Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/43963/2014

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 31 October 2016
On: 29 November 2016

Before

Deputy Upper Tribunal Judge Mailer

Between

Mr Shah Khalid
no anonymity direction made
Appellant
and

secretary of state for the home department
Respondent
Representation

For the Appellant: Mr C Mannan, counsel (instructed by Britain Solicitors)
For the Respondent: Mr S Staunton, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals with permission against the decision of the First-tier Tribunal Judge promulgated on 21 March 2016, dismissing his appeal against the respondent's decision refusing him further leave to remain in the UK as a spouse under Appendix FM of the Immigration Rules.
2. The respondent contended that the appellant did not meet the suitability requirements for consideration of limited leave to remain in the UK as a partner or a parent. The Educational Testing Service - ETS - confirmed that the appellant's report test scores had been obtained through deception. As a result the validity of his test results could not be authenticated and his scores from the tests taken on 21 August 2016 were cancelled.
3. He was considered to be a person who has sought leave to remain in the UK by deception. He accordingly did not meet the suitability requirements in S-LTR.2.2(a) for consideration of limited leave to remain in the UK as a partner under E-LTRP and/or parent under E-LTRPT and/or on the grounds of private life under paragraph 276ADE.
4. Even if he did meet the suitability requirements, the respondent noted that the eligibility requirements would not be met. The respondent also gave additional consideration to the criteria of Appendix FM EX.1. There were no insurmountable obstacles to him continuing his relationship overseas.
5. With regard to the eligibility under paragraph 276ADE, he could not fulfil the criteria of paragraph 276ADE(vi) of the Rules. Nor were there other exceptional circumstances.
6. Mr Staunton for the respondent stated at the outset