Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/06994/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 September 2016
On 05 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

K B P
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Karim, Counsel,
For the Respondent: Mr Clarke, Home Office Presenting Officer

DECISION AND REASONS
1. This matter comes before me for consideration as to whether or not there are material errors of law in the determination of First-tier Tribunal Judge N J Bennett ("FTTJ Bennett") promulgated on 18 March 2016.
2. For ease of reference and continuity, I maintain the descriptions of the parties as appellant and respondent, as set out in FTTJ Bennett's decision, although both parties have been granted permission to appeal.
3. No anonymity direction was made in the First-tier Tribunal but I consider an anonymity order is appropriate given the allegation of dishonesty and make one accordingly.
Background
4. The appellant applied on 2 April 2011 for leave to remain as a Tier 4 (General) Student together with her dependent partner. She did so following a successful appeal on 8 March 2013 against an earlier refusal by the respondent to grant further leave to remain as a Tier 4 (General) student. That appeal was decided by FTTJ Elson in a determination promulgated on 15 March 2013. FTTJ Elson decided that the respondent's decision was outstanding for a lawful decision to be made by the respondent. The respondent refused the application, for a second time, on 22 January 2015. She did so pursuant to Appendix FM and paragraph 276ADE and on the grounds that there were no exceptional circumstances. The respondent decided to remove the appellant pursuant to s10 of the Immigration and Asylum Act 1999, having decided the appellant had obtained her ETS certificates through deception.
5. The appellant's appeal was heard by FTTJ Bennett on 18 February 2016. He took into account the previous determination of FTTJ Elson. FTTJ Bennett allowed the appellant's appeal on the grounds that the s10 decision was not in accordance with the law, but dismissed the appeal under the Immigration Rules and on human rights grounds.
6. Both parties sought permission to appeal and both were granted permission to appeal by Judge of the First-tier Tribunal Hollingworth on 12 August 2015, albeit the reasons for the grants of permission are not identified.
Submissions
7. Mr Karim and Mr Clarke agreed that the issues for me to decide could be summarised as follows:
a. The respondent challenged the FTTJ's conclusion that the appellant's ETS certificate had not been false or fraudulently obtained. She relied on the fact that witness statements by Rebecca Collings and Peter Millington had been provided at the hearing, contrary to the FTTJ's finding that no such statements had been provided. Thus the decision to remove the appellant pursuant to s10 had been lawful.
b. The appellant's challenge was twofold: first, that the appellant had demonstrated academic progress by way of evidence adduced at the hearing and, alternatively, that FTTJ Elson's determination was such that the respondent had failed in her duty to communicate with the appellant or with her college to seek further clarification as to academic progress.
8. Mr Clarke accepted, however, that the respondent was in some difficulty with regard to the respondent's ground of appeal: whilst the FTTJ had failed to take into account the witness statements of Ms Collings and Mr Millington which, it was agreed, had been handed to the FTTJ by the Home Office Presenting Officer (HOPO) and had failed to take into account the HOPO had relied in her submissions on the reasons for refusal letter, the HOPO had not cross-examined the appellant on her evidence as to how she obtained the ETS certificates. He accepted that the respondent was in difficulty therefore, given the guidance in SM and Qadir v SSHD (ETS - Evidence - Burden of Proof) [2016] UKUT 00229 (IAC) that an innocent explanation could be sufficient to rebut the respondent's case on the generic evidence. That explanation had been offered by the appellant and had not been challenged by the respondent at the hearing.
9. In support of the appellant's appeal, Mr Karim relied on Pokhriyal v SSHD [2013] EWCA Civ 1568, paragraph 54 (iii) and (iv). He noted that FTTJ Bennett had dismissed the appeal for lack of evidence of academic progress but the Court of Appeal in Pokhriyal had concluded that mere production of a CAS created a presumption that the proposed course represented academic progress. Whether there was academic progress was a matter for the college, not for the respondent or the tribunal. There was no allegation the CAS was fraudulently obtained. Further, the appellant's CAS provided justification for attendance on a complementary course at the same or lower level as the previous course.
10. Mr Karim submitted, in the alternative, that FTTJ Elson had quashed the respondent's earlier decision such that the respondent should have contacted the appellant or the college for clarification as to academic progress, in accordance with her evidential flexibility policy and/or paragraph 245AA. FTTJ Bennett had misunderstood the scope of the earlier determination and its legal effect, ie the direction of the previous FTTJ. Mr Karim referred me to the four gateways in Paragraph 245AA citing (b)(iv) as that which should have been applied in the appellant's case.
