Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/15794/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30th March 2017
On 7th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

ULFAT ABBAS
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: In person
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS

1. This is the appellant’s appeal against the decision of Judge Abebrese made following a hearing at Taylor House on 20th November 2014.
Background
2. The appellant is a citizen of Pakistan born on 7th March 1981. On 10th February 2014 he made a combined application for leave to remain in the UK as a Tier 4 (General) Student Migrant under the points-based system but was refused because the Secretary of State was not satisfied that he met the requirements of the Immigration Rules, specifically under Appendix A and Appendix O. He was required to show that he was competent in the English language at a minimum level B2 of the Common European Framework of Reference for Languages (CEFR) B2. He had submitted a Pearson test English certificate which stated that his writing score of 49 which was below the minimum score of 51 points. Accordingly he was refused under paragraph 245XZ(c) of the Immigration Rules.
3. At the hearing the appellant relied upon two test certificates, one taken in 2012 and the other in 2014. Between the two certificates he had reached the required level in all of the key components. Both tests were valid at the time of application. He also provided a more recent City & Guilds certificate.
4. The judge said that the appellant had on his own admission failed at least one of the key components in 2012 and 2014 and had been found to be lacking in either reading or writing. The City & Guilds certificate postdated the application and could not be relied upon. On that basis he dismissed the appeal.
5. The appellant sought permission to appeal on the grounds that cumulatively he had met the requirements of the Rules when the two test reports were considered together. The original grounds argued that the Immigration Rules should not be interpreted with the same strictness and should be construed purposefully. Other judges had allowed appeals in similar circumstances.
6. Permission to appeal was initially refused by Judge Osborne on 27th April 2015 but, upon renewal, granted by Deputy Upper Tribunal Judge Saini on 2nd July 2015.
The Hearing
7. At the hearing the appellant relied upon the arguments which he had put forward in his grounds and asked that discretion be exercised in his favour and that the appeal be allowed.
8. Mr Jarvis produced the version of the Immigration Rules in force as at the date of application and decision. In Appendix O it states:
“(i) Where two or more components (reading, writing, speaking and listening) of an English language test are examined and awarded together, for example a combined exam and certificate for reading and writing skills, the specified evidence submitted by the applicant must show that he achieved the required scores in all the relevant components during a single sitting of that examination unless exempted from sitting a component on the basis of his disability”.
9. The challenge to Judge Abebrese’s decision is therefore misconceived. The Immigration Rules operative at the date of decision make it quite clear that the appellant is required to produce evidence that he achieved the necessary scores during a single sitting of the examination. In this case, the scores were achieved at one sitting in 2012 and at another in 2014.
10. There is no discretion here. It is not a question of interpreting the Rules purposefully. There is no room for ambiguity. The appellant could not meet the requirements of the Immigration Rules and the judge was correct to dismiss his appeal on that basis.
11. The proper course is for him to make a re-application submitting all of the evidence on which he intends to rely.

Notice of Decision
12. The original judge did not err in law. His decision stands. The appellant’s appeal is dismissed.

No anonymity direction is made.

Signed Date 6 April 2017

Deputy Upper Tribunal Judge Taylor