Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09131/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 29 November 2013
On 24 December 2013

Before

THE HON. MR JUSTICE MCCLOSKEY
SITTING AS A JUDGE OF THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE DAWSON

Between

miss roka
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Burrett, Counsel instructed by AKL Solicitors
For the Respondent: Mr P Deller, Home Office Presenting Officer

DETERMINATION AND REASONS
1. On 29 August 2013 a decision and directions by Upper Tribunal Judge Dawson were sent to the parties. These were in the following terms:
“1. The Secretary of State appeals with permission the decision of First-tier Tribunal Judge P Hollingworth who allowed the appeal by the claimant (the appellant before the First-tier Tribunal) against the decision of 13 March 2013 refusing her leave to remain on the basis of family life with her husband, a British citizen.
2. The application for such leave dated 30 August 2012 was refused because she had not provided evidence that she had achieved a qualification in English speaking and listening at minimum of level A1 of the Common European Framework of Reference for Languages or that she otherwise met the English language requirement in E-LTRP.4.1 with none of the exemptions in E-LTRP.4.2 applying in her case.
3. The appellant had requested the case to be decided on the papers and on that basis it came before the judge who in the briefest of determinations allowed the appeal. His reasons (specific to the grounds of refusal) were at [4] as follows:
‘The solicitors acting for the appellant have submitted a bundle which includes the necessary English language certificate. The date on which this was obtained precedes the refusal. Some difficulty appears to have arisen in relation to the certificate having been missing. The solicitors have explained the position that it was sent’.
4. The judge then went on to explain that he accepted the explanation, that the Rules had been met and allowed the appeal.
5. The complaint made in the application for permission to appeal was that the judge had come to the wrong conclusion. He had not made any findings on the scores the appellant achieved in her English test nor had he made a finding on whether the test provider was on the approved Home Office list.
6. Mr Singarajah sought to defend the determination based on the judge having addressed the issues he was required to determine. At the hearing I announced my decision that the judge had erred in law in failing to give any reasons why he considered the appellant had met the requirements of the relevant Immigration Rule.
7. As to the materiality of that error, initially Mr Parkinson indicated that the test certificate (being part of the documentation submitted after the application had been made but before the decision reached) indicated that the appellant had met the criteria but his concern was that Edexcel was not on the list of approved test providers.
8. At the resumed hearing (following the lunch adjournment), Mr Parkinson explained that he accepted Edexcel was part of Pearson, an approved provider however the certificates produced by the appellant were not in one of the categories listed under Pearson in the Home Office list of providers. I considered the error therefore to be material and that the decision required to be re-made observing in addition that in any event the judge did not address the lawfulness of decision to remove the appellant which had been made contemporaneously with a decision refusing further leave to remain.
9. Mr Parkinson clarified that the sole issue the claimant was required to meet was the English language requirement and if she were able to produce any certificate from the list of providers at the required level she would meet the requirements of the Rules.
10. I confirmed that the claimant was entitled to rely on Article 8 grounds as these had been raised before the First-tier Tribunal. Any documentation relied on by the claimant in support of the English language requirement must be filed with the Upper Tribunal and served on the Secretary of State no later than 6 September. As to the evidence Mr Singarajah envisaged would be called in support of article 8 grounds, statements of the claimant and her partner are to be filed with the Upper Tribunal and served on the Secretary of State by no later than the above date. Such statements are to as stand as the evidence-in-chief.”
2. On 18 October 2013, the appellant’s advisers filed with the Upper Tribunal Speaking, Listening and Reading official score reports by TOEIC. As to the speaking test, the appellant recorded a score of 150 out of 200 in respect of a test taken on 17 September 2013. In respect of listening and reading, scores were, respectively, 475 and 460 out of potential totals of 495 resulting from tests taken on 16 September 2013.
3. Mr Deller indicated that he had seen these reports and that he did not oppose the appellant’s appeal. This was entirely understandable in the light of the acknowledgment by Mr Parkinson as recorded in Upper Tribunal Judge Dawson’s decision at [9] that the sole issue was whether the claimant was able to meet the English language requirement.
4. Accordingly, as we indicated at the hearing, the appeal is allowed against the immigration decision dated 13 March 2013 and we direct that leave be granted to the claimant in respect of her application dated 30 August 2012.

Signed
Date 13 December 2013

Upper Tribunal Judge Dawson