Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28143/2014

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke-on-Trent
Decision & Reasons Promulgated
On 26th July 2016
On 15th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

V S
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Bradshaw (Counsel)
For the Respondent: Mr C Bates (HOPO)

DETERMINATION AND REASONS
1. This is an appeal against a determination of First-tier Tribunal Judge De Haney, promulgated on 13th May 2015, following a hearing at Manchester on 21st April 2015. In the determination, the judge allowed the appeal of the Appellant, whereupon the Respondent Secretary of State subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.

The Appellant
2. The Appellant is a female, a citizen of India, who was born on 31st October 1982 and is 32 years of age. She appeals against the decision of the Respondent Secretary of State dated 26th June 2014 refusing her application for variation of leave to remain in the UK.
The Appellant's Claim
3. The Appellant's claim is based upon the fact that, although she is married to a British citizen husband, and has a British citizen child, the main issue is whether or not her English language test certificate has been provided by an approved provider. She had submitted a valid English language test certificate authorised by Edexcel, she claims, and the Community Support Plus Ltd (see page 25 of her bundle). The certificate itself refers to Edexcel but also refers to the certificate being issued by Pearsons (see pages 23 to 24). According to the register, Pearsons were on the Register of Approved Providers, and the issue was whether or not the certificate had been genuinely issued by Pearsons. Pearsons itself did not issue the paper certificates, as the register confirmed, but rather issued online certificates, and provided the same to the Respondent.
The Judge's Findings
4. The judge heard submissions that the Appellant had met the requirements of the Immigration Rules because she had sat an appropriate test in ESOL and the Skills for Life test. A certificate had been provided by the test centre and this was a genuine certificate provided by a certified provider. There was a letter from Community Support Plus. Second, Pearsons had also provided the number and it was clear that the Appellant met the requirements of the Rules. Third, as far as Article 8 was concerned, the Appellant had a British citizen child and her husband and daughter had been given indefinite leave to remain in the UK.
5. The judge observed that the Respondent Secretary of State had rejected the Appellant's application on the single point that they did not accept that the certificate in respect of her English language test had been from an approved provider. The judge went on to say that, "further when the provider was shown to be an approved provider the Respondent appears to have changed that stance and stated that the certificate was not genuine" (paragraph 11). The judge also recorded that the letter from Community Support Ltd dated 25th February 2015 shows that the Appellant had passed the relevant exam and had been awarded the relevant certificate. In his conclusions he recorded that, "given my finding under the Immigration Rules, it is not necessary to set out why it" has been "found that the Appellant's removal from the United Kingdom would be a disproportionate interference with the right to family life" (paragraph 13). The latter being a decision by the judge on Article 8 grounds.

