Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15010/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 7 July 2016
On 24 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
v

ZAINAB HARUNA
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr S. Whitwell, Home Office Presenting Officer
For the Respondent: Mrs Alabi, counsel instructed by Kingscourt solicitors

ERROR OF LAW DECISION & REASONS
1. The Respondent, to whom I shall refer as the Claimant, is a national of Nigeria, born on 1 January 1990. She arrived in the United Kingdom on 12 December 2008 with entry clearance as a domestic worker and subsequently extended her leave until 20 March 2015. On 24 January 2015, she applied for Indefinite Leave to Remain as a domestic worker. This application was refused on 24 March 2015 with regard to paragraph 159G(v) of the Immigration Rules and she appealed against that decision.
2. Her appeal came before Judge of the First tier Tribunal CM Phillips for hearing on 22 December 2015. The Claimant and her Sponsors attended to give evidence but as the evidence was not in dispute the appeal proceeded on the basis of submissions only. In a decision promulgated on 6 January 2016, the Judge allowed the appeal under the Immigration Rules. She found at [19]-[23] that the evidence that the Claimant provided did not meet the requirements of the Immigration Rules for indefinite leave to remain as a domestic worker under paragraph 159G(v) of the Rules but at [24]-[25] that it was open to the Respondent to consider the exercise of discretion under 4.3.(iv) of Appendix KoLL because the Claimant failed to submit a specified document and thus the decision was not in accordance with the law.
3. The Secretary of State for the Home Department submitted an in-time application for permission to appeal to the Upper Tribunal on 12 January 2016. The grounds in support of the application submitted that the First tier Tribunal Judge erred in misinterpreting the requirements of paragraph 4 of Appendix KoLL in relation to the application of the Respondent's discretion as no such discretion applied on the facts of the case. There was no basis for the Judge considering that the City and Guilds Entry 3 qualification can fall within the discretionary elements of Part 4 of Appendix KoLL at 4.5.
4. Permission to appeal was granted by First tier Tribunal Judge Heynes on 25 May 2016 on the basis that it was arguable that the Judge erred in finding that the Immigration Rules allowed a discretion in relation to the English language requirement.
Hearing
5. Mr Whitwell made submissions in line with the grounds of appeal. He accepted that under Appendix KoLL at 4.3. that the Secretary of State for the Home Department can contact a Claimant in certain circumstances and at 4.4. she may decide not to request a document under 4.3. where s/he does not anticipate that supply of the document will lead to a grant of leave to enter or remain. However, given that there was no ESOL level 3 certificate there was no reason for the Secretary of State for the Home Department to seek further documents on this occasion.
6. In her response, Mrs Alabi submitted that the Claimant had provided a Life in the UK test and this had been accepted by the Secretary of State and the First tier Tribunal. She drew my attention to the fact that the application had been made before 6 April 2015 and as of that date the guidance note that applied, which the Claimant's Sponsor relied on, stated that A2 was the level of English acceptable. The guidance notes were provided to the Secretary of State and the Tribunal at the hearing. The Claimant submitted various other English test results and a Life in the UK test and the Judge held at [24] that there was a discretion for the Secretary of State to request the documents and her submission was that there was a discretion to write to the Claimant that she needed to produce the test result and give her a number of days to produce the document. She submitted that the Judge allowed the appeal to the extent of finding that the decision was not in accordance with the law and sent it back for a proper decision for the Claimant to have the opportunity to pass the test.
7. In his reply, Mr Whitwell submitted that this was not the point and was not relevant. The substantive requirements of the Rules were not met. When Appendix KOLL is considered in its entirety and particularly part 4, the Secretary of State for the Home Department has to believe that the evidence exists and the Claimant's evidence is that it does not exist. He asked me to set the determination aside and re-make and dismiss the appeal, which would not preclude the Claimant from making a decision within 28 days. I reserved my decision, which I now make with my reasons.
Decision
8. I find that the First tier Tribunal Judge had jurisdiction to allow the appeal on the basis that the decision by the Secretary of State for the Home Department was not in accordance with the law by virtue of 2015 No. 371 (C. 18) The Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015, because the amendments to section 82 of the NIAA 2002 that came into force on 6 April 2015 do not apply to decisions made after that date in respect of applications made before that date. The application in this case was made on 24 January 2015 and refused on 24 March 2015 prior to the coming into force of the amended appeal provisions, which have removed jurisdiction to allow an appeal on the basis that the decision was not in accordance with the law. The question is whether the Judge was correct as a matter of law to find that the decision of 24 March 2015 was not in accordance with the law by reason of the failure by the Secretary of State to exercise her discretion and contact the Claimant to provide her with the opportunity to take and provide a certificate of completion of an ESOL test at the requisite level.
9. The version of Appendix KoLL in force at the date of decision provides:
"2.2 ...
vi) the applicant has taken and passed in England, Wales or Northern Ireland a qualification in English for Speakers of Other Languages (ESOL) which:
(aa) includes speaking and listening;
(bb) is at ESOL Entry level 3, level 1, level 2 or level 3?
or
(b) the applicant-
(i) has limited leave to enter or remain in the UK, and
(ii) that leave (or a grant of leave which preceded it provided any periods of leave since have been unbroken) was given on the basis that the applicant had an English language qualification at a minimum level of B1 on the Common European Framework of Reference for Languages.
