Tribunal decisions

The decision

IAC-AH-LEM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29914/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7th December 2016
On 10 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

Secretary of State FOR THE HOME DEPARTMENT
Appellant

and

MR ADIL MOHAMMED
(ANONYMITY DIRECTION not made)
Respondent

Representation:

For the Appellant: Ms J Isherwood, Home Office Presenting Officer
For the Respondent: No appearance and not represented

DECISION AND REASONS

1. Although this is an appeal by the Secretary of State I refer to the parties as they were in the First-tier Tribunal.
2. The Appellant, a national of India, appealed to the First-tier Tribunal against a decision of the Secretary of State dated 18th August 2015 to refuse his application for leave to remain in the UK as a Tier 4 (General) Student Migrant under the points-based system and for a biometric residence permit. A First-tier Tribunal panel comprising First-tier Tribunal Judge Froome and First-tier Tribunal Judge Maka allowed the appeal in a decision promulgated on 1st June 2016. The Secretary of State was granted permission to appeal by Upper Tribunal Judge Kebede on 10 November 2016 following the renewal of her application for permission to the Upper Tribunal.
3. At the hearing of this matter before me there was no appearance by the Appellant Mr Adil. I noted that on 21st November 2016 the appellant's legal representatives wrote to the Tribunal to say that they no longer represented the Appellant as he had withdrawn his instruction from their firm in February 2016. In the letter the representatives gave the Appellant's last known address. The letter states that the representatives tried to contact the Appellant about the hearing but had failed to get any response from him. The notice of hearing was sent to the appellant's last known address. I am satisfied that the Appellant had been provided with notice of hearing and that there was no explanation for his failure to attend the hearing. I proceeded to hear the appeal in his absence and I heard submissions from Ms Isherwood.
4. In the reasons for refusal letter the Secretary of State gave a number of reasons for refusing the application. The application was refused under paragraph 322(2) of the Immigration Rules on the basis that the Appellant had, in a previous application made on 15th November 2012, submitted a TOEIC certificate from Educational Testing Services (ETS). It is asserted that that test was invalid because it was sat by a proxy tester in place of the Appellant and that, as a false document had been submitted in relation to his previous application, this current application was refused under paragraph 322(2) of the Immigration Rules. The Secretary of State went on to consider whether the Appellant had demonstrated that he scored the requisite points under Appendix A for Attributes and Appendix C for Maintenance. The Secretary of State concluded that the Appellant was not entitled to the 30 points claimed for a Confirmation of Acceptance for Studies (CAS) because he had produced no valid CAS. Accordingly the Appellant was also not awarded any of the 10 points claimed for maintenance because he had not produced a valid CAS.
5. The Appellant appealed against that decision and he did not appear at the hearing before the panel. The panel considered the evidence put forward by the Secretary of State in relation to the ETS including a report from Professor French of 20th April 2016 and the documents relied on in relation to this Appellant. The panel concluded that the Respondent had failed to discharge the legal burden on her to show that this Appellant's TOEIC certificate was procured by dishonesty or fraudulently; the panel found that the evidence had multiple shortcomings and frailties in that it did not show a valid case to answer in respect to this Appellant. Accordingly the panel found that paragraph 322(2) of the Immigration Rules did not apply in this case and the panel concluded "we do not accept the grounds relied upon by the Respondent to curtail the Appellant's leave" [27]. The panel allowed the appeal under the Immigration Rules.
6. In the grounds of appeal to the Upper Tribunal the Secretary of State contended that the panel erred in its approach to the evidence about the Appellant's ETS TOEIC certificate and the assessment of the evidence of Professor French. Permission to appeal was refused by the First-tier Tribunal.
7. On renewal of the application for permission to appeal to the Upper Tribunal, Upper Tribunal Judge Kebede decided that there was arguable merit in the Secretary of State's grounds that there was a misunderstanding by the panel of the evidence produced by Secretary of State. Judge Kebede also pointed out that there was another arguably significant error which had not been raised in the grounds but which meets the Robinson obvious test in that the panel arguably wrongly proceeded on the basis that the decision under appeal was a curtailment decision rather than an application for leave to remain and that the panel had arguably failed to explain how the Appellant met the requirements of Appendix A in relation to the submission of a valid CAS.
8. At the hearing before me Ms Isherwood accepted in the light of the recent case law that she could add nothing to the grounds in relation to the panel's decision in relation to paragraph 322(2) of the Rules. However she submitted that separate from the ETS issue was the issue of the valid CAS. She referred to the CAS at E in the Respondent's bundle which indicated that the Sponsor's licence had been revoked. She submitted that the First-tier Tribunal panel had failed to deal with this issue.
Decision
9. In light of the recent decision of the Court of Appeal in Secretary of State for the Home Department v Shehzad & Anor [2016] EWCA Civ 615 I am satisfied that there is no material error in the panel's decision in relation to paragraph 322(2) of the Immigration Rules. The panel considered all of the generic evidence submitted by the Secretary of State as well as the evidence specific to this Appellant before concluding that the Secretary of State had failed to discharge the legal burden on her to show that this Appellant's TOEIC certificate was procured by dishonesty or fraudulently.
10. I agree with Upper Tribunal Judge Kebede that the issue of the CAS is Robinson obvious and it is therefore appropriate for me to deal with it here. In considering the appeal the panel made no reference to the second basis of refusal as set out in the Reasons for Refusal letter. This related to the Appellant's failure to submit a valid CAS.
11. I accept that this was a material error because there was no evidence before the panel to indicate that there was in fact a valid CAS in this case. In these circumstances, whilst I accept that there is no error in terms of the panel's conclusions in relation to paragraph 322(2) of the Immigration Rules, the panel materially erred in failing to deal with all of the issues in the appeal before it.
12. I preserve the findings and decision of the First-tier Tribunal in relation to paragraph 322(2). However because of the panel's failure to deal with the CAS issue I set aside the conclusion of the panel that the appeal should be allowed.
13. In remaking the decision I note that there is no evidence that a valid CAS was issued in this case and therefore the Appellant has failed to discharge the burden upon him to demonstrate that he has scored the requisite points under Appendix A and Appendix C of the Immigration Rules. In these circumstances I dismiss the appeal.
Notice of Decision

The conclusion of the First-tier Tribunal amounts to a material error of law and I set it aside.

I remake the decision by dismissing the appeal.

No anonymity direction is made.

Signed Date: 9th January 2016

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date: 9th January 2016

Deputy Upper Tribunal Judge Grimes