IA/18274/2015

• Status of case: Unreported
• Hearing date: 21 Feb 2017
• Promulgation date: 29 Mar 2017
• Publication date: 22 Mar 2022
• Last updated on: 22 Mar 2022

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/18274/2015


THE IMMIGRATION ACTS


Heard at Birmingham Employment Tribunal
Decision & Reasons Promulgated
On 21 February 2017
On 29 March 2017




Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Pankaj Gagneja
(ANONYMITY DIRECTION NOT MADE)
Respondent


Representation:

For the Appellant: Mr M Diwncyz, Home Office Presenting Officer
For the Respondent: Mr N Ahmed, Counsel, instructed by Warwick Solicitors


DECISION AND REASONS
1. The respondent (hereafter the claimant) is a citizen of India. On 9 February 2016 First-tier Tribunal (FtT) Judge Pooler allowed his appeal against the decision made by the appellant (hereafter the Secretary of State or SSHD) dated 1 May 2015 refusing his application for leave to remain on human rights grounds.
2. The SSHD’s grounds contend first of all that the FtT Judge failed to give adequate reasons for concluding that the respondent had failed to discharge the onus on him to prove that he exercised deception by using a proxy to obtain an ETS certificate. As Mr Diwncyz conceded, this ground founders on (1) the fact that in this case the SSHD had produced no sufficiently specific evidence and relied simply on the generic evidence; and (2) the fact that the judge made a specific finding based on the appellant’s evidence that he had not used a proxy and the grounds raise specific challenge to those findings only as to the judge’s treatment of the SSHD’s evidence. Mr Diwncyz stated that in the light of the Court of Appeal clarification of the relevant principles to be applied in ETS cases, he no longer wished to pursue this appeal.
3. The SSHD’s second ground challenges the judge’s treatment of the appellant’s Article 8 circumstances, but as Mr Diwncyz again conceded, the second ground as drafted is fatally misdirected. It challenges the judge’s treatment of the claimant’s Article 8 circumstances at large, whereas in fact the judge allowed this aspect of the appeal on the basis of his satisfaction that the claimant met the requirement of the Immigration Rules, Appendix FM EX(1)(a) in particular. In addition, given the judge’s decision that the suitability requirements were met (by virtue of it not having been shown that the claimant used deception), it is difficult to see what public interest considerations could be weighed in the balance against someone who has met the relevant requirements of the Immigration Rules. In any event, it is quite clear that this ground as drafted cannot succeed.
4. For the above reasons I conclude that the SSHD’s challenges to the FtT Judge’s decision are not made out. Accordingly the decision of the FtT Judge must stand.
No anonymity direction is made.


Signed Date:27 March 2017

Dr H H Storey
Judge of the Upper Tribunal