Tribunal decisions

The decision

IAC-AH-co-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/17959/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th August 2016
On 06th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

MRS CHUNXIA XIE
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Lam, Counsel for Ashtons Solicitors, London
For the Respondent: Mr Tarlow, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of China born on 18th May 1973. She appealed against the decision of the Respondent refusing her application for indefinite leave to remain in the United Kingdom as a spouse. The decision was made on 1st May 2015. Paragraph 287(vi) of the Immigration Rules states that an applicant must provide satisfactory evidence that they have sufficient knowledge of the English language and although the Appellant submitted an ESOL certificate when she was interviewed it was concluded that it was not credible that she had successfully achieved this entry level certificate. The Respondent found the certificate produced was fraudulently obtained. Her appeal was heard by Judge of the First-tier Tribunal Jones on 28th January 2016. The appeal was dismissed under the Immigration Rules and under Article 8 of ECHR in a decision promulgated on 9th February 2016.
2. An application for permission to appeal was lodged and permission was granted by Judge of the First-tier Tribunal Pullig on 20th July 2016. The permission states that there was an arguable error of law when the judge found the Respondent had shown to the required standard, that the certificate had been fraudulently obtained. There was a period of over a year between the test and the interview and the permission states that there was very little evidence from the Respondent that the test certificate was fraudulent. Also, the Respondent referred to the Qualification Handbook which was actually issued after the test had been taken. The permission states that the judge may have failed to deal properly with the evidence and this may be a material error of law.
3. The permission states that the decision relating to Article 8 in the decision is satisfactory. The judge directed herself properly and did not make any arguable error of law on Article 8.
The Hearing
4. I asked the parties if there is anything in this claim which can be agreed on. Counsel for the Appellant stated that there is no verification report relating to the ESOL certificate and no direct evidence that the certificate is fraudulent. The Presenting Officer accepted that. The Presenting Officer submitted that the assertion is that the Appellant at no time went to the test centre and that the certificate is forged. Counsel submitted that the Qualification Handbook is dated in April 2014 but the Appellant sat the test in January 2014, so this is not the correct guidance for this claim. The Presenting Officer accepted that that is the case.
5. The Rule 24 response lodged by the Respondent refers to the fact that the Appellant was interviewed over a year after taking her English language test so according to the appellant her answers in respect of it should not be relied on. The response states that this was properly considered by the judge, who made cogent findings in paragraphs 31 to 36 of the decision relating to this.
6. Counsel submitted that although the Appellant answered 28 questions at interview only 16 of these refer to the English language test, the rest refer to Life in the UK which has not been raised as an in issue in the refusal letter.
7. I was referred to paragraph 36 of the decision in which the judge states that he is satisfied on the balance of probabilities that the Appellant did not take the test at Whitechapel College. She was unable to give accurate times for undertaking the test and was unable to say in which area of London, Whitechapel College is. She also did not recall taking a speaking test. The judge states "If she had taken the test she surely would have remembered". He submitted that this reasoning is not sufficient. I was referred to paragraph 15 of the decision which refers to the Appellant stating how long the test took. He submitted that there is no evidence that the Appellant did not take the test. There are many parts to the test. The test might normally take 30 minutes but perhaps the Appellant finished it in twenty minutes. He submitted that this part of the Appellant's evidence cannot be relied on as the actual question she was asked was ambiguous.
8. Counsel referred me to the case of SM and Qadir [2016] UKUT 00229 (IAC). He submitted that the burden of proof to show that the test was taken fraudulently is on the Respondent and he submitted that this burden has not been discharged. He submitted that the Appellant's evidence is that she was nervous when she sat the test and also when she was interviewed.
9. I was referred to the Appellant's husband's statement. He states that when he went with the Appellant to Liverpool for the interview, it was delayed and there were problems with the interviewer's accent. Counsel submitted that it must be relevant that there was over a year between the test and the interview and this should be taken into account. He submitted that the Respondent has produced nothing else to support her case. She did not contact the college for its side of the story and he submitted that although the burden is on the Respondent nothing extra has been produced.
10. Counsel submitted that the Appellant's husband has diabetes and has a job in the United Kingdom and the Appellant has a job in the United Kingdom. I was referred to the case of Muhandiramge [2015] UKUT 00675 (IAC) at paragraphs 9 to 11. In this t is stated that where there is said to be deception by an Appellant, it is well-established that in such cases the burden of proof rests on the Secretary of State and the standard of proof is at the higher end of the balance of probabilities spectrum. He submitted that the Secretary of State has made a very serious allegation and the Appellant has given a proper explanation which satisfies the minimum level of plausibility and the Respondent has produced nothing, apart from the interview record.
