Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/31878/2015
ia/31879/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 November 2016
On 7 December 2016

Before

UPPER TRIBUNAL JUDGE BLUM

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

harpreet kaur batra
Mandeep Singh
(anonymity direction not made)

Respondents

Representation:

For the Appellant: Mr Bramble, Senior Home Office Presenting Officer
For the Respondent: Mr H Singh, of Osmans Solicitors

DECISION AND REASONS

1. This is the appeal by the Secretary of State for the Home Department (hereinafter the Appellant) against a decision by Judge of the First-tier Tribunal Frankish who, on 15 April 2016, allowed to a limited extent the appeal of Mrs Harpreet Kaur Batra (the Respondent) and her dependent partner against a decision of the Appellant to refuse an application for Further Leave to Remain (FLR) as a Tier 4 Student which was made on 14 September 2015.

Background

2. The Respondent and her partner first entered the UK in 2009 pursuant to entry clearances issued as a Tier 4 (General) Student and dependant. That leave was valid until 29 November 2011. The Respondent was granted FLR valid until 30 September 2012. That leave however was curtailed in June 2012 so that it expired on 26 August 2012. The Respondent then made an in-time application on 20 July 2012 for FLR. This was based on her acceptance for studies at St Albans College Limited. When she made her application she had been issued with a CAS (Confirmation of Acceptance for Studies) that was valid at the time.

3. This application was refused and an appeal initiated but the Appellant reconsidered the application and made her decision refusing the application on 14 September 2015. The basis for the Appellant's refusal of the application for FLR was two-fold. Firstly, the Appellant refused the application under paragraph 322(1A) of the Immigration Rules on the basis that the principal Respondent had used a false TOEIC certificate obtained from ETS, an organisation who provided facilities for the testing of English. According to the Appellant ETS had provided information to her that a proxy tester had taken the test for the Respondent. The refusal letter made specific reference to the college where the test was taken and the particular date and the certificate number relating to the test. ETS had used voice verification software and concluded that the Respondent's test was invalid due the presence of a proxy tester.

4. The Appellant also refused the application on the basis that there was no valid CAS. When the sponsor register was checked on 14 September 2015 St Albans College was not listed. As a result the Respondent was not awarded 30 points and could not meet the requirements for FLR as a Tier 4 Student.

The decision of the First-tier Tribunal

5. The judge heard the Respondent's appeal on 13 April 2016. There was no appearance by the Appellant. The Respondent provided a lengthy an bundle of documents. In a brief decision the judge noted that he had been provided with a copy of SM and Qadir and Secretary of State for the Home Department (ETS - evidence - burden of proof) [2016] UKIAT. This is a reference to a decision that was not, at that date reported. It was a case heard by a panel of the Upper Tribunal including the President of the Upper Tribunal and dealt in great detail with the generic evidence that was relied on by the Appellant in ETS cases. This decision was later reported with the citation - SM and Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT 00229 (IAC).

6. The judge, at paragraph 8, accepted that the copy he had been provided had not yet been formally promulgated. It had however come to the attention of the Respondent's representative and the judge did rely on the Presidential decision.

7. At paragraph 9, having considered the copy of Qadir that he had been provided the judge, stated:

"I have no difficulty in accepting that the [Respondent] is one of the untainted applicants. The [Respondent] has a plethora of unchallenged IELTS English language test certificates starting with the one she took in India on 18 August 2008. Since then her score have been relatively consistent although her spoken element demonstrates the improvement one would expect."

8. The judge found that the Appellant failed to discharge the legal burden of proving that a proxy tester had been used. The judge then went on to find that the Appellant's decision was, in effect, 'not in accordance with the law' (although the judge does not use that particular term) because the CAS that had been awarded to the Respondent, which was valid at the time of the application, was no longer valid and because the Respondent had not been provided with any opportunity, following the decision in Patel (revocation of sponsor licence - fairness) India [2011] UKUT 211 (IAC), to obtain entry to another college.

The Grounds of Appeal and the grant of permission

9. The Appellant, aggrieved with the decision, sought permission to appeal. No issue was taken with the second aspect of the judge's conclusion (his decision that the decision was not in accordance with the law because of procedural unfairness). It was contended that the judge failed to follow paragraph 11 of the Practice Directions appertaining to the Immigration and Asylum Chambers of the First-Tier Tribunal and the Upper Tribunal, which concerns the citation of unreported cases.

10. It was submitted that the Tribunal failed to acknowledge that the Presidential decision upon which it relied was unreported and that no permission was given for the unreported version, which had not been formally promulgated, to be adduced. This was said to be material because, had it been brought to the attention of the First-tier Tribunal that the decision was unreported, it did not follow that the First-tier Tribunal would have granted permission for it to be cited. By the date of the promulgation on the First-tier Tribunal's decision SM and Qadir was still not promulgated and was only promulgated on 21 April 2016. It was submitted that, in any event, SM and Qadir was not declaratory of the law and that, and I find this somewhat hard to follow, the Upper Tribunal decision had 'no retrospective effect'.

11. It was further argued that if the Respondent wished to rely upon the unreported decision of SM and Qadir the Appellant should then be afforded the opportunity of relying upon a report by Professor French that was attached to the grounds French which was said to supersede the report of Dr Harrison relied on by the President in SM and Qadir.

Discussion

12. I accept that the judge erred in law. Regardless of the fact that the unreported case presented to him was one of a panel including the President, it nevertheless remained unreported and therefore subject to the Practice Directions. No application was made by the representative to cite the unreported decision and no consideration was given by the First-tier Judge to the relevant Practice Direction.

13. I am not however satisfied that this error is material. There is no suggestion that the unreported decision relied on by the judge materially differed in any way from the version of SM and Qadir that was eventually reported. Had the judge considered the reported version he would, in my judgement, inevitably have reached exactly the same conclusion.

14. Although brief, the consideration given by the judge in paragraph 9 of his decision adequately demonstrated the reasons why he found that the evidence produced by the Respondent, which was specific and particular to her, was sufficient to prevent the Appellant from discharging both the evidential and legal burden.

15. The grounds of appeal contend that the Respondent ought to have been given the opportunity to rely upon a report from Professor French. I find this entirely misguided. This report by Professor French was not before the judge when his decision was made. The content of SM and Qadir, including the President's assessment of the quality of the Respondent's evidence, was before the judge.

16. As the grounds do not take any issue with the basis upon which the judge allowed the appeal on the limited basis that it was not in accordance with the law and requiring the Secretary of State to give the applicant an opportunity of producing the relevant CAS I find that the grounds of appeal are not made out and the initial decision stands.

Notice of Decision

The Secretary of State for the Home Department's appeal is dismissed.
The Secretary of State's decision was not in accordance with the law and Mrs Batra's application remains outstanding, awaiting a lawful decision by the Secretary of State.

No anonymity direction is made.

Signed Date
Upper Tribunal Judge Blum 06 December 2016