Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31541/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 11th October 2016
On 12th October 2016

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR ARSLAN GHAFOOR
(ANONYMITY ORDER NOT MADE)

Respondent
Representation:

For the Appellant: Ms Z Ahmad, Senior Home Office Presenting Officer
For the Respondent: Ms K Parker, Counsel instructed by Qualified Legal Solicitors

DECISION AND REASONS

Introduction

1. The claimant is a citizen of Pakistan born on 19th March 1991. He arrived in the UK on 31st October 2010 as a Tier 4 student migrant with leave to enter valid until 17th May 2013. On 16th May 2013 he applied to extend his leave to remain as a Tier 4 student migrant. This application was refused on 3rd September 2015. His appeal against the decision was allowed under the Immigration Rules by First-tier Tribunal Judge Frazer in a determination promulgated on the 29th March 2016.
2. Permission to appeal was granted by Designated Judge of the First-tier Tribunal Appleyard on the 26th August 2016 on the basis that it was arguable that the First-tier judge had erred in law in law in failing to give adequate reasons for why the Tribunal found that the claimant had not exercised deception given the specific evidence which identifies him as having done such.
3. The matter came before me to determine whether the First-tier Tribunal had erred in law.
Submissions - Error of Law & Remaking
4. The Secretary of State argues firstly that the First-tier Tribunal erred by failing to appreciate that the witness statements and extract from the spread sheet do assist the Secretary of State's case, contrary to what is said at paragraph 21 of the decision. They show how the claimant was identified by ETS as someone whose test was invalid. It was not correct therefore to say that there was no evidence of deception against this claimant, as is done at paragraphs 19-21 of the decision and the engagement with the evidence by the First-tier Tribunal was superficial and shallow.
5. The Secretary of State argues that their evidence was sufficient to find on the balance of probabilities that the claimant used deception and the Tribunal ought therefore to have properly done so.
6. Secondly the Secretary of State argues that as the claimant had no valid English test and no valid CAS he could not meet the requirements of the Immigration Rules and thus that the appeal should not have been allowed on this basis, and further that there was no requirement of fairness, in accordance with Thakur (PBS decision - common law fairness) [2011] UKUT 151, that he given extra time now to retake an English test and find another sponsor, or other evidence that the decision of the respondent was not in accordance with the law. Thakur is an old case, and the authority of EK (Ivory Coast) v SSHD [2014] EWCA Civ 1517 held that even if a CAS ceased to be valid whilst an application was pending this did not make a decision in breach of common law rules of fairness if the claimant was not given an opportunity to obtain a further CAS. As a result the appeal could not be allowed on the basis that the decision was not in accordance with the law.
7. Ms Parker argued for the claimant that the decision on deception was well argued by the First-tier Tribunal and no error existed in this decision. She accepted that it was an error to say the appeal was allowed under the Immigration Rules, as the claimant had no CAS or English certificate, but maintained that it should have been allowed as not in accordance with the law as this was said to be the case at paragraph 23 of the decision. She maintained that the decision was reasoned as there was reliance on the delay in decision-making of 19 months by the respondent and the revocation of the CAS which she believed had happened as a result of this delay.
Conclusions - Error of Law
8. The First-tier Tribunal found that the claimant had given credible evidence that he had taken the TOIEC tests as he was able to describe the tests he took in detail, see paragraph 22 of the decision. The First-tier Tribunal also makes criticisms of the Secretary of State's evidence that were rationally open to the Tribunal at paragraph 21 such as it being produced on information from ETS which had not been tested by the Secretary of State and that the witnesses did not have expert understanding of the issues involved. It is correct that there is a possibility of false positives according to that evidence, and also that the specific evidence from ETS does not say that the claimant had obtained his test result by deception but only that ETS had invalidated his test result. The weight to be given to evidence is a matter for the Tribunal and is was rationally open to the First-tier Tribunal to find that the evidence of deception was not sufficient to show this on the balance of probabilities, as indeed happened in SM & Qadir v SSHD (ETS- evidence- burden of proof) [2016] UKUT 229.
9. However I find that the First-tier Tribunal has fallen into error in finding that the claimant was entitled to succeed under the Immigration Rules when he had no CAS or valid English language certificate. He could clearly not fulfil the requirements of the Immigration Rules at paragraph 245ZX (c) and (d) of the Immigration Rules to remain as a Tier 4 student migrant without these documents. If common law fairness was engaged then the appeal should have been allowed as the decision was not in accordance with the law, so that the matter was remitted to the Secretary of State for a fresh decision, not outright under the Immigration Rules. I find also that there is insufficient reasoning at paragraph 24 to justify a finding that the Secretary of State had acted in a way contrary to the common law duty of fairness in the decision-making process.
10. I therefore preserve the findings of the First-tier Tribunal that the claimant had not submitted a false document in the form of his TOEIC English certificate and so did not fall to be refused under paragraph 322(1A) and paragraph 245ZX (a) of the Immigration Rules. But set aside the finding that the decision of the respondent was not in accordance with the law; the decision that there was any breach of the common law duty of fairness; and the decision allowing the appeal under the Immigration Rules.
Conclusions - Remaking
11. The only issue that I must remake is whether the appeal should be dismissed or allowed as not in accordance with the law on the basis of the common law duty of fairness. As Ms Ahmad rightly submitted the Court of Appeal in EK (Ivory Coast) holds that the common law duty of fairness does not mean that a claimant is entitled to an opportunity to comment on a withdrawal of a CAS prior to a refusal decision and to be given the opportunity to replace the CAS with another one in circumstances where he is not responsible for the withdrawal. I also do not see any reason why a delay in 19 months between application and decision means that a decision is not in accordance with the law, or that in any way adds to the situation with the withdrawal of the CAS.
12. I also note, although this is not a factor in my decision-making, that the claimant would appear to be able to make a new Tier 4 student application at this point if he assembles all the relevant documentation so long as this is made within 28 days of the expiry of his leave, see paragraph 245ZX (l) of the Immigration Rules.
13. In these circumstances I must dismiss the claimant's appeal as he does not have a valid CAS and therefore cannot satisfy the requirements to have sufficient points under Appendix A or Appendix C and thus does not meet the requirements of paragraph 245ZX of the Immigration Rules; and there are no other matters which mean that the decision of the respondent is not in accordance with the law.

Decision:

1. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

2. I set aside the decision of the First-tier Tribunal allowing the appeal.

3. I re-make the decision in the appeal by dismissing it.

Signed: Fiona Lindsley Date: 11th October 2016
Upper Tribunal Judge Lindsley