Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28241/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 February 2017
On 16 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

MRS MANITA TAMANG
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr P Armstrong, a Home Office Presenting Officer
For the Respondent: Ms S Iqbal, of counsel, instructed by Sriharans Solicitors

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal allowing the appeal of Mrs Tamang ('the claimant') who had appealed against a decision taken on 28 July 2015 to refuse her application for leave to remain in the UK on the basis of her marriage to a British Citizen.
Background Facts
3. The claimant is a citizen of Nepal who was born on 8 November 1988. She applied for leave to remain under the Immigration Rules HC395 (as amended). That application was refused because the Secretary of State considered that the claimant had obtained a TOEIC certificate from Educational Testing Services ('ETS') fraudulently in a previous application for further leave to remain as a student. The Secretary of State considered that the appellant had used deception in her earlier application of 29 September 2013. As a result of that deception the Secretary of State considered that the appellant's presence in the UK was not conducive to the public good because her conduct made it undesirable to allow her to remain in the UK.
The Appeal to the First-tier Tribunal
4. The claimant appealed to the First-tier Tribunal. In a determination promulgated on 19 August 2016, Judge S Aziz allowed the claimant's appeal. The First-tier Tribunal found that the Secretary of State had failed to discharge the evidential burden of proving that the appellant had obtained the ETS certificate dishonestly.
The Appeal to the Upper Tribunal
5. The Secretary of State sought permission to appeal to the Upper Tribunal. On 11 January 2017 First-tier Tribunal Judge Pooler granted permission to appeal. Thus, the appeal came before me.
Summary of the Submissions
6. The grounds of appeal assert that the judge erred in finding that the Secretary of State had not discharged the evidential burden. The judge failed to consider the Secretary of State's evidence particular to the claimant, namely the ETS spreadsheet extract at E3 of the Secretary of State's bundle. The case of SSHD v Shehzad & Anor [2016] EWCA Civ 615 ('Shehzad & Anor') is relied on. It is submitted that the Secretary of State had discharged the evidential burden and therefore the burden fell on the claimant who was required to provide an innocent explanation.
7. The grounds also assert that the judge erred in allowing the appeal to the limited extent that the matter was remitted to the Secretary of State to reconsider the application in full. It is submitted that this is not an available basis for allowing the appeal.
8. Mr Armstrong submitted that the judge had clearly failed to take into consideration the specific evident that related to the claimant. He referred to paragraph 22 where the judge states 'As there is no other evidence that the respondent has sought to rely on'. The evidence was in the bundle prepared for the hearing at E3. This led to the material error of law of finding that the evidential burden had not been met. He relied on paragraphs 22 and 26 of Shehzad& Anor.
9. Ms Iqbal submitted that if there was an error of law it was not material. She referred to several pieces of evidence including witness statements that the claimant had provided in the bundle before the First-tier Tribunal. She accepted, however, that she was in some difficulty because the judge had not considered this evidence or referred to it in the context of making any findings in relation to the burden that was on the claimant.
10. Ms Iqbal submitted that the judge when remitting the matter to the Secretary of State was merely indicating that there was still a decision for the Secretary of State to make. She relied on the case of Greenwood (No. 2) (para 398 considered) [2015] UKUT 00629 (IAC) ('Greenwood (no 2))'.
Discussion
11. The judge referred to the generic witness statements of Rebecca Collings and Peter Millington at paragraph 19. The judge then referred to SM and Qadir v Secretary of State (ETS- Evidence - Burden of Proof) [2016] UKUT 00229 (IAC) and concluded:
'21. It is clear from the recent Upper Tribunal decision that the respondent's reliance upon such evidence does not discharge the evidential burden of proving that the appellant obtained the ETS certificate dishonestly. To this extent there is an error of law in the decision made by the respondent.
22. As there is no other evidence that the respondent has sought to rely upon to establish deception, I am not persuaded that they have established that the appellant submitted a fraudulent ETS certificate in a 2013 Tier 4 application?'
12. In Shehzad & Anor the court of appeal set out:
'26?But, whatever the reason, in these circumstances, 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.'
13. The First-tier Tribunal made no reference at all to the document at E3 of the Secretary of State's bundle. The judge referred only to the 'generic' witness statements. This appears to have led to the finding that the Secretary of State had not discharged the evidential burden. Had the judge considered that evidence it is likely that she would have found that the evidential burden had been shifted to the claimant. This was a material error of law.
14. With regard to the second ground of appeal the judge stated:
'As the respondent has not considered the appellant's substantive application, I find that in all the circumstances that the most appropriate course of action is to remit the matter back to the respondent for them to reconsider the appellant's application in full?'
15. In Greenwood (No 2) the Upper Tribunal stated:
24. The effect of this analysis is that the answer to the question posed in [20] above is uncompromising: the FtT has no power to remit a case to the Secretary of State for any purpose. The principle which underpins this conclusion is that the FtT is a creature of statute and its powers are exclusively statutory in consequence. Any course which the statute does not, expressly or by implication, permit is forbidden. In this respect, the FtT is to be contrasted with the High Court which, by tradition of some longevity, is acknowledged to possess an inherent jurisdiction. The FtT cannot lay claim to possession of comparable powers.
16. The First-tier Tribunal erred in remitting this matter when clearly it had no power to do so.
Decision
17. The decision of the First-tier Tribunal involved the making of a material error of law. I set aside that decision pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 ('TCEA').
18. I considered the Practice Statement concerning transfer of proceedings. In this case there has not been any first instance evaluation of the evidence. I am satisfied that the nature and extent of judicial fact finding that is necessary in order for the decision in the appeal to be re-made is such, having regard to the overriding objective, that it is appropriate to remit the matter to the First-tier Tribunal.
19. I remit the case to the First-tier Tribunal at Hatton Cross for the case to be heard before a judge other than judge S Aziz pursuant to section 12(2)(b) and 12(3)(a) of the TCEA.

Signed P M Ramshaw Date 15 February 2017

Deputy Upper Tribunal Judge Ramshaw