Grounds of Application
6. The grounds of application state that Upper Tribunal Judge McClure had given directions that the Appellant is to provide evidence from Pearsons to show that the certificate is valid or in the alternative provide a copy of the relevant register showing Community Support Plus Ltd on it. However, the letter that had been provided was dated prior to the issue of the Appellant's certificate which according to paragraph 12 was issued on 20th February 2014 and therefore the letter dated 23rd May 2013 did not concern the relevant date of the certificate of 20th February 2014.
7. On 5th April 2016, permission to appeal was granted.
Submissions
8. At the hearing before me Mr Bates, appearing on behalf of the Respondent, appears to have changed tack again, and not unapologetically, pointing out that, although this was a matter that had been up to the Upper Tribunal before, there had been a misunderstanding on the application of the Rules, which had simply not been picked up by anyone so far. This was to do with the applicable Immigration Rule. At page 36 of the Appellant's bundle was a reference to Appendix O, and whilst it was accepted that Pearsons was the only approved provider, as set out in Appendix O, and that the English language test was a ESOL test, what page 32 of the bundle made clear was that as far as the test for ESOL entry level 3 course is concerned then the approved provider is "Cambridge English". At the hearing before Upper Tribunal Judge McClure previously, this issue had not been picked up. It was arguable that the Upper Tribunal directions were complied with. However, if the wrong Rule had been applied, and that with respect to entry level 3 course of ESOL the provider should have been Cambridge English, but this was not the provider in the Appellant's case, then there must be a finding of an error of law.
9. For his part, Mr Bradshaw wisely and graciously accepted that this is a "Robinson obvious" point which should have been picked up and he would find it difficult to disagree. Nevertheless, no application to amend the grounds had been made by Mr Bates. That too, was a point wisely taken by Mr Bradshaw. However, whilst he would have to accept that the correct provider had to be "Cambridge English" in accordance with Appendix O, he was not withdrawing the appeal. Second, the appeal could not be allowed under Article 8 either because the judge had linked his conclusions with respect to Article 8 (at paragraph 13) directly with his "finding under the Immigration Rules" and then went on to say that, "it is not necessary to set out why it would in any event be found that the Appellant's removal from the United Kingdom would be disproportionate", without making any express findings independently in relation to Article 8. This being so, the appeal could not be argued on Article 8 grounds either for the time being. Third, accordingly, Mr Bradshaw submitted that this would mean that there needs to be oral evidence in relation to Article 8 before the Tribunal and also the Appellant would need to submit a Cambridge English test certificate for entry level 3. Finally, and no less importantly, in order to be able to sit the Cambridge English entry level 3 course, it was necessary for the Appellant to have back her passport from the Respondent authority, failing which she would not be allowed to sit the test. It was important that directions were given by this Tribunal for the service upon the Appellant of her passport.
10. For his part, Mr Bates replied to say that he would have to agree that if the judge had made separate findings in relation to Article 8 and allowed the appeal on that basis, then his decision could have been upheld, but as it was, those findings were directly linked and subsumed under the findings on Immigration Rules, and therefore could not stand independently from the Immigration Rules.
Error of Law
11. I am satisfied that the making of the decision by the judge did involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. This however, as is clear from above, is through no fault of the judge below at all. In fact, on one view, this is an example once again of how, "the Respondent appears to have changed that stance" (paragraph 11) as transpired before Judge De Haney below. That changing of stance, however, was not however, anything other than entirely understandable, because whereas the well-established position in public law is that an estoppel may operate, it cannot operate if the decision is made by a public body when there was no jurisdiction to make that decision. That is the case here. The jurisdiction was to consider allowing the appeal on the basis of the application of the correct Rules. The correct Rules was that for an entry level 3 course, the test certificate had to come from Cambridge English. Unfortunately the Rules are far too complex these days and have not for nothing been described as being byzantine in their complexity. At first blush Pearsons was the approved provider. Indeed, Pearsons is set out in Appendix O as well. However, with respect to entry level 3 ESOL tests, the approved provider is Cambridge English. This had not been mentioned at any stage by anyone before, even though the matter had gone to the Upper Tribunal before the Tribunal of DTJ McClure, but has only now been picked up, without any notification to the Appellant's side, and without any application having been made to amend grounds by Mr Bates. Nevertheless, the decision below could not stand because it was outwith the jurisdiction of the Tribunal to conclude as it did. The right Rules had not been applied.
Notice of Decision
12. The decision of the First-tier Tribunal involved the making of an error on a point of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed to the extent that it is remitted back to a judge other than Judge De Haney. This is because as Mr Bradshaw indicates, this appeal is not being withdrawn.
13. In the meantime, I direct that the Respondent Secretary of State without any further delay releases and serves upon the Appellant her passport so that she may proceed to comply with the Rules, as she has so far, and to her great credit, has striven to do. It was not known to her that the approved provider in her case was Cambridge English. It was, in fact, not known to anyone until today's hearing.
14. That being so, and so as to allow the Appellant ample opportunity to comply with the law, as she has always set out to do, it is important that she is given the chance to sit the English language test in the correct way and for the correct provider.
15. An anonymity direction is made.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Juss 13th September 2016

Approval for Promulgation

Name of Deputy Judge issuing approval:
Professor S S Juss
Appellant's Name:
Mrs Vanitha Sundaramoorthy
Case Number:
IA/28143/2014

Oral decision (please indicate) X

I approve the attached Decision and Reasons for promulgation

Name: Professor Satvinder Juss

Date: 13th September 2016

Amendments that require further action by Promulgation section:

Change of address:

Rep: Appellant:

Other Information: