Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15048/2015

THE IMMIGRATION ACTS

Heard at Field House
On 29 September 2016
Decision & Reasons Promulgated
On 5 October 2016

Before

UPPER TRIBUNAL JUDGE FREEMAN

Between

AMANDEEP KAUR
(ANONYMITY DIRECTION NOT MADE)
appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

respondent

Representation:

For the appellant: Dr A Morgan (working under the supervision of Londinium)
For the respondent: Mr Ian Jarvis

DECISION AND REASONS

1. This is a Home Office appeal against a decision by Judge Sangha sitting at Birmingham on 21 January 2016. This appellant was born in India in 1992, and in 2011 she was given student leave until 2013, when she applied in time for further leave which was granted in 2017.

2. In 2014 the appellant applied for further leave to remain as the wife of a native British citizen, her marriage to a citizen of India having been dissolved. On 30 March 2015 that application was refused. The Home Office took the view that the appellant could perfectly well move back to India with her husband, for reasons that they gave; but, and this is the point on this appeal, in 2013 the appellant had taken the English language test through ETS, a result which could not be authenticated by ETS. That test result had been put forward on an application for administrative review, apparently of an initial unfavourable student decision in 2013. So, the Home Office said, the appellant was guilty of deception and did not meet the suitability requirements of the Immigration Rules. Removal directions were also given.

3. The judge described the ETS point as the main reason for the refusal, and that was the only one on which this decision is challenged in the Home Office appeal: he found in the appellant's favour after considering the usual generic evidence in ETS cases in the light of the Tribunal's decision in Gazi (ETS - judicial review) (IJR) [2015] UKUT 327 (IAC)

4. The grounds of appeal challenge that finding a paragraph 7 on the basis that Gazi decided that the generic evidence "was sufficient to warrant the assessment that the appellant's English language test had been procured by deception and thus provided an adequate foundation for the removal decision". Gazi was a judicial review decision by a Presidential panel. What that passage means is that the generic evidence provides a sufficient basis, in a judicial review case, for a lawful decision; but not that it disentitles the judge from allowing, on the merits, a statutory appeal in which the generic evidence is put forward, as was later done, also by a Presidential panel in SM and Qadir (ETS - Evidence - Burden of Proof) [2016] UKUT 229

5. Looking at what the judge did in this case, he heard evidence from the appellant, which he recorded at paragraph 14, asserting that she had sat the English language test herself on 19 February 2013 and got no help from anyone. In fact the certificate shows that the test was taken on 28 February; but that was not the point raised on this appeal.

6. Going to the judge's reasons for his decision, while it is possible to read what he said at paragraphs 33 and 34 as treating the generic evidence as not raising a sufficient basis for the decision reached by the Home Office, it is quite clear that he went on to consider the question which would have only been relevant if it had done so, as to whether this appellant had in fact genuinely taken the test herself. He noted that there was no specific evidence that she in particular had not done so, and took account of her history and studies in this country of two years even by that time, and the fact that she had given evidence before him in English.

7. Whether or not the judge's approach to the generic evidence left something to be desired in the light of Gazi, it seems to me that he has gone on to consider the evidence put forward in this individual case and reached a decision, perhaps not as detailed as it might have been, but not challenged on that point, that this appellant had genuinely taken the test she said she did.

Respondent's appeal
(a judge of the Upper Tribunal)