Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/38567/2014

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On : 25 January 2017
On : 26 January 2017

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

tejinder pal singh gill
Respondent

Representation:
For the Appellant: Mr P Duffy, Senior Home Office Presenting Officer
For the Respondent: Mr R Rai, instructed by Gills Immigration Law

DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department against a decision of First-tier Tribunal Judge Webb allowing Mr Gill's appeal against the respondent's decision to remove him from the UK following the refusal of his human rights claim.

2. For the purposes of this decision, I shall refer to the Secretary of State as the respondent and Mr Gill as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.

3. The appellant is a national of India born on 15 May 1986. He entered the United Kingdom on 12 January 2010 on a Tier 4 student visa valid until 18 November 2011 and was granted further leave to remain as a Tier 4 student until 16 September 2013. On 11 August 2012 his leave was curtailed to expire on 10 October 2012, following the revocation of his sponsor's licence. He made another application on 9 October 2012 for Tier 4 leave and was granted leave until 24 February 2014. With that application the appellant submitted an ETS TOEIC English language certificate. Following his marriage on 21 December 2014 to Sarandeep Birk, a British citizen, the appellant made an application for leave to remain in the UK as the spouse of a settled person. His application was rejected as invalid due to non-payment of the fee, and he then made another application on the same basis on 4 March 2014. That application was refused by the respondent in a decision dated 6 September 2014.

4. The respondent, in refusing the application, considered that the appellant could not meet the criteria in Appendix FM or paragraph 276ADE under the suitability requirements, as he was considered to have sought leave to remain by deception in his application of 9 October 2012 in relation to the English language test taken on 12 September 2012. The respondent also considered that the appellant could not meet the criteria in EX.1(b) as a partner as he had failed to show that there were insurmountable obstacles to family life continuing in India, he could not show that there were very significant obstacles to integration in India for the purposes of paragraph 276ADE(1), and there were no exceptional circumstances justifying a grant of leave outside the immigration rules on wider Article 8 grounds.

5. The appellant appealed against that decision and his appeal was heard by First-tier Tribunal Judge Webb on 20 April 2016. By the time of the appeal hearing, the appellant and his wife had had a child, a son born on 8 September 2015, who was a British citizen.

6. Judge Webb concluded that the respondent had failed to meet the legal burden of proving dishonesty and that the appellant therefore met the suitability requirements in section S-LTR of Appendix FM. Whilst he considered that the appellant was unable to qualify as a partner under the five-year route as a result of an inability to meet the financial requirements therein, he concluded that he could qualify under the ten-year route as he was able to meet the criteria in EX.1(a). He concluded that it would not be reasonable for the appellant's son to leave the UK. Accordingly he allowed the appeal under the immigration rules on Article 8 grounds.

7. Permission to appeal was sought by the respondent on the grounds that the judge had failed to provide adequate reasons for concluding that the Secretary of State had failed to meet the legal burden of proving dishonesty and had failed to provide adequate reasons for concluding that there were insurmountable obstacles to family life continuing in India and that it was unreasonable for the appellant's son to leave the UK.

8. Permission to appeal was initially refused in the First-tier Tribunal, but was subsequently granted in the Upper Tribunal on 21 November 2016.

9. At the hearing both parties made submissions before me. Whilst Mr Duffy submitted that the judge's decision was inconsistent with the approach in SM and Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT 229, Mr Rai argued that it was.

10. In fact it is not at all clear from [18] of his decision whether the judge misunderstood the shifting burden of proof as set out in SM and Qadir, or whether he simply omitted to give any reasons as to why the legal burden had shifted to the respondent. It may be that he took it as read that the evidential burden of proof had been met by the respondent and indeed Mr Duffy accepted that he was bound to find that that was the case. However he then jumped to the conclusion that the legal burden had not been met by the respondent without first considering, or at least giving any indication that he had considered, whether the appellant had met the evidential burden of raising an 'innocent explanation', as required in SM and Qadir (see [68]). It was Mr Rai's submission that that consideration was given in [10] and [11]. However, whilst those paragraphs contained the appellant's evidence in response to the deception allegation, including evidence of his English language ability, they were not findings made by the judge, and at no point in his decision did the judge actually assess the evidence and weigh it up against the evidence the respondent. That assessment has still to be undertaken and accordingly the judge's conclusions on the appellant's ability to meet the suitability requirements in section S-LTR of Appendix FM cannot be sustained and must be set aside.

11. Furthermore, and on the basis that those conclusions plainly impact on the question of "reasonableness" for the purposes of EX.1(a) of Appendix FM and the consideration of Article 8 outside the rules, the judge's findings in that respect cannot be sustained.

12. Both parties agreed that if an error of law were to be found, the appropriate course would be for the case to be remitted to the First-tier Tribunal for a complete rehearing of the appeal. That must be the case.

DECISION

13. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The Secretary of State's appeal is allowed. The decision is set aside in its entirety. The appeal is remitted to the First-tier Tribunal, to be dealt with afresh, pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), before any judge aside from Judge Webb.

Signed

Upper Tribunal Judge Kebede