be argued before me and for that ground to be expanded in line with the grounds set out at pages 1 to 3 of the Appellant's new bundle.
12. I gave permission for the following reasons. First, in my view there was sufficient merit in the original ground 1 to render it arguable. Secondly, that there was again sufficient merit in the expanded grounds, in particular the two points I have mentioned previously, which rendered them arguable as well. Overall, there was enough there to warrant the granting of permission with reference to my powers under Rule 5(3)(c) of the Upper Tribunal Procedure Rules 2008 and the decision in Ferrer (limited appeal grounds; Alvi) [2012] UKUT 00304 (IAC).
13. Following this preliminary point, both representatives made their respective submissions.
14. Mr Karim submitted that the judge had erred in a number of respects. It was said that the judge has not engaged adequately with the Appellant's explanation in respect of the tests undertaken in 2012. He said that the judge had failed to give particular examples of what information the Appellant was unable to give, why that might have been so, and that he had ignored factors such as the passage of time.
15. It was submitted that the judge had failed to exercise caution when dealing with the oral evidence as was required by the guidance in SM and Qadir.
16. Mr Karim suggested that it was a material error for the judge to have applied S-LTR.2.2 when this clearly did not relate to the Appellant's case. Although an alternative under S-LTR.1.6 might have been applicable, it had not in fact been applied or indeed considered at all by the judge.
17. In respect of Article 8 Mr Karim relied on the grounds and submitted that there had been no consideration of the spouse, or indeed her son.
18. Mr Tarlow submitted that there were no errors in respect of the ETS issue. The findings were all open to the judge. He had in effect found that the Appellant's rebuttal evidence was simply not credible. If the application of S-LTR.2.2 was wrong this was immaterial as S-LTR.1.6 could have been applied instead.
19. In respect of the Article 8 point he accepted that there was an error and it would be an uphill struggle to argue that this error was not material. The judge had failed to deal in any detail with the Appellant's spouse, and at all in respect of the spouse's son from a previous relationship.

Decision on error of law
20. With some reservations, I conclude that the judge's decision does include material errors of law and must therefore be set aside. My reasons for this conclusion are as follows.
21. First, the judge has not referred to any of the relevant case law relating to the ETS issue. That in itself is not necessarily an error of course, but it gives rise to uncertainty as to the approach adopted by the judge. He did correctly identify that there was an evidential burden upon the Respondent in the first instance (see paragraph 16). The judge was certainly entitled to find that the generic materials adduced by the Respondent were sufficient to discharge that evidential burden. According to the guidance set out in SM and Qadir and other decisions, once the initial evidential burden is discharged the burden then shifts to the Appellant who must then provide what has been described as "an innocent explanation namely an account which satisfies the minimum level of plausibility" (see Muhandiramge (section S-LTR.1.7) [2015] UKUT 00675 (IAC), at paragraph 10). Unfortunately, the judge has not set out this threshold test, as it were, and it is therefore unclear as to whether the judge is in effect saying that the ultimate legal burden rested upon the Appellant or not.
22. Second, as a result of the above it is unclear as to what threshold the judge was considering when assessing the Appellant's explanation in rebuttal of the Respondent's allegation. The shifting of the burden to the Appellant only relates to the requirement to give an account which "satisfies the minimum level of plausibility", which is something less than an ultimate satisfaction of a legal burden on the balance of probabilities.
23. Third, I have sympathy for the judge in that it does appear he was unimpressed generally by the Appellant's oral evidence at the hearing: this much is clear from paragraphs 17 to 20. However, and again with some hesitation, I conclude that what the judge has failed to do is to provide sufficient detail, by way of examples, of: questions that the Appellant was in fact unable to answer adequately or at all; information that he was unable to provide that he reasonably should have provided; or any objectively verifiable evidence that contradicted his account of where the centre was, the format of the tests, and such like.
24. It may be that there were specific examples contained within the evidence as a whole, but none of these had been set out. The result is that that the reader of the decision struggles to identify the particular reasons why the judge concluded that the Appellant's evidence was "vague and evasive" in material respects.
25. Fourth, if the judge was relying upon an inability to give details about particular essays or particular questions in respect of the tests and/or previous studies, there does not appear to be any consideration of the passage of time given that the tests occurred some four years before the hearing and the undergraduate degree in Pakistan was undertaken longer ago than that.
26. Fifth, in paragraphs 17 and 18 the judge expresses "some doubt" as to whether the Appellant had ever studied in Pakistan or the United Kingdom, as claimed. However, there is no clear finding on these points. "Some doubt" does not equate to a finding that the Appellant was being untruthful, or that he had in effect produced false documents and/or made false representations to the Respondent about these studies previously.
27. Sixth, the judge clearly did place significant weight on the apparent inability of the Appellant to understand questions put to him at the hearing (see paragraph 19). The difficulty with this is that SM and Qadir strongly encourages real caution on the part of judges before undertaking any assessment of an ability to speak English at a hearing (see paragraph 80). It does not however prohibit such consideration. In this case the judge has made no reference to SM and Qadir, and has not as a matter of substance stated that he has exercised any caution before taking the ability to speak English at the hearing into account as being a relevant factor.
28. Seventh, with due respect to the judge, it is difficult to see why it was deemed to be so adverse to the Appellant that he contacted his solicitor when first told of the Respondent's refusal, rather than registering any "shock" with the ETS test centre.
29. Eighth, as far as I can see there was no evidence adduced by the Respondent at the hearing which went to contradict matters set out in paragraphs 10 to 11 of the decision, namely in respect of the when, where and what relating to the 2012 tests.
30. Taking all of the above into account, and with none of the points being individually decisive, I conclude that the judge's approach to the ETS issue is materially flawed and for that reason his decision must be set aside.
31. I would add that in respect of the application of S-LTR.2.2 of Appendix FM, there is also an error because in my view, on the natural and ordinary meaning of the words used, the use of false documents needs to relate to the application leading to the appeal before the First-tier Tribunal, rather than a previous application. However, it is clear enough to me that in any event S-LTR.1.6 could have applied in any event, so therefore the error would probably not have been material. This point does not need to be conclusively decided given my view of the judge's assessment of the ETS issue and credibility.
32. Turning to the Article 8 point briefly, it is clear that somewhat unfortunately the judge failed to engage adequately with the situation of the Appellant's spouse and, importantly, her son, the existence of whom was known to the Respondent and presumably the judge as well.
33. There is clearly a further material error of law here.
34. I also note that the Respondent herself had accepted that the Appellant's relationship with his wife was genuine and subsisting (see paragraph 14 of the refusal letter). Therefore what is said in paragraph 28 of the judge's decision appears to go behind an express concession of fact made by the Respondent.

Disposal
35. As a result of the material errors of law, this appeal must be remitted to the First-tier Tribunal for a complete rehearing. No findings of fact are to be preserved. The ETS issue and the Article 8 claim are both live, and I express no view on the ultimate prospects of success in this appeal.
36. Relevant directions to the parties and the Tribunal's administration are made, below.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of errors on points of law.
I set aside the decision of the First-tier Tribunal.
I remit the case to the First-tier Tribunal.

No anonymity direction is made.

Directions to the First-tier Tribunal
1. The appeal is remitted to the First-tier Tribunal with no preserved findings of fact;
2. The issues to be addressed at the remitted hearing are: the ETS allegation; Article 8 within the context of the Rules (including the position of the Appellant's spouse and her son); Article 8 outside the context of the Rules (including the position of the Appellant's spouse and her son).

Direction to the parties
3. Any further evidence relied on by either party must be served with the other side and filed with the First-tier Tribunal no later than 21 days before the remitted hearing (for the avoidance of doubt, the new evidence contained in the Appellant's latest bundle shall be served and filed in accordance with this timeframe);
4. The parties must comply with any further directions issued by the First-tier Tribunal.

Directions to administration
1. The appeal is remitted to the First-tier Tribunal for rehearing at the Hatton Cross hearing centre before a judge other than First-tier Tribunal Judge S Lal;
2. A new date shall be fixed by the Hatton Cross hearing centre itself;
3. There is a 2-hour time estimate for the remitted hearing.

Signed Date: 13 January 2017
Deputy Upper Tribunal Judge Norton-Taylor