Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/33754/2014

THE IMMIGRATION ACTS

Heard at: Field House
Decision Promulgated
On: 1st August 2016
On: 3rd August 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Secretary of State for the Home Department
Appellant
And

Kehinde Kolawole Jegede
(no anonymity direction made)
Respondent

For the Appellant: Ms Isherwood , Senior Home Office Presenting Officer
For the Respondent: Mr Adewoye, Prime Solicitors

DECISION AND REASONS

1. The Respondent is a national of Nigeria date of birth 12th April 1975. On the 30th November 2015 the First-tier Tribunal (Judge NJ Bennett) allowed his appeal, on human rights grounds, against a decision to refuse to grant him leave to remain and to remove him from the United Kingdom pursuant to s47 of the Immigration, Asylum and Nationality Act 2006. The Secretary of State now has permission to appeal against that decision.
2. The matter in dispute between the parties was whether the Respondent should be granted leave to remain on Article 8 grounds on the basis that his removal would be a disproportionate interference with his family life with his wife and children. The Secretary of State had refused his application under the 'five-year route to settlement' in Appendix FM of the Rules because the Respondent had failed to provide the 'specified evidence' relating to family income, had not produced the requisite English language certificate. Consideration had been given to whether the Respondent could, in the alternative, qualify for the 'ten-year route to settlement' by showing one or more of the exceptions in EX.1 to apply. Although it was accepted that the Respondent has children in the UK they were neither British nor had they lived in the UK for seven years or more. Finding there to be no exceptional circumstances such that leave should be granted outside of the framework set down in Appendix FM, leave was refused.

3. When the matter came before the First-tier Tribunal the Home Office Presenting Officer conceded that the requirements as to the 'minimum income threshold' and the specified evidence required to prove it were all met. The only live issue was whether the Respondent had a valid English language test certificate issued by an accredited body. He didn't. He had submitted a certificate issued by the 'English Speaking Board' but this was not an organisation listed in Appendix O of the Immigration Rules. He could not therefore qualify for leave under the 'five-year route to settlement'. The Tribunal went on to consider the 'exceptions' at EX.1. It found that his two children were then aged 6 and 4. Neither were British (although an application had been made). Neither had lived in the UK for seven years. They were not therefore considered to be "qualifying" within the meaning of the Rules. The Tribunal did not in any event consider that it could be shown that it would be unreasonable to expect either child to leave the UK. In respect of the Respondent's wife the Tribunal found that as a native Yoruba speaker who had grown up in Nigeria there would not be insurmountable obstacles to her integration there. The Respondent therefore failed under the two alternative limbs of EX.1. The determination then reads:

"I therefore turn to Article 8 outside the confines of the Immigration Rules. I accept that the Appellant has a family and private life in this country and that the real question is whether removal in the interests of enforcing immigration control would be a proportionate interference with his family and private life. I am required to have regard to the interests of all parties affected by the decision including, therefore, the interests of the wife and children. The children's interests are a primary consideration, because they are minors, but their interests are not the only consideration. Their interests therefore have to be balanced against the other competing considerations"

The Tribunal then gives consideration to the factors listed in s117B of the Nationality Immigration and Asylum Act 2002, paying particular attention to the fact that it is in the public interest that applicants can speak English. Having done so it allowed the appeal on human rights grounds.

4. The Secretary of State now appeals on the grounds that the First-tier Tribunal has failed to identify good reasons why this was a case which merited consideration 'outside of the Rules'. The failure to meet the requirements in respect of the English language was a substantial omission and one which attracted a good deal of weight in terms of the public interest: R (on the application of Ali and Bibi) v Secretary of State for the Home Department [2015] UKSC 68. It is submitted that the determination fails to adequately explain why this appellant should be granted permission to remain over and above others in the same class of applicants: SS (Congo) v Secretary of State for the Home Department [2015] EWCA Civ 387. I find all of these submissions to be well made. The fact that there might be some inconvenience to the Respondent in having to take a new test and apply again, from this country or Nigeria, was not a sufficient basis to find there to a disproportionate interference with his Article 8 rights, as this determination appears to do.

5. I therefore set the decision aside and remake it. The parties agreed that as an in-country appeal the relevant date for my enquiry is the date of hearing. It was further agreed that under the Rules the only matter in issue was the English language requirement set out at S-LTRP 4.1 of Appendix FM. The Respondent must demonstrate that he has passed a test in speaking and listening at level A1 of the Common European Framework of Reference for Languages.

6. Before me the Respondent produced three original documents. The first was a degree certificate awarded by the Ladoke Akintola University of Technology in Nigeria. It was awarded in 2005 and shows the Respondent to be a Master of Business Administration. The second and third documents are both issued by NARIC. There is a 'academic qualification level statement' issued on the 14th July 2016 which states that NARIC have carefully evaluated his degree certificate and found it to a qualification comparable with a British Masters degree. There is also an 'English language proficiency statement' which explains that NARIC consider the Respondent's degree to meet the requirements of CEFR at level 1.

7. The Respondent's explanation for the late production of that evidence was firstly that he had believed his original English language test certificate to have complied with the Rules. Having discovered that it did not, he was unable to take a new test because the Home Office would not return his passport to him. They had sent him a certified copy but he had been unsuccessful at trying to persuade any accredited English language school to let him take the test without an original identification document. Finally he had resorted to relying on his original Nigerian degree, taught entirely in English, but because of the "bureaucracy over there" it had taken some time for this to be provided, and it then had to be "converted" by UK NARIC.

8. Ms Isherwood very helpfully took instructions on the original documents provided and having done so agreed that these were sufficient to meet the requirements of the Rules. That being the only matter in issue, the appeal is allowed.

Decisions

9. The determination of the First-tier Tribunal contains an error of law and it is set aside.

10. The decision in the appeal is re-made as follows:

"The appeal is allowed under the Immigration Rules"

11. I was not asked to make a direction for anonymity and on the facts I see no reason to do so.

Upper Tribunal Judge Bruce
1st August 2016