Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/26554/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 February 2017

On 02 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

HAKMOT ALI
(ANONYMITY DIRECTION not made)
Respondent

Representation
For the Appellant: Ms Z. Ahmad, Home Office Presenting Officer
For the Respondent: Mr. P. Saini, Counsel instructed by Londonium Solicitors

DECISION AND REASONS

1. The respondent is a national of Bangladesh born on 21 March 1985 who applied on 3 December 2012 for leave to remain in the UK as a Tier 1 (Entrepreneur) Migrant under the Points Based System.

2. On 10 July 2015 his application was refused on the basis that he was required to show a knowledge of English equivalent to level C1 or above of the Council of Europe’s Common European Framework for Language Learning but the evidence he provided, in the form of an IELTS English certificate dated 14 March 2015, only established he had met level B1.

3. The respondent appealed to the First-tier Tribunal where his appeal was heard by First-tier Tribunal Judge Plumptre. In a decision promulgated on 8 July 2016, the judge allowed the appeal. The Secretary of State now appeals against that decision.

4. The only issue before Judge Plumptre was whether the respondent satisfied the English language requirement in Appendix B of the Immigration Rules.

5. The level of English required under Appendix B was amended by the Statement of Changes in Immigration Rules HC 760 (“HC 760”), the relevant part of which came into effect on 13 December 2012. Prior to HC 760, a Tier 1 (Entrepreneur) was required to have a level of English equivalent to level C1 or above of the Council of Europe’s Common European Framework for Language Learning. After HC 760 came into force, the requirement was reduced to level B1.

6. The judge found that the version of Immigration Rules applicable to the respondent was that in force at the time of the Secretary of State’s decision (10 July 2015) and not the Rules in force at the time of the application (3 December 2012). As the Rules in force on 10 July 2015 only required an applicant to show English at level B1, and this is what the IELTS certificate dated 14 March 2015 showed, the appeal was allowed.

7. The grounds of appeal argue that as a consequence of the implementation provisions of HC 760 the judge should have applied the Immigration Rules in force at the date of the respondent’s application rather than the date of the Secretary of State’s decision.

Error of Law

8. The paragraph of HC 760 which concerns the change in English language requirement for Tier 1(Entrepreneur) applicants is Paragraph 329.

9. Paragraph 329, along with most of the changes to the Immigration Rules brought about by HC 760, came into force on 13 December 2012.

10. Paragraph 4.3 of HC 760 states that:

“In respect of the other changes [which includes paragraph 329], if an applicant has made an application for entry clearance or leave before 13 December 2012 and the application has not been decided before that date, it will be decided in accordance with the Rules in force on 12 December 2012.

11. The respondent made his application on 3 December 2012 (which is before 13 December 2012) and the application had not been decided by 13 December 2012. Therefore, in accordance with Paragraph 4.3 of HC 760, his application fell to be decided in accordance with the Rules in force on 12 December 2012. The judge’s finding that the application should be determined under the Rules in force on 10 July 2015 rather than those in force on 12 December 2012 was a clear – and material – error of law.

Remade Decision

12. Mr Saini made two arguments as to why, notwithstanding that the applicable Rules require the respondent to satisfy the English language requirement to level C1 and his test scores only showed level B1, the appeal should be allowed.

13. His first argument was that there is no public interest in the application being refused. The change to the English language requirement made in December 2012 reflects the government’s view that for Tier 1 entrepreneur applicants level B1 English is sufficient. Given it has now been four years that the required level of English has been level B1, it cannot be in the public interest to refuse the respondent’s application solely because his English has been shown to be at that level.

14. Mr Saini’s second argument was that the Secretary of State’s decision was not in accordance with law as there had been a failure to treat the respondent fairly by not providing him with a certified copy of his passport which he needed in order to take a test with English language test providers. Although the respondent managed to take a test with IELTS on 14 March 2015, he was unwell at the time, and because the Secretary of State had not provided him with his passport (or a certified copy) he was unable to retake the test once his health improved with another provider.

15. For the following reasons, the respondent’s appeal is dismissed.

16. The respondent applied, on 3 December 2012, for leave to remain as a Tier 1 (Entrepreneur) Migrant. In order to succeed, he was required to establish that he satisfied a variety of requirements, one of which was that his knowledge of English was at the requisite level under Appendix B of the Immigration Rules.

17. Changes to the English language requirement for Tier 1 (Entrepreneur) applicants in Appendix B came into force on 13 December 2012, as a result of HC 760. Under the transitional arrangements in HC 760 the English language level the respondent was required to meet was that in force before the change on 13 December 2012, which was level C1 or above of the Council of Europe’s Common European Framework for Language Learning.

18. In his application, the respondent relied on an IELTS English certificate dated 14 March 2015 which established he had met English language level B1.

19. As the respondent did not meet the applicable English language requirement under Appendix B, he is unable to succeed in his application under the Points Based System.

