Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30246/2015

THE IMMIGRATION ACTS

Heard at : IAC Birmingham
Decision & Reasons Promulgated
On : 31 January 2017
On : 7 February 2017

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

rasel ahmed

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr N Ahmed, instructed by Eurasia Legal Services
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Bangladesh, born on 1 January 1985. He has been given permission to appeal against the decision of First-tier Tribunal Judge Coates, dismissing his appeal against the respondent's decision to refuse his application for leave to remain on human rights grounds.

2. The appellant entered the United Kingdom on 25 October 2009 with leave to enter as a Tier 4 (General) Student Migrant until 28 October 2012. Further to an application made on 26 October 2012, he was granted leave to remain as a Tier 4 (General) Student Migrant until 30 October 2015. On 18 August 2014 he made an application for leave to remain as the spouse of his British wife.

3. The appellant's application was refused on 24 August 2015. The respondent accepted that the appellant was in a genuine and subsisting marriage with his British wife and that he lived with his wife and one-year-old British daughter. However the respondent considered that the appellant failed to meet the suitability requirements in paragraph S-LTR.1.1 to 3.1 as his presence in the UK was not conducive to the public good because his conduct made it undesirable to allow him to remain in the UK. The relevant conduct was fraudulently obtaining a TOEIC certificate and thus willingly participating in an organised and serious attempt to defraud the Home Office and others. The respondent noted that the appellant had submitted, with his application of 26 October 2012, a TOEIC certificate from the Educational Testing Service (ETS) in relation to an English language test he claimed to have taken at European College for Higher Education on 24 April 2012. The respondent had been informed by ETS that a proxy test taker had been used and that they had therefore declared the appellant's test result as invalid and cancelled it. The appellant was therefore unable to meet the requirements in Appendix FM and paragraph 276ADE(1). The respondent considered further, and in any event, that the appellant could not meet the eligibility requirements as a parent, that there were no significant obstacles to integration in Bangladesh and that there were no exceptional circumstances justifying a grant of leave outside the immigration rules.

4. The appellant appealed against that decision. His appeal was heard on 9 December 2015 by First-tier Tribunal Judge Coates. The judge heard oral evidence from the appellant and submissions from both parties. He was satisfied that the appellant had sought to obtain leave by deception through the use of a fraudulently obtained English language test certificate provided by ETS and that the respondent's decision to refuse his application on suitability grounds was justified. The judge went on to consider Article 8 outside the immigration rules and concluded that there were no compelling circumstances justifying a grant of leave.

5. The appellant then sought permission to appeal to the Upper Tribunal, asserting that the judge had applied the wrong burden of proof to the deception allegation and that the evidence produced by the respondent was insufficient to discharge the burden of proof that she bore. It was asserted that the appellant had given evidence in fluent English before the judge and had obtained a further English language qualification. The judge had therefore erred by finding that the suitability requirements were not met. With regard to his findings on Article 8 it was asserted that the judge had failed to consider the British child and that it was unreasonable to expect a British child to leave the UK and had failed to consider the child's best interests.

6. Permission was granted on all grounds, but with particular reference to the judge's findings on deception.

7. At the hearing before me both parties made submissions.

8. Mr Ahmed submitted that the judge had erred by attaching weight to the respondent's generic evidence in regard to the deception allegation and had failed to consider the respondent's failure to meet the legal burden by producing any additional evidence. Even if the judge was correct in his finding on the deception point, he had erred by failing to go on to consider why the appellant's presence was not conducive to the public good. Mr Ahmed submitted that a deception exercised in 2012 could not be determinative of paragraph S-LTR.1.6, particularly when the appellant had not been charged with any criminal offence and had a family life in the UK with his wife and child. There was no evidence to suggest that he was a risk to the public. He relied on the case of Ruhumuliza (Article 1F and "undesirable" : Rwanda) [2016] UKUT 284 in submitting that it was wrong to only consider past conduct. Mr Ahmed submitted that the judge had erred in his Article 8 assessment. He relied on the case of Hesham Ali [2016] UKSC 60 in submitting that the rules were not a complete code and that the Secretary of State was wrong to require there to be compelling circumstances in order for leave to be granted outside the rules. The judge had not considered section 117B(6) of the Nationality, Immigration and Asylum Act 2002. His finding that it would be reasonable for the appellant's daughter to go to Bangladesh was contrary to the Home Office guidance and to the principles in Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09. There was no consideration of the best interests of the appellant's daughter. Mr Ahmed submitted that the judge's decision ought to be set aside and the matter remitted to the First-tier Tribunal to be considered afresh.

