Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number IA/14133/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision and Reasons Promulgated
On 20th July 2016
On 31st August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

FAYAZ ALI
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss R Saini (Solicitor, Saini Law Office)
For the Respondent: Mr D Mills (Home Office Presenting Officer)

DETERMINATION AND REASONS
1. The Appellant's application for leave to remain in the UK as a spouse, made following the curtailment of his previous leave, was refused. The Home Office was that he had used deception in a previous application having submitted a fraudulent English language certificate, this case being one of the ETS cases. The appeal was heard by Judge Somal who allowed the appeal in a decision promulgated on the 3rd of September 2016.
2. The Judge's findings are set out in paragraphs 17 to 19 of the decision. The Judge stated that there was nothing before her to cast doubt on the Appellant's case or his credibility. Although the Appellant had changed address without notifying the Respondent, despite the obligation on him to do so, she found the curtailment of his leave had not been validly terminated. On that basis the Appellant had valid leave when he applied to vary his leave as a spouse. The suggestion that he did not meet the suitability requirements because of the use of deception in the ETS was rejected. The Judge found that there was no credible evidence before her that the Appellant was not the person who took the test and no evidence of his using a proxy.
3. The Secretary of State sought permission to appeal to the Upper Tribunal in grounds of application of the 9th of September 2015. It is argued that the Judge was wrong to find that the evidence of the Secretary of State did not show that the Appellant was an individual identified as having used deception. The fact that the Appellant spoke English fluently at the hearing did not show that he had not used a proxy in the test. It was also argued that the Judge had erred in respect of article 8, his case failed under the Immigration Rules as it had not been shown that there were circumstances that would make removal unjustifiably harsh. There were no findings on the possibility of the separation being temporary, his presence had always been temporary. The best interests of the children were a factor. Finally the Appellant had not informed the Tribunal that the college, Colwell College, is the subject of a criminal enquiry.
4. Permission was granted by Judge Woodcraft on the 30th of December 2015 who found that it was arguable that the Judge had erred in not placing any weight on the ETS printout which identified the Appellant. It was also arguable that the article 8 assessment was also flawed as since it was predicated on the Appellant being able to meet the Immigration Rules and it was also arguable that it was an error for the Judge to find that he had not been validly served with the curtailment decision.
5. Both parties attended the hearing before the Upper Tribunal and made submissions. The submissions are set out in the Record of Proceedings, these are referred to where relevant below. At the end of the hearing the case was reserved.
6. Although Qadir [2016] UKUT 229 (IAC) and Shehzad and Choudhury [2016] EWCA Civ 615 post-date the decision under consideration in these proceedings it has been held that the evidence provided by the Secretary of State is sufficient to discharge the evidential burden that rests on the Secretary of State. The effect of the decision is declaratory and so has the effect of stating what the position has always been.
7. The difficulty with this decision is that the Judge found that there was no evidence to cast doubt on the Appellant's case. Apart from his failure to keep the Secretary of State informed of his address or that his college had stopped him studying, which are not minor omissions, the fact is that the Judge took the view that the evidence of the Secretary of State did not discharge the evidential burden which is clearly incorrect.
8. Having regard to the case of Qadir and subsequent authority I find that the analysis of the Judge in paragraph 11 of the decision is flawed and legally erroneous. In rejecting the Secretary of State's evidence is inadequate to begin with the Judge has proceeded from the wrong starting point in then assessing the evidence in the case as a whole. This has to be seen in the context of his failure to keep the Home Office informed of other relevant matters. In those circumstances I am satisfied that her findings on the issue of the use of deception are unsustainable and cannot stand.
9. Given then that the finding that the Appellant meets the suitability requirements of the Immigration Rules cannot stand it follows that he cannot necessarily meet the requirements of the Immigration Rules in relation to spouse applications and the analysis in paragraph 21 proceeds on what is an unsustainable basis. In the circumstances those findings cannot stand either.
10. Given that the basic premise on which the Judge proceeded was flawed there is no justification for preserving any of the findings made by the Judge and the decision is set aside in its entirety. In those circumstances the appropriate course of action is to remit the case to the First-tier Tribunal for re-hearing on all issues, not to be heard by Judge Somal.
CONCLUSIONS
The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
I set aside the decision and remit the case to the First-tier Tribunal for re-hearing.
Anonymity
The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and I make no order.
Fee Award
In remitting this case I make no fee award which remains a matter for the First-tier Tribunal dependent on the outcome of the hearing.

Signed:

Deputy Judge of the Upper Tribunal (IAC)
Dated: 30th August 2016