Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21830/2015

THE IMMIGRATION ACTS

Heard at Manchester, Piccadilly
Decision & Reasons Promulgated
On 5th October 2016
On 6 October 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR SAMI ULLAH
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mrs H Aboni (Senior Home Office Presenting Officer)
For the Respondent: Mr Ansari (Ansari Law, Solicitors)

DECISION AND REASONS
1. This is an application to the Upper Tribunal by the Secretary of State, with permission, against a judgment of the First-tier Tribunal (Judge Davies) promulgated on 15th December 2015 in which he allowed the Appellant's appeal against the Secretary of State's decision to refuse him leave to remain as a spouse.
2. For the sake of clarity and continuity I shall refer to Mr Ullah as the Appellant and the Secretary of State as the Respondent in this judgment.
3. The Appellant had initially sought leave to remain as a Tier 1 (Entrepreneur) Migrant but before it was decided amended that application to one for leave to remain as a spouse.
4. The application was refused as the Secretary of State asserted that the Appellant had used deception by submitting an English language test certificate when the test had been taken by a proxy.
5. As in all such cases, the Secretary of State relied on statements by Rebecca Collings and Peter Millington. The Judge rejected that evidence as inadequate.
6. Originally the grounds challenged that finding but that issue has been resolved, against the Secretary of State, by SM and Qadir (ETS - Evidence - Burden of Proof) [2016] UKUT 229 (IAC). That ground is therefore unarguable.
7. The remaining ground upon which permission to appeal was granted was the assertion by the Secretary of State that the Judge had acted unfairly in curtailing the Home Office Presenting Officer's cross examination. The Judge in granting permission to appeal advised that the parties may wish to adduce further evidence in support of the issue of unfairness. There has been no further evidence.
8. The Judge granting permission to appeal also stated that there was no Record of Proceedings in the file. There was. It is Judge Davies' practice to type a contemporaneous Record of Proceedings during the hearing and place it on the file; as he has in this case.
9. A reading of that document reveals that the Home Office Presenting Officer commenced cross-examining the Appellant and asked 12 questions before the Judge said to him: - "This is not valid cross-examination. It is simply a fishing expedition".
10. The Judge then records that "despite me making this clear HOPO still trys (sic) to carry until I say that I will not permit him to do so"
11. The questions thus far asked related to where the Appellant took the test, how he got there, where he lived at the time and at what time he took the test.
12. The Appellant in this case had, by the time of the hearing taken and passed another approved test, not challenged by the Secretary of State. The Home Office Presenting Officer asked the same questions about the taking of the second test.
13. It is apparent that this line of cross examination was not assisting and it is a matter for the Judge to manage proceedings before him and to curtail unnecessary and inappropriate questioning. This is what he did in his case and there was no unfairness.
14. The questions that the Home Office Presenting Officer says in his statement that he wished to ask, but was prevented from asking were of a similar vein and indeed one was whether the Appellant saw anyone cheating. That was itself an inappropriate question and irrelevant to the issues at hand.
15. I do not find that the Judge acted in an unfair manner towards the Home Office Presenting Officer.
16. The Judge, correctly rejected the evidence relied upon by the Secretary of State; noted that the Appellant had been studying in the UK in the English language, had taken a second test to the Secretary of State's satisfaction and conducted the hearing in English.
17. On the facts and evidence of this case the result was almost inevitable and I find the Judge entitled to curtail inappropriate and unhelpful cross-examination.
18. The decision of the First-tier Tribunal does not contain a material error of law and is upheld.
Notice of Decision

The Secretary of State's appeal to the Upper Tribunal is dismissed.

No anonymity direction having been requested none is made.

Signed Date 5th October 2016

Upper Tribunal Judge Martin