9. Mr Mills submitted that the judge's findings on deception were consistent with those in SM and Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT 00229 and with the burden of proof "boomerang" referred to at [44] of that decision. The respondent had submitted sufficient evidence to establish a prima facie case and meet the evidential burden of proving deception. The appellant's assertion that he had taken the test was insufficient to rebut that evidence when it was evident from the judge's findings and his record of the appellant's evidence that he had not given a credible account. The judge was entitled to find that the allegation of deception had been proven by the respondent. Mr Mills accepted that the judge did not specifically set out paragraph S-LTR.1.6 and that the refusal decision did not specifically refer to that paragraph, but it was clear that that was the basis for the findings on suitability. The findings in Ruhumuliza were not applicable to the appellant's case and the judge was entitled to conclude that the suitability requirements had not been met. With regard to Article 8 outside the rules, the judge applied the correct test of compelling circumstances as confirmed in Treebhawon and Others (NIAA 2002 Part 5A - compelling circumstances test : Mauritius) [2017] UKUT 13 and, whilst he did not specifically refer to section 117B(6), he considered it in substance and was entitled to find that it was reasonable for the appellant's daughter to leave the UK.

10. Mr Ahmed responded and reiterated the points previously made.

Consideration and Findings

11. Whilst it is the case that the decision made by the judge in the appellant's appeal preceded the decision in SM and Qadir, it seems to me that the approach he took in regard to the evidence and the burden of proof was entirely consistent with that set out in SM and Qadir and I reject Mr Ahmed's submission to the contrary. Mr Ahmed's submission appeared to be that there was no burden of proof upon the appellant and that the generic evidence produced by the respondent was insufficient to discharge the legal burden of proof. However such a submission betrays a clear misunderstanding, or misapplication, of SM and Qadir, where it was found that there was a shifting burden of proof and that the evidence such as that produced by the respondent in this appellant's case was sufficient to meet the initial evidential burden of proof. The judge's assessment of the respondent's evidence at [17] to [19] therefore reflected the initial evidential burden of proof consideration in SM and Qadir. His subsequent consideration at [20], of whether the appellant's evidence was sufficient to rebut the respondent's evidence, reflected the requirement in SM and Qadir (at [68]), for the appellant to raise an "innocent explanation" to meet the evidential burden which had shifted to him, and to then shift the legal burden back to the respondent. Mr Ahmed submitted that the appellant had provided that evidence by his denial of any wrongdoing. However it is plain from the findings in SM and Qadir that he was required to do more than that and that his ability in English and subsequent qualification some years later (of which no details appear to have been provided by the appellant in any event) were not at all sufficient when there were otherwise credibility concerns.

12. In the appellant's case there were plainly significant credibility concerns, which the judge set out when recording the appellant's evidence at [9] to [11], in particular that the appellant did not even know which college he had attended to take the English language test and kept changing his evidence in that regard. At one point he claimed to have had no dealings with European College for Higher Education, yet that college was named in the ETS SELT Source data as the college where he took the test. Another significant credibility concern was that the appellant had travelled 300 miles to take the test in London when he was living in Newcastle. Further, the appellant had not tried to contact ETS after being notified that his test was invalid. On the basis of that evidence the judge was entirely entitled to conclude, as he did at [20], that the appellant had failed to rebut the evidence of fraud. Contrary to Mr Ahmed's submission, that was clearly sufficient for the judge to conclude that the respondent had fully discharged the burden of proving deception. I find no error of law in the judge's decision in that respect.

