Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/30571/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 December 2016
On 05 January 2017

Before

UPPER TRIBUNAL JUDGE BLUM

Between

Secretary of State for the Home Department
Appellant
and

M A
(anonymity direction made)
Respondent

Representation:
For the Appellant: Mr P Armstrong, Home Office Presenting Officer
For the Respondent: Mr E Wilford of Counsel instructed by Premier Solicitors

DECISION AND REASONS

1. This is an appeal by the Secretary of State (the Appellant) against the decision of Judge of the First-tier Tribunal Heatherington, promulgated on 11 October 2016, allowing the appeal of Mr M A (the Respondent) against a decision by the respondent to refuse him leave to remain as the spouse of a British national.

2. The Respondent is a national of Pakistan, date of birth 26 February 1986. He applied for leave to remain on the basis of his relationships with his wife, whom he married on 13 May 2014, and his stepchildren. The application was refused in a letter dated 24 August 2015. The Appellant refused the application, inter alia, on the basis that the Respondent had used deception in obtaining an ETS English language certificate in circumstances where it was alleged that a proxy tester had taken his place. The Appellant's decision accepted that there would be insurmountable obstacles to the family life continuing outside the United Kingdom as understood by Appendix FM. This was because the Respondent's wife had two children with her estranged partner and the children continued to have a relationship with their father. If the Respondent was removed and his wife required to relocate with him in order to maintain their relationship her young children's relationship with their biological father would be severed (the Appellant accepted that the Respondent's step-children maintained a genuine and subsisting relationship with their father, who had access rights).

3. The Appellant was tardy in the extreme in providing support for her claim that a proxy tester was used and it was not until the date of the hearing itself that the Presenting Officer sought to produce statements from Peter Millington, Rebecca Collings, Manzoor Hussain and Professor Peter French. It is fair to say that the judge was unimpressed with the Appellant's failure to comply with directions and her failure to respond to two letters from the Respondent's solicitors, dated 12 and 24 August 2016, requesting evidence in support of the allegation. The judge noted that there was no application by either party to adjourn the hearing. There was no evidence in the decision or on the Tribunal file that there was any objection to the new evidence being provided. The judge considered whether to admit the evidence under the Tribunal Procedure (First-tier Tribunal) Immigration and Asylum Chamber Rules 2014. The judge made reference to Rule 2:

"(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues."

The judge indicated that he had examined all the factors identified in Rule 2 and noted the responsibility on each party to ensure that the hearing would proceed when it is listed. The judge found that the Appellant had more than enough time to serve the statements and in these circumstances the judge refused to admit the extra evidence and was satisfied that he could do justice without it. The judge went on at 7.2 to state thus:

"The respondent asserts that the appellant obtained an English language certificate by deception. I have considered the evidence as a whole. I have considered paragraph 58 of SM and Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT 229 (IAC). The Secretary of State has failed to discharge the legal burden of proving dishonesty on the part of the appellant. Thus, refusal on suitability grounds is not made out."

4. The judge then noted that the Respondent's wife was British and recorded the Appellant's acceptance that her relationship was genuine and subsisting and that there were insurmountable obstacles to family life continuing outside the United Kingdom. The judge then went on to consider Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 which sets out public interest considerations that have to be taken into account in the proportionality exercise. The judge concluded that the Respondent had stepped into the shoes of the children of his partner and that he had taken on a parental role to his step children. The judge was satisfied therefore that it would be disproportionate to remove the Respondent and allowed the appeal under Article 8.

5. The Appellant took issue with the judge's refusal to admit the statements from Peter Millington, Rebecca Collings, Mansoor Hussain and the report from Professor Peter French. She argued that the judge failed to give any reasons for his conclusion that the evidential burden had not been discharged by the Secretary of State in light of his failure to admit the documents. The Secretary of State also complained of a material misdirection in law by the judge relating to his assessment of Article 8 and, in particular, Section 117B(6) in relation to his parental role with his stepchildren.

6. Mr Wilford has invited me to find that the judge acted entirely rationally and fairly in excluding, in particular, the two statements of Mr Millington and Ms Collings. He reminded me that there had been two requests for ETS evidence from the Respondent's solicitors but the Appellant had not responded to these requests. He reminded me that there was a failure to comply with the standard directions and he invited me to find that it would have been unfair for the judge to have allowed the evidence to be adduced at this stage even in the absence of any note of objection by Mr Aqeel's Counsel. The refusal to admit did not undermine the fairness of the decision.

7. Whilst I have great sympathy for the judge given the Appellant's failure to comply with directions, I am satisfied, certainly in relation to the statements from Millington and Collings, that he did err in law in refusing to admit them. This is because the statements, albeit generic, were considered in detail by the President of the Upper Tribunal in SM & Qadir (ETS - Evidence - Burden of Proof) [2016] UKUT 229. There was little rational basis for the judge not admitting evidence that went to the very core of the Appellant's decision and upon which she relied in the ETS cases. It made no sense for the judge to have refused to admit the evidence of those two individuals given that he would have had to consider the same evidence when considering and applying the principle enunciated in SM & Qadir. I additionally take into account the absence of any evidence of any objection being recorded to the admission of that evidence and to the absence of any application by either representative to adjourn. In these circumstances I find the judge was not entitled to have refused to admit the two statements in question under Rule 2 of the Procedure Rules. Given that the statements went to the core of the issues I am satisfied there was procedural unfairness by the judge.

8. Having "considered the evidence as a whole" (at 7.2) the judge then found that the evidential burden had not been discharged. I am satisfied that this conclusion was one the judge was not entitled to reach in light of my finding that he erred in law in not admitting the generic statements. Had the judge admitted the statements it is very likely that the evidential burden would have been discharged and that the Respondent would have been required to provide an explanation.

9. In these circumstances it is appropriate for the matter to be remitted back to the First-tier Tribunal, to a judge other than Judge Heatherington, to be considered in light of the statements and other evidence adduced by the Respondent.

Notice of Decision

The Secretary of State for the Home Department's appeal is allowed; the matter is remitted back to the First-tier Tribunal, before a judge other than Judge Heatherington, to consider the evidence the Secretary of State sought to introduce relating to the ETS issue.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Respondent is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

04 January 2017

Signed Date

Upper Tribunal Judge Blum