20. This is a harsh outcome for the respondent. Had he made his application two weeks later, the level of English established by the IELTS English certificate dated 14 March 2015 would have been sufficient and he would have succeeded in his application. However, it is well established that strict compliance with the Points Based System is required and the respondent cannot succeed because he nearly satisfied the Rules. See, for example, R (on the application of Hafeez) v SSHD [2014] EWHC 1342 (Admin).

21. Mr Saini argued that there can be no public interest in refusing the respondent a visa where the only shortcoming in his application was that that he did not demonstrate he could meet an English level requirement that the government no longer considers appropriate. However, this is an application under the Points Based System. As such, the question for the Secretary of State – and for me in remaking the First-tier Tribunal’s decision – is not whether it is in the public interest for the respondent to be given leave to remain or whether application of the Rules in the particular circumstances results in a harsh consequence, but whether or not the respondent satisfied the specified requirements of Immigration Rules as set out, inter alia, in appendices A, B and C.

22. I am also not persuaded by Mr Saini’s argument that the Secretary of State’s decision is unlawful due to unfairness arising from a failure to provide the respondent with the documentation he needed in order to take an English language test. The Secretary of State’s letter to the respondent dated 10 February 2015, which gave him until 3 April 2015 to take a new English language test, enclosed with it an endorsed copy of his passport. Having received the endorsed copy the passport, the respondent proceeded to take a test with IELTS within the required timeframe. The respondent’s representative wrote to the Secretary of State on 1 April 2015 enclosing the IELTS results. The letter mentioned that the respondent was having difficulties booking a test with other providers as his passport had expired.

23. I accept that it would have been unfair to reject the respondent’s application because of the absence of an English language test score if the reason the respondent was unable to obtain such a score was that the Secretary of State failed to provide him with documentation required by test providers. That, however, is not what occurred in this case. The respondent was told he was required to take a new English language test and then did so within the required time frame. The reason the application was rejected was not because the respondent was unable to take a suitable test but because the score he obtained on the test was below the required level.

24. The respondent argues that he should have been given another opportunity to take the test because he was unwell when he took the test on 14 March 2015. There will be occasions where an applicant’s health problems are such that it would be unfair to not grant an extension of time to take a test. This, however, is not such a case. The respondent took a test on 14 March 2015 and it was only after he received the result that he contacted the Secretary of State to raise the question of his illness. If illness prevented him from being able to properly take the test he could have raised this before the test was taken. Moreover, the medical evidence produced by the respondent, in the form of a letter from his GP, only states that he had been suffering from epigastric pain over a long period of time and that

“according to him, due to this problem, he was unable to perform well in the exam” (emphasis added).

25. The letter from the respondent’s GP does no more than repeat what the GP has been told by the respondent. In these circumstances, it was not unfair for the Secretary of State to rely on the English test results submitted by the respondent.

26. The respondent also argues that refusing his application would be contrary to Article 8 ECHR.

27. The respondent came to the UK in 2009 as a student and has been in the UK lawfully since that date. He claims to have developed strong emotional ties with friends in the UK, some of whom have invested in his business.

28. No argument was made before me that the respondent is able to meet the requirements of either Appendix FM or Paragraph 276ADE(1) of the Immigration Rules. His case under Article 8 therefore falls to be considered outside the Rules.

29. Given the length of time the respondent has been in the UK, I accept that he has developed a private life which engages Article 8 such that the issue to be resolved is whether his removal from the UK would amount to a disproportionate interference with his right to respect for his family and private life under Article 8 ECHR.

30. Applying Part 5A of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”) and considering proportionality more general, I am satisfied that this is not a case where the respondent’s removal would be disproportionate under Article 8.

31. Weighing in the respondent’s favour is that he speaks English, is financially independent and that if the current version (and version applicable for the last four years) of the Immigration Rules were applied to his application he would satisfy them. Moreover, he is only asking to be allowed to remain in the UK as a Tier 1 Entrepreneur and not for permanent settlement.

32. There are, however, two significant factors weighing against the respondent. The first is that the maintenance of effective immigration controls is in the public interest. Although the respondent came close to meeting the Rules, the fact remains that he did not and accordingly the importance of maintaining effective immigration control weighs against him. The second significant factor is that under Section 117B(5) of the 2002 Act little weight should be given to a private life established by a person at a time when his immigration status was precarious. The respondent’s private life in the UK has at all times been precarious and, having entered the UK as a student and sought to remain as an entrepreneur, he has never had an immigration status that would give rise to an expectation that his private and family life in the UK would entitle him to remain.

33. Where, as in this case, an applicant cannot meet the Immigration Rules concerning private and family life, there will need to be compelling circumstances to allow an appeal outside the Rules. No submissions have been made or evidence adduced about the respondent’s family or private life in the UK that would lead me to conclude there are circumstances that are in any way compelling.

34. Balancing the factors set out above, and noting in particular the absence of evidence of compelling circumstances and that little weight should be given to the respondent’s private life, I am satisfied that the respondent’s removal from the UK would not be a disproportionate interference with his rights under Article 8 ECHR.

Decision

35. The decision of the First–tier Tribunal contains a material error of law and is set aside.

36. I remake the decision by dismissing the respondent’s appeal against the decision of the Secretary of State.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 1 March 2017