(iii) at the date of application, the provider of that qualification continues to be approved by the Secretary of State as specified in Appendix O to these Rules?
4.3 Where an applicant has submitted:
(i) a document in the wrong format (for example, if a letter is not on letterhead paper as specified); or
(ii) a document that is a copy and not an original document, or
(iii) a document which does not contain all of the specified information, or
(iv) fails to submit a specified document,
the decision-maker may contact the applicant or his or her representative (in writing or otherwise), and request the document or the correct version of the document. The document must be received by the Home Office at the address specified in the request within such timescale (which will not be unreasonable) as is specified.
4.4 A decision-maker may decide not to request a document under paragraph 4.3 where he or she does not anticipate that the supply of that document will lead to a grant of leave to enter or remain in the United Kingdom because the application may be refused for other reasons."
10. The Home Office guidance in respect of domestic workers in private households does not assist in terms of the criteria to be adopted in terms of the level to be achieved in respect of English language. It does not state, contrary to Mrs Alabi's submission, that Level A2 is acceptable. Similarly, the guidance on Knowledge of Language and Life in the UK provides at page 32 that it was necessary at the time the Claimant made her application, she had an English language certificate which included speaking and listening at ESOL Entry level 3, level 1, level 2 or level 3. I have been unable to find any reference in the guidance to a requirement that an applicant obtain only up to ESOL Level A2 and the First tier Tribunal Judge clearly made her decision on the basis of the guidance that Entry Level 3 was required.
11. The evidence before the Secretary of State and the First tier Tribunal Judge was a Life in the UK test certificate dated 26 July 2014; Cambridge ESOL Entry Level certificate in ESOL International (Level 2); City & Guilds certificates: Entry Level Certificate in Adult Literacy, Functional Skills qualification in English at Entry 3 and English Skills Generic Awards. The Respondent's position is that ESOL Level A3 was required and the Claimant attained only ESOL Level A2.
12. The difficulty with the Claimant's representative's submission in respect of 2.2.(b)(ii) of Appendix KoLL is that paragraph 159A of the Rules does not require an English language qualification at minimum level B1 in order for leave to be granted as a domestic worker in a private household. Consequently, it was not possible for her to qualify under these provisions of Appendix KoLL, which means that it was necessary for her to show that she had an English language certificate which included speaking and listening at ESOL Entry level 3, level 1, level 2 or level 3. It is the case and I find that at the date of application, the date of decision and the date of hearing, the Claimant did not have the requisite level of ESOL certificate but only A2, albeit she had other English qualifications issued by City & Guilds. However, at the date of decision I find that the Secretary of State was unaware of whether or not the Claimant had passed ESOL Entry level 3.
13. The question then is whether the Secretary of State should have exercised discretion and contacted the Claimant requesting that she provide an English language certificate which included speaking and listening at ESOL Entry level 3 or above, pursuant to Appendix KoLL 4.3. and 4.4. 4.3.(iv) which does permit the Secretary of State so to do where an applicant has failed to submit a specified document, however, 4.4. provides a further discretion not to request such a document where it is anticipated that even if provided, that would not lead to a grant of leave to enter or remain in the United Kingdom.
14. I note that the application form at page 61 provides, in respect of "Knowledge of language and life in the UK" that it is necessary to provide: "a relevant speaking and listening qualification, as described in the guidance on our website" and a web address is provided. The web address takes the reader to the current version of the guidance so it is not possible to ascertain whether the guidance at the date the application was made was different, however, it is clear from the current guidance that the criteria applied prior to November 2015 are different from that applied subsequently and that the refusal decision reflects the guidance in force at the material time viz the date of decision. It is clear that the Claimant was not fully appraised of the English language requirement because she has provided a number of City & Guilds certificates from Bromley College, however, these are not ESOL qualifications.
15. Given the lack of clarity as to guidance at the date of application and the fact that it is clear that the Claimant was not fully aware of the exact documents needed in order to fulfil the English language requirement, I find that the First tier Tribunal Judge did not err materially in law in finding that the decision to refuse the application based solely on the level of the Claimant's English language was not in accordance with the law. I agree with the Judge that paragraph 4.3.(iv) of Appendix KoLL can be invoked. Given that the Claimant met all the other requirements of the Rules, I accept the Judge's finding it would have been appropriate for the Secretary of State to have exercised discretion and to have contacted the Claimant asking whether in fact she had an ESOL certificate at Entry Level 3.
16. I note from [10] of the decision of the First tier Tribunal Judge that the Claimant's passport has been withheld and she could not therefore attend lectures or take any tests. It is clearly appropriate for the Claimant's passport to be returned to her in order that she can now complete ESOL Entry Level 3 and I would request that this now be done expeditiously.
Notice of decision
17. I find no material error of law in the decision of the First tier Tribunal Judge and I uphold her decision that the Secretary of State's decision refusing to grant the Claimant Indefinite Leave to Remain was not in accordance with the law. The effect of this decision is that the matter is remitted back to the Secretary of State for further consideration. This consideration should take place after the Claimant's passport has been returned to her and she has had the opportunity to take the ESOL Entry Level 3 examination in speaking and listening in the English language, if she has not already done so.

Deputy Upper Tribunal Judge Chapman

23 August 2016