Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22906/2014

THE IMMIGRATION ACTS

Heard at: Manchester
Determination Promulgated
On: 28th April 2016
On 9th May 2016
Determination Re-promulgated
On 4th April 2017*

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Secretary of State for the Home Department
Appellant
and

Saima Naveed
(No anonymity direction made)
Respondent

For the Appellant: Mr A. McVeety, Senior Home Office Presenting Officer
For the Respondent: Mr A. Mahmood, Counsel instructed by MWG Solicitors

DETERMINATION AND REASONS
1. The Respondent (Ms Naveed) is a national of Pakistan born on the 21st September 1980. On the 2nd January 2015 the First-tier Tribunal (Judge Mulvenna) allowed her appeal against a decision to refuse to vary her leave to remain as a partner under Appendix FM. The Secretary of State now has permission to appeal against that decision1.
2. The narrow issue is whether Ms Naveed met, at the date of the decision, the English language requirements of paragraph E-LTRP.4.1. of Appendix FM. She made her application on the 9th April 2014. Although she had passed her ‘Life in the UK test’ she had not passed the required ESOL test to demonstrate proficiency in the English language. By the time that the matter reached the First-tier Tribunal she had obtained the necessary qualification, having been awarded her certificate in November 2014. Judge Mulvenna directed himself that this was an in-country appeal and that as such he was entitled to take into account evidence which post-dated the decision. Having regard to the November 2014 certificate, and that being the only matter in issue, he found that Ms Naveed met all of the requirements of the Rules and allowed the appeal.
3. The Secretary of State now appeals on the ground that the requirements of this particular rule had to be met at the date of decision. Whilst there was no misdirection by Judge Mulvenna in respect of in-country appeals, paragraph E-LTRP.4.1 of Appendix FM is drafted in the past tense:
… the applicant must provide specified evidence that they:-
(b) have passed an English language test in speaking and listening at a minimum of level A1 of the Common European Framework of Reference for Languages with a provider approved by the Secretary of State
4. Before me Mr Mahmood accepted that the rule requires that the English language test is passed prior to the decision being made. To that extent the Tribunal had erred, since it is not contested that in May 2014 when the decision was taken Ms Naveed had not yet obtained her certificate. Mr Mahmood indicated that whilst he could have made submissions in respect of Article 8 he had advised his lay client that in fact it would be far more advantageous to her to simply make a fresh application, since that would put her on the ‘5 year route’ to settlement. Ms Naveed confirmed that this had been explained to her and that she was happy to do this.
5. I accept and find as fact that Ms Naveed today meets all of the requirements of the applicable Immigration Rule. It is however accepted that the relevant date for the purpose of the matter in issue was the date of decision. The First-tier Tribunal did therefore err in its assessment and the decision must be set aside. The Secretary of State’s appeal is allowed.

Decisions
6. The decision of the First-tier Tribunal contains an error of law and it is set aside.
7. I re-make the decision by dismissing the appeal.

Upper Tribunal Judge Bruce
4th April 2017

* This decision was originally promulgated under the incorrect name. It has been amended and re-promulgated with reference to Rule 42 (a) of the Tribunal Procedure (Upper Tribunal) Rules 2008