13. Neither do I find that the judge erred in his findings on suitability. Whilst the judge did not specifically set out the provisions of paragraph S-LTR.1.6, it is clear from his recording of the respondent's decision, at [8], that he was fully aware of the basis upon the respondent considered that the appellant fell foul of the suitability requirements. Mr Ahmed submitted that the judge was wrong to treat the deception as determinative of paragraph S-LTR.1.6 and that his approach to paragraph S-LTR.1.6 was inconsistent with the approach in Ruhumuliza. However I do not agree. The circumstances in Ruhumuliza were entirely different and it cannot be said in this appellant's case that there was any evidence before the judge to show that he had changed since the exercise of deception. On the contrary he had continued to benefit from his deception, remaining in the UK on the basis of leave which had been fraudulently obtained. It is in any event clear from the judge's reference to and consideration of discretion, at [21], that he took all the appellant's circumstances into account when considering whether the refusal under S-LTR.1.6 was justified. He was fully entitled to conclude that the appellant's attempt to deceive the UK authorities was sufficient to justify the refusal on that basis and I find no error of law in such a conclusion.

14. Mr Ahmed then challenged the judge's findings on Article 8 outside the immigration rules. His submission, that the judge applied the wrong test and wrongly considered "compelling circumstances", was clearly incorrect and was contrary to the guidance given in Treebhawon. In Treebhawon the President specifically confirmed that "Where the case of a foreign national who is not an offender does not satisfy the requirements of the Article 8 ECHR regime of the Immigration Rules, the test to be applied is that of compelling circumstances." The judge therefore applied the correct test at [22].

15. Mr Ahmed submitted that the judge had erred by failing to consider section 117B(6) and to consider that the appellant had a British child, that he had failed to consider the best interests of the child and that he had failed to consider the Home Office guidance which stated that it was unreasonable to expect the British child to leave the UK. It is indeed the case that the judge's findings at [22] and [23] could have benefitted from a more structured assessment with particular reference to section 117B(6), but I would agree with Mr Mills' submission that the relevant matters were nevertheless considered in substance. The judge plainly considered the appellant's child and the child's interests which, at the age of one year, would in any event not have involved considerations outside the family unit. Although not specifically referring to her British nationality at [23], the judge was plainly aware that the child was British, and made specific reference to her nationality earlier in his decision. The judge properly focussed on the question of whether it was reasonable for the child to leave the UK and his broad consideration of that matter, taking account of all the circumstances, was consistent with the approach taken by the Court of Appeal in MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705.

16. Whilst Mr Ahmed submitted that no consideration was given to the Home Office Guidance in relation to British children, and that the judge's decision was inconsistent with the guidance, I see nothing in the evidence to show that that was in fact a matter raised before the judge. In any event the judge, at [23], was clearly contemplating different options and choices open to the family so that it was not the case that the child would be forced to leave the UK contrary to the terms of the guidance and the principles in Zambrano. It is also of some relevance, given the findings on the appellant's involvement in fraud and deception, to note that Mr Ahmed's reference to the guidance at page 6 of his skeleton argument stopped short of the following, which seems to me to be consistent with the judge's findings:

"It may, however, be appropriate to refuse to grant leave where the conduct of the parent or primary carer gives rise to considerations of such weight as to justify separation, if the child could otherwise stay with another parent or alternative primary carer in the UK or in the EU.

The circumstances envisaged could cover amongst others:

? criminality falling below the thresholds set out in paragraph 398 of the Immigration Rules;
? a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules."

17. Accordingly, whilst the judge's decision could in parts have been better expressed, I find nothing in it amounting to an error of law requiring it to be set aside. It is clear that the judge applied the correct legal tests and considered all relevant matters. On the evidence before him he was perfectly entitled to reach the conclusions that he did.

18. The appellant produced, at the hearing, further evidence relating to the medical condition of his second child who was born after the hearing before Judge Coates. Clearly that was not evidence which was before the First-tier Tribunal nor evidence that existed at the time and therefore it is of no relevance to the error of law question. It is open to the appellant to make representations to the Home Office with that further evidence, which he will no doubt do, but for the purposes of the appeal before me, it is not evidence that I can take into account.

19. For all of these reasons I find no merit in the grounds and I uphold the decision of the First-tier Tribunal.

DECISION

20. The making of the decision of the First-tier Tribunal did not involve an error on a point of law requiring it to be set aside. The decision to dismiss the appeal stands.

Signed
Upper Tribunal Judge Kebede Dated: