Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: ia/31645/2015
IA/31648/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 October 2016
On 11th November 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

Secretary of State for the Home Department
Appellant
and

AMARVEERPAL KAUR
SUMANDEP SINGH
(anonymity direction not made)
Respondents

Representation:
For the Appellant: Ms A Brocklesby-Weller, Home Office Presenting Officer
For the Respondents: Mr A Sufian, Counsel instructed by Strand Chambers
DECISION AND REASONS
1. I see no need for and not make any order restricting reporting about this case.
1. This is an appeal by the Secretary of State against the decision of the First-tier Tribunal allowing an appeal by the present respondents (hereinafter "the claimants") against a decision of the Secretary of State on 14 September 2016 refusing them leave to remain in the United Kingdom. The first claimant was seeking leave as a student and the second claimant as her dependant husband.
2. I think that the unhappy saga of the involvement of ETS is now so well-known in our jurisprudence that it is sufficient if I refer to it for the purposes of explaining my decision, slightly colloquially, as "another ETS case". It must, of course, be decided on its own merits.
3. There were two points of contention before the First-tier Tribunal. The first was whether in fact the first claimant had obtained a test result improperly which is what the Secretary of State alleged. The second was whether she supported her application with a valid form CAS. I will deal with that point first because the answer is, in my judgment, quite clear.
4. The first claimant did not have a valid CAS. She said that she did not know that she did not have a valid CAS when she made her application because it had not come to her attention that her CAS had been cancelled by her college. That might be right but it is wholly irrelevant. The status of the CAS is a matter of fact and it does not require knowledge on the part of a claimant to maintain or extinguish its existence. The First-tier Tribunal Judge was just wrong to find for the claimant on that point. Her knowledge was immaterial. It follows therefore that I have to set aside the decision of the First-tier Tribunal and I have to substitute a decision dismissing both appeals.
5. I say at this point that Mr Sufian has been as helpful as he can be expected to have been but he really had no answer to that point. He says that it is the first claimant's case that it is not true to say that the CAS was cancelled by the college. Rather the college was suspended and so the CAS was invalid. He had some incomplete instructions to explain his submission but said that there were judicial review proceedings. He could not take the point any further and I decline to adjourn proceedings to given him another opportunity to develop it. This is a point that should have been sorted out before the First-tier Tribunal hearing.
6. His instructions were vague and although I certainly do not in any way criticise Mr Sufian for making an application I was not prepared to give him further time to deal with the point that should already have been anticipated and answered.
7. This still leaves the question of the finding that the claimant did not use an improperly obtained ETS certificate. I have to say that I find the Secretary of State criticisms of that finding are made out. The problem is at paragraph 30 of the First-tier Tribunal's decision where the judge said:
"I have regard to the ETS invalid Test Analysis. It gives no specific reason for the invalidation of the test. I have had regard to the statement of Rebecca Collins. This is a generic statement and, whereas I accept it supports the impersonation of ETS tests, it contains no information pertaining to the Appellant."
8. The Secretary of State maintained that this does not show proper consideration of the nature of the evidence in ETS cases. The fact that there was an ETS valid test analysis which the First-tier Tribunal Judge noted means that the test analysis has been picked up by a computer and then checked by two human agents acting independently and they were all satisfied that the test result could not be confidently attributed to the claimant. This is prima facie evidence that the test result was obtained improperly but the decision of the First-tier Tribunal Judge does not reflect this.
9. The decision does give proper reasons for accepting the first claimant's evidence. The claimant has now has passed an appropriate test and had a good command of English. That does not mean that she had the necessary command of English at the necessary time. Neither does it mean that she actually took the test but it certainly helps her case.
10. The judge also discounted the criticisms of the claimant for not knowing the name of the test centre which she attended. She gave an explanation which the judge found to be satisfactory.
11. This leads the finding that the claimant obtained her test result lawfully in an unsatisfactory state. It was supported by persuasive evidence but the decision was based on an understanding of the Home Office's evidence which is inadequate.
12. I have to set aside the entire decision and I make it plain I do not reserve the finding that the test certificate was obtained properly but neither do I make a finding that it was obtained improperly. I just do not know and I decline to take the matter any further because it is not my function to make findings on points that are not decisive because either or both of the parties would find it convenient. That is not the role of this Tribunal and I decline to do it. In my judgment the finding of the First-tier Tribunal that the ETS certificate was obtained properly is unreliable. It is based on a misunderstanding of the evidence and I set it aside.
13. I hope that it is clear from the above that I set aside and substitute a decision dismissing the appeal because the claimant did not have a form CAS and not because she has been shown to have relied upon an improperly obtained ETS certificate.
14. The second claimant's case follows the first claimant's case.
15. It follows that I allow the Secretary of State's appeal and I substitute a decision dismissing the appeals of the First and Second Respondent against the Secretary of State's decision.
Notice of Decision
The Secretary of State's appeal and I substitute a decision dismissing the appeals of the First and Second Respondent against the Secretary of State's decision.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 10 November 2016