Tribunal decisions

The decision

IAC-BFD-MD-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28831/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 March 2017
On 15 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE APPLEYARD

Between

mrs sharmin shayla
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Karim, Counsel.
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer.

DECISION AND REASONS
1. The Appellant is a citizen of Bangladesh who applied for leave to remain as a spouse of a settled person in the United Kingdom on 1 December 2014. The Respondent refused the application on 4 August 2015. She had regard to the immigration history of the Appellant and to the suitability requirements of Appendix FM S-LTR 1.1-3.1 and noted that an applicant will normally be refused on grounds of suitability if any of paragraphs S-LTR 2.222.4 apply. Also she had regard to the TOEIC test sat by the Appellant on 17 July 2013 and relying upon the information received on the test provider Educational Testing Services (“ETS”) the Respondent was satisfied that the test score was obtained by deception. The speaking test indicated that it was taken by a proxy test taker and not the Appellant. Finally she went on to consider the other requirements of Appendix FM noting the Appellant’s spouse is settled in the United Kingdom but only considering the son of the Appellant as a child who has resided in the United Kingdom for over seven years. Since the application the child has become a British citizen but this was not considered by the Respondent.
2. The Appellant’s appeal was heard by Judge of the First-tier Tribunal S J Clarke who in a decision promulgated on 14 September 2016 dismissed it.
3. The Appellant sought permission to appeal which Judge of the First-tier Tribunal Lever granted on 19 January 2017. His reasons for so doing are:-
“1. The Appellant seeks permission to appeal, in time, against a decision if the First-tier Tribunal (Judge Clarke) who, in a determination promulgated on 14 Sep 2016- dismissed the Appellant’s appeal to remain as the spouse of a person settled in the United Kingdom.
2. The grounds assert that the judge erred in considering the respondents (sic) evidence and not applying fully the test and reasoning set out in Qadir and failed to have regard to the best interests of a child.
3. The judge was clearly aware of the case of Qadir and in part referred to that case at [9]. It is arguable that having noted Qadir referred to the frailities (sic) of the Respondents (sic) generic evidence in part failing to discharge the Respondents (sic) legal burden it was incumbent on the judge to clearly note any separate and reliable evidence the Respondent could rely upon and deal fully with the evidence presented by the Appellant. It is arguable that the judge did not do so in [12-15].
4. There was an arguable error of law in this case.”
4. Thus the appeal came before me.
5. Both representatives made reference to two decisions in the making of their submissions. The decisions, which I have taken into account are Qadir v Secretary of State for the Home Department [2016] EWCA Civ 1167 and MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705.
6. In making his submissions Mr Karim expanded the grounds relied upon when applying for permission to appeal. Firstly it was argued that the Judge misdirected herself in law and that the starting point for such consideration of this issue is Qadir. In particular at paragraph 12 of her decision the Judge has come to an irrational finding in concluding that weight should be attached to the non-production of any English language test by the Appellant. All that the Appellant was required to do was to raise an innocent explanation, namely an account which satisfies the minimum level of plausibility and that this had been achieved. Moreover the Judge had made a factual error regarding the length of time between the Appellant’s first and second tests (two years not four years) and has failed to engage with the totality of the evidence. In particular the conclusion of paragraph 14 of her decision that the Appellant must have been at level B2 is speculation. The Judge has quite simply failed to engage with the guidelines within Qadir. Finally it was argued that the Judge failed to consider the best interests of the Appellant’s child. She has plainly applied the wrong test. Following MA (Pakistan) the test is one of reasonableness whereas within the decision it is plain that the Judge has applied a test of “unduly harsh”. The Judge refers to the “unduly harsh” criterion at paragraph 19 of her decision. The Judge has failed to engage with the fact that the Appellant’s child is a British citizen and as suggested at paragraph 35 of MA it will be “relatively rare for it to be reasonable to expect a child who is British citizen to leave the UK…”
7. Ms Fijiwala submitted that the generic evidence before the Judge was sufficient to satisfy the relevant evidential burden and whilst accepting that the Judge made errors in relation to fact there was nothing wrong with the Judge’s analysis and that she had come to conclusions that were open to be made on the evidence that was before her. She also accepted that Judge had erred in referring herself to the “unduly harsh” criterion but urged me to again accept that the decision that she came to was open to be made on the evidence. Although it is relatively rare for it to be reasonable to expect a child who is a British citizen to leave the United Kingdom there are exceptions and this one.
8. For the reasons put forward in the grounds I find that the Judge has materially erred. Not only has she made factual error but more significantly she has not applied fully the test and reasoning set out in Qadir. Moreover her preference for the “unduly harsh criterion” over the “reasonableness test” is in itself a material error this is a decision where it cannot be said that the best interests of the relevant child have been a primary consideration within the proportionality assessment under Article 8.

Conclusion
The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside.
The appeal is remitted to the First-tier Tribunal, to be dealt with afresh, pursuant to Section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2002 and Practice Statement 7.2(b) before any Judge aside from Judge S J Clarke. No findings are preserved and the hearing with be de novo.
No anonymity direction is made.

Signed Date 15 March 2017

Deputy Upper Tribunal Judge Appleyard