Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/27883/2015

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 27 February 2017
On 03 March 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MRS BINDU LIMBU
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr P Duffy, Senior Home Office Presenting Officer
For the Respondent: Ms A Jones, counsel instructed by Shahriar Solicitors

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Flynn, promulgated on 30 August 2016. Permission to appeal was granted by First-tier Tribunal Judge E B Grant on 9 January 2017.
Anonymity
2. No direction has been made previously, and there is no reason for one now
Background
3. The respondent entered the United Kingdom as a Tier 4 migrant on 18 March 2011, with leave to enter valid until 30 September 2012. That leave was subsequently curtailed to 28 April 2012. On 22 July 2012, the respondent sought leave to remain under Tier 4; that application being granted from 18 December 2012 until 6 December 2014.
4. The respondent married on 7 November 2014 and on 2 December 2014 applied for further leave to remain as a spouse of a settled person. It is the refusal of that application, on 24 July 2015, which is the subject of this appeal. In that decision, it was considered that the respondent could not meet the suitability requirements of the Immigration Rules because in applying for leave to remain on 22 July 2012, she submitted a TOEIC certificate from Educational Testing Service (ETS). ETS had subsequently advised the Secretary of State that there was “significant” evidence to conclude that the respondent's certificate was fraudulently obtained by the use of a proxy test taker and as such her presence in the United Kingdom was not conducive to the public good because her conduct made it undesirable for her to remain (S-LTR 1.6). Furthermore, it was not accepted that the relationship between the respondent and her partner was genuine and subsisting because no evidence had been provided to demonstrate this. The respondent was also considered not to meet any of the requirements of paragraph 276ADE(1) of the Rules and there were said to be no exceptional circumstances.
The hearing before the First-tier Tribunal
5. At the hearing before the First-tier Tribunal, after the judge heard evidence from the respondent, her husband and another witness, she concluded that the respondent did not use deception and that her relationship with her husband was genuine and subsisting and allowed the appeal under the Immigration Rules.
The grounds of appeal
6. The Secretary of State's sole ground of appeal was that the judge failed to give adequate reasons for findings on a material matter. It was argued that the judge found that the witness statement of a Ms Rackstraw contained “nothing specific” to the respondent notwithstanding that ETS spreadsheet extracts relating to the respondent were attached to that statement. It was contended that it was not clear, from the judge's conclusions how the respondent rebutted the allegation of deception. In relation to the relationship issue, the grounds argued that it was unclear how the respondent supplying separately addressed documents demonstrated a genuine and subsisting relationship.
7. Permission to appeal was granted on the basis that the judge "may arguably have erred in law in his dismissal of (the Secretary of State's) evidence by arguably not following Shehzad at [22] and [26]."
8. The respondent’s Rule 24 response, received on 14 February 2017, argued that the judge understood and applied Secretary of State for the Home Department v Shehzad and Chowdhury [2016] EWCA Civ 615; considered all the evidence and accepted the respondent's innocent explanation of events.
The hearing
9. Mr Duffy relied on the grounds of appeal but addressed me only on the issue which led to the grant of permission. He stated that the judge’s findings amounted to the in limine rejection of the evidence of deception, mentioned in Shezhad. The Secretary of State’s position was that the fact the respondent was unable to recall the address of the test centre should have some weight attached to it and it was not for the judge to say that it was not significant. Mr Duffy emphasised that he was not making a perversity challenge but this was an issue which was suggestive of the use of a proxy test taker. The fact that the respondent spoke English did not mean that she did not use a proxy and the judge had not adequately explained why she rejected the Secretary of State’s evidence.
10. Ms Jones described the judge’s decision as a “textbook” example of how to address Shehzad. She argued that the judge set out the conclusions in Shehzad; outlined the evidence and submissions; referred to Shehzad and followed it. The judge did not say that the Secretary of State did not meet the evidential burden nor say that it did not amount to a prima facie case; overall the judge did not accept the Secretary of State’s evidence and there was no error of law in this case.
11. Mr Duffy had nothing to add by way of reply.
Decision on error of law
12. At the end of the hearing, I announced that I had found no error of law in the decision of the First-tier Tribunal. My reasons are as follows.
13. Permission to appeal was granted on the grounds that the judge had not followed the ratio in Shehzad.
14. At [22] of Shehzad, the following was held to be the correct approach.
“As I have stated, the question in these appeals only concerns the initial stage and whether, with the evidence of Mr Millington and Ms Collings, the evidential burden on the Secretary of State is satisfied. If it is, it is then incumbent on the individual whose leave has been curtailed to provide evidence in response raising an innocent explanation.”
15. Also at [26]; “in my judgment the in limine rejection of the Secretary of State's evidence as even sufficient to shift the evidential burden was an error of law.”
16. In a carefully-written decision and reasons, the judge set out all the evidence before her in detail. She reproduced the oral evidence she heard from the respondent and her witnesses and set out the parties’ submissions in full. The judge began her consideration by referring explicitly to Shehzad as well as the decision in SM(2016] UKUT 229 (IAC) and demonstrated that she understood those authorities at [40], where she stated that the “ETS SELT Source Data Extract and Test Centre Lookup Tool, together with the witness statements from Ms Collings and Mr Millington, were sufficient to discharge the evidential burden and that it would be then for the appellant to demonstrate on a balance of probabilities that they had not used deception.”
17. Contrary to what is implied in the grounds, the judge had regard to the ETS Lookup Tool. At [41] she noted that the evidence before her included that she had referred to at [40] as well as statements from Ms Hilary Rackstraw and Professor French. She did not err in stating that there was no reference to the respondent in Ms Rackstraw’s statement, but it is inaccurate to suggest that the judge failed to consider the Lookup Tool which was attached to that statement.
18. After accepting that the Secretary of State had discharged the initial evidential burden, the judge rightly assessed the evidence provided by the respondent and considered whether she was able to discharge the burden which was now upon her to provide an innocent explanation. There is no error in the judge accepting the respondent’s evidence surrounding the taking of the test; even taking into consideration the gap in the respondent’s knowledge relating to the address of the test centre; but nonetheless concluding, after considering the submissions of the Presenting Officer as well as all the evidence in the round at [43] and [44] that on balance, the respondent did not use deception. As conceded by Mr Duffy, the judge’s findings could not be said to be perverse.
19. The judge made no error of law in this instance and her decision is upheld in its entirety.

Conclusions
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

The decision of the First-tier Tribunal is upheld.

Signed Date

Upper Tribunal Judge Kamara