Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: ia/36311/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29th July 2016
On 22nd August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

manisha uprety
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Al Arayn, Counsel instructed by Farani-Javid-Taylor Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Nepal whose date of birth is recorded as 1st July 1986. She entered the United Kingdom in 2009 with leave as a student. That leave was extended on two occasions until 2nd August 2014. On 6th December 2013 she made application for leave to remain as a Tier 1 Entrepreneur but on 4th September 2014 a decision was made to refuse the application conjoined with a decision to remove her from the United Kingdom by way of directions pursuant to Section 47 of the Immigration, Asylum and Nationality Act 2006.
2. The Appellant appealed and her appeal which was "on the papers" was disposed of by Judge of the First-tier Tribunal Kaler on 4th January 2016. The appeal was dismissed. In considering the matter the judge had before her evidence produced by the Secretary of State that deception had been used in an earlier application such that reliance was to be placed on Rule 322(1A) of the Immigration Rules which provides for mandatory refusal.
3. Not content with the decision, by Notice dated 29th January 2016 the Appellant made application for permission to appeal to the Upper Tribunal. In short the grounds were that there were no sufficient evidence to justify the finding under 322(1A) and the judge had therefore erred in failing to engage with the substantive aspect of the appeal, namely whether or not the Appellant was a genuine applicant in respect o f the entrepreneurial application.
4. On 22nd June 2016 Judge of the First-tier Tribunal M Davies granted permission pointing to the case of R-v-Zaheer Hussain Mohammed (JR/6299/2014) it being arguable that the evidence relied upon by the Secretary of State was unsatisfactory. In fact the better guidance is to be found in SM and Ihsam Qadir-v-Secretary of State for the Home Department [2016] UKUT 00229 but the point remains the same.
5. Both representatives had had the opportunity to discuss this matter in advance of the matter coming before me and were in agreement that the evidence relied upon by the Secretary of State was deficient, not least because the judge did not have before him the witness statement of Rebecca Collings who is referred to at paragraph 3 of the witness statement of Peter Millington whose statement reads as follows:
"The witness statement should be read in conjunction with the witness statement of Rebecca Collings, who deals with the relationship between the defendant and ETS as well as the action taken by the defendant in response to information provided by ETS. I do not intend to touch on those points in any detail."
6. The essential point being taken by the Secretary of State was that an English language test relied upon by the Appellant was unreliable because it was being suggested that somebody else had taken the test in her stead. It is common ground that the burden of proof was upon the Secretary of State. Mr Walker accepts that the evidence was deficient. In those circumstances it was not open to the judge to make the finding made under 322(1A). There is clearly an error of law.
7. Because the judge felt compelled to dismiss the appeal because of the mandatory aspect of 322(1A) she did not go on to engage properly, if at all, with the application substantively which given the error already identified is a further error of law.
8. Having found an error of law it is necessary to decide whether or not to remake the decision or remit. Insofar as the matter relating to whether or not the Appellant was a general entrepreneur was concerned, that clearly needs properly to be canvassed. Mr O'Ryan has other evidence that he would wish to adduce. Mr Walker does not object and there appears to be common ground that the matter should return to the First-tier Tribunal.
9. I direct that it should be but with one qualification. The 322(1A) matter has been resolved as far as I am concerned and for the avoidance of doubt I remake the decision to that extent.
10. The Secretary of State has simply failed to prove, in this matter, to the requisite standard, that there was deception. The Secretary of State has had the opportunity to deal with the matter and it would not be right in my judgment to send this matter back to the First-tier Tribunal with all matters live. To that extent the appeal is allowed and remitted to the First-tier Tribunal to determine whether or not the Appellant is a genuine entrepreneur with the requisite funds being genuinely available to her with all the matters raised in respect of the 245 Rule being live but not, I repeat, anything to do with the deception alleged by the Secretary of State, which I resolve in the Appellant's favour.
11. No interpreter is required (given that the Appellant says there was no deception in respect of the language certificate. That is not surprising).
12. The matter will be listed for two hours, for oral hearing, at Taylor House, before any judge other than Judge Kaler.

Notice of Decision

The decision of the First tier Tribunal contained a material error of law and is set aside. As to whether there was deception I resolve that matter in the Appellant's favour. Otherwise this matter is remitted to the First-tier Tribunal to be remade in accordance with the directions contained at paragraphs 11 and 12 hereof. No anonymity direction is made.

Signed Date 19 August 2016

Deputy Upper Tribunal Judge Zucker