11. Counsel submitted that the interviewer was not a qualified language assessor and I was asked to give weight to the terms of the permission granted and the fact that the wrong guidance was used by the Respondent.
12. Counsel submitted that one of the reasons the English test has to be passed is to ensure that the applicant integrates into society in the United Kingdom. He submitted that that is ironic as in this case the Appellant is married to an Englishman and is friendly with her mother-in-law, who is English, and he submitted that this aspect of the English test does not apply to the Appellant. She has clearly integrated into life in the United Kingdom.
13. Counsel submitted that the Respondent has not produced sufficient evidence to support her argument and so she has not discharged the burden of proof and I was asked to set the decision aside and allow the appeal.
14. The Presenting Officer submitted that he is relying on the Rule 24 response and the grounds of application are merely a disagreement with the judge's findings, which were open to him and adequately reasoned.
15. I was referred to paragraph 13 of the First-tier Judge's decision and I was asked to read the questions and answers given at interview. He submitted that it is clear from the interview that the Appellant either failed to understand the questions or if she understood them was unable to answer them in English. He submitted that the judge was entitled to comment on this.
16. The Presenting Officer referred me to paragraph 15 of the decision. This is the paragraph about how long the test took. Paragraph 14 deals with the cost of the test. He submitted that because of the answers given by the Appellant at the interview the Respondent concluded that on the balance of probabilities the Appellant had not sat the test. The Presenting Officer submitted that the Respondent's decision is sustainable. The judge maintained that decision and gave adequate reasons for doing so. He submitted that there is no basis for overturning the decision and it should stand.
17. Counsel for the Appellant submitted that the evidence relied on by the Respondent is flimsy and is not material. He submitted that the evidential burden is on the Respondent and it is set at a high level of the balance of probabilities. He submitted that there must be a material error of law in the First-tier Judge's decision, particularly in view of the fact that when the Respondent made her decision she used the wrong guidance. This is not in dispute.
18. I was referred to paragraph 31 of the decision. Counsel submitted that this is not accurate as only sixteen of the questions at interview related to the English test. The other questions related to Life in the UK. Counsel submitted that because of the lack of evidence provided by the Respondent the burden of proof has not been discharged. The Respondent relied solely on a few questions at interview and that is not sufficient.
19. I was asked to set aside the decision and make a new decision allowing the appeal.
20. Permission to appeal is based on one issue and that is whether the Respondent showed, to the required standard, that the English test certificate had been fraudulently obtained. The permission refers to the long period between the interview and the test and the Appellant stating she could not remember much about the test. The permission refers to the lack of evidence from the Respondent, that the test certificate was itself fraudulent and also to the Qualification Handbook referred to, which was in fact issued after the test had been taken. The permission states that the judge may well have failed to deal properly with the evidence before him.
21. What is being asserted by the Respondent is that the Appellant did not go to the test centre to sit the test. The burden of proof relating to this is on the Respondent and is the balance of probabilities.
22. The answers given by the Appellant at interview are extremely poor but there are mitigating circumstances being that the Appellant was nervous, perhaps had problems understanding the accent of the interviewer and it was over a year after she sat the test before she was interviewed.
23. The Respondent has not provided any evidence to show that the Appellant did not attend the test centre. It is not clear why the college was not contacted about this by the Respondent. I have also noted that the respondent and the judge relied on a handbook dated in April 2014 which must be an error as the test was sat on 7th January 2014. There is no evidence to contradict the Appellant when she states she attended the Whitechapel Test Centre to take the B1 test on 7th January 2014. There is evidence that she took a course in preparation for the test.
24. I have to decide if the Respondent has discharged the burden of proof as to whether the Appellant acted dishonestly. There is no issue about the authenticity of the B1 certificate.
25. Based on what was before the judge she concluded that the Appellant had not taken the test. (Paragraph 36). She states in this paragraph that if she had taken the test she surely would have remembered. That this is not enough to show that on the balance of probabilities the Appellant did not take the test. I have considered the case of Muhandiramge. There is an evidential burden on the Secretary of State which requires sufficient evidence to be adduced to raise an issue as to the existence or non-existence of a fact in issue. I do not find that the Secretary of State has adduced sufficient evidence. The Appellant has given an explanation which satisfies the minimum level of plausibility.
26. Based on what was before the First-tier Immigration Judge the Respondent has not discharged the burden of proof to the balance of probabilities.
27. I therefore find there to be a material error of law in the judge's decision.

Notice of Decision
As I find there to be a material error of law in the judge's decision I direct that the decision by Judge of the First-tier Tribunal Jones, promulgated on 9th February 2016, be set aside.
I am remaking the decision. I do not find there to be a necessity for a further hearing.
I allow the appeal.
No anonymity direction has been made.

Signed Date

Deputy Upper Tribunal Judge I A M Murray