Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30247/2015

THE IMMIGRATION ACTS

Heard at Manchester
Sent to all parties
On October 28, 2016
On November 16, 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AHSAN [R]
(NO ANONYMITY DIRECTION MADE)
Respondent

Representation:
Appellant Mr McVeety (Home Office Presenting Officer)
Respondent Ms Faryl, counsel, instructed by MA Consultants

DECISION AND REASONS
1. The respondent in these proceedings was the appellant before the First-tier Tribunal. From hereon I have referred to the parties as they were in the First-tier Tribunal so that for example reference to the respondent is a reference to the Secretary of State for the Home Department.
2. I do not make an anonymity order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).
3. The appellant is a national of Pakistan. On April 4, 2011 the appellant entered the United Kingdom as a Tier 4 (General) Student with a visa valid until September 30, 2011. On March 29, 2012 his leave was curtailed until May 28, 2012 but he was then granted leave to remain as a Tier 4 (General) Student until October 31, 2014. On December 2, 2013 the appellant married a British citizen, [MS], and on June 26, 2014 their daughter was born.
4. On October 10, 2014 he submitted an application to remain on family and private life grounds but his application was refused with a right of appeal on August 21, 2015.
5. The appellant appealed that decision on September 7, 2015 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and his appeal came before Judge of the First-tier Tribunal Henderson (hereinafter referred to as "the Judge" on January 27, 2016. In a decision promulgated on February 10, 2016 she allowed his appeal under the Immigration Rules and human rights grounds.
6. The respondent appealed the Judge's decision on February 24, 2016 and permission to appeal was granted by Judge of the First-tier Tribunal Grant on July 21, 2016. She found that it was arguable the Judge had erred by failing to give adequate findings for finding the respondent had not met the burden of proof required. Permission was further given on the article 8 decision on the basis the decision was flawed
7. The matter came before me on the above date and on that occasion I heard submissions from both representatives.
SUBMISSIONS
8. Mr McVeety adopted the grounds of appeal and submitted that the Judge had approached the case incorrectly. She approached the facts on the basis the respondent had not demonstrated a case when it is clear from the decision of SM and Qadir v Secretary of State for the Home Department (FTS-Evidence-Burden of Proof) [2016] UKUT 229 (IAC) that the respondent had met its burden and the Judge should then have considered whether the appellant demonstrated he had not used a proxy to take his test. The Judge erred because she only examined the respondent's evidence as against considering the appellant's own evidence. If there as an error on the first ground then that error would infect the Judge's article 8 approach.
9. Ms Faryl submitted the grounds of appeal amounted to a mere disagreement. The Judge carefully considered the respondent's evidence and then stated at paragraph [25] of her decision why she preferred the appellant's account. She argued that although the Judge did not detail the appellant's claim it could be inferred she preferred it.
DISCUSSION AND FINDINGS
10. In granting permission to appeal Judge of the First-tier Tribunal Grant identified arguable errors of law.
11. In paragraph [20] the Judge erroneously stated the appellant had failed his first test. The Judge then proceeded to outline the respondent's evidence and stated she was aware of the decision of Gazi (R on the application of Gazi) v SSHD (ETS-Judicial Review) IJR [2015] UKUT 00327 (IAC).
12. The courts in both Gazi and Qadir accepted the respondent had just met the burden on her. That being the case the appellant had to discharge the burden of proof and demonstrate he did not use a proxy to take his test.
13. The Judge considered this issue between paragraphs [10] and [36] but it is clear that all the judge did in those paragraphs is to consider the respondent's evidence and effectively she re-examined the evidence that the courts in Gazi and Qadir had done. This was not what she was required to do. The only reference to the appellant is in four lines in paragraph [36]. No examination of his account has been undertaken.
14. In the circumstances I find there is an error in law. This error affected both decisions and I set aside both decisions.
15. Both representatives agreed that the case should be remitted to the First-tier Tribunal.
DECISION
16. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law. I set aside the decision.
17. The appeal is remitted back to the First-tier Tribunal for these issues to be addressed hearing under Section 12 of the Tribunals, Courts and Enforcement Act 2007.
18. The matter should not be listed before Judge of the First-tier Tribunal M Davies. Ideally, this matter should be listed before myself in the First-tier but I leave that to the listing department to decide if that is necessary.
19. I direct that the appellant (and his wife, if deemed necessary, must file and serve on the Tribunal and respondent a statement setting out why he says he did not use a proxy to take his tests. He/they should provide as much information as possible and this evidence along with any policy information should be served not less than fourteen days before the next hearing date.

Signed: Dated:

Deputy Upper Tribunal Judge Alis