11. Mr Clarke noted that, according to the CAS, the appellant's course was at the same level; it was not at a higher level. There was nothing in the Rules which provided that a lower qualification would allow the applicant to meet the Rules. If it were the same level, justification could be provided if it was a complementary course. This was not the case here. This was an issue which had been addressed in the earlier determination of FTTJ Elson. Pokhriyal would apply if the CAS were blank; that was not the case here because the CAS explained the justification for the appellant's seeking to attend a course at a lower level. Mr Clarke submitted there was no requirement on the respondent, as a result of FTTJ Elson's determination, to contact either the appellant or the college to seek evidence of academic progress. Paragraph 245AA, which now addresses the respondent's obligations pursuant to the former flexibility policy, did not assist. FTTJ Elson had not made a direction that the respondent should take certain steps, [27] referred. The college could have stated in the CAS that the course was complementary but had not done so. As regards the decision to remove, Mr Clarke accepted that, if the respondent were wrong about the ETS decision, the decision to remove under s10 was unlawful.
Discussion
12. FTTJ Bennett erred in stating that the HOPO "did not seek to persuade" him that the ETS language certificate was false: he earlier refers at [21] to the HOPO relying, in her oral submissions, on the reasons for refusal and they, in turn, state the respondent's position that the ETS certificates were obtained fraudulently. FTTJ Bennett also refers to not having been provided with the statements of Ms Collings and Mr Millington whereas it is agreed by the parties that these were provided to him. However, I note that the appellant set out in her witness statement her evidence as to how she obtained her ETS certificates. Before me, Mr Clarke accepted the appellant was not cross-examined on this evidence. I find therefore that the appellant's explanation as to how she obtained her ETS certificates was not challenged before FTTJ Bennett and that it was open to him, on the evidence before him, to find that the appellant's ETS certificates were not false or fraudulently obtained [25] (SM & Qadir). Mr Clarke conceded as much before me. Thus FTTJ Bennett's inaccurate references to the HOPO's submissions and the evidence before him had no material impact on his decision as to the reliability of the ETS certificates, which was sustainable on the evidence.
13. Mr Clarke also conceded that if FTTJ's Bennett's decision on the ETS issue were sustainable on the evidence and there were no error of law in relation to it, the respondent's decision to remove the appellant under s10 was not in accordance with the law. I agree. For that reason, FTTJ Bennett's decision on this issue must stand and the respondent's appeal to this tribunal fails.
14. I turn to the appellant's appeal before me and Mr Karim's primary submission to the effect that FTTJ Bennett failed to take into account the guidance in Pokhriyal (a judgment which was handed down after FTTJ Elson's determination was promulgated).
15. Pokhriyal is a decision arising from circumstances similar to those of this appellant in that the appellant in Pokhriyal had produced a CAS for a proposed course at a similar level to the previous one and there was no explicit contemporaneous evidence that the proposed course amounted to academic progress. At [46] in Pokhriyal, it is stated "Paragraph 120B of Appendix A makes it clear that it is for the college, not the Secretary of State, to carry out the assessment" of academic progress. At [47]: "in the ordinary way the Secretary of State cannot go behind the college's assessment of academic progress. ? different considerations might arise if, for example, there were fraud, or if the college made an assessment which was plainly inappropriate on the face of the documents. It would be better to leave further consideration of such situations to a case in which they arise." At [49], Jackson LJ refers to the respondent's guidance at the time, published for the assistance of foreign students coming to the UK. This has application here, because this appellant made her application on 2 April 2011. Paragraph 63 of the guidance informs the student that if a college issues a CAS it has concluded that the proposed course constitutes academic progress. Jackson LJ states at [51] that "the mere issue of a CAS creates a presumption or expectation that the stated course constitutes academic progress ? what paragraph 120B of Appendix A requires is confirmation of that which is presumed or expected to be the case". Jackson LJ states at [52] that "it is no doubt convenient for the college to include the confirmation of academic progress in the CAS, but this is not obligatory". Relying on Jackson LJ's guidance in Pokhriyal, summarised at [54], I find that the CAS assigned to this appellant was sufficient evidence of her academic progress and it follows that the decision of FTTJ Bennett contains an error of law in that, it having been identified by FTTJ Elson that the appellant needed to demonstrate academic progress, FTTJ Bennett should have had regard to the subsequent guidance in Pokhriyal and found that the CAS assigned to the appellant was sufficient for that purpose. Having said that, this error of law makes no difference to the outcome because FTTJ Bennett allowed the appeal in any event.
16. For these reasons I find there is no material error of law in the decision of FTTJ Bennett. His decision stands.
Decision
17. The making of the decision of the First-tier Tribunal did not involve the making of a material error of law, for the reasons set out above.
18. The decision of the First-tier Tribunal is upheld.

A M Black

Deputy Upper Tribunal Judge Dated: 4 October 2016

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

A M Black

Deputy Upper Tribunal Judge Dated: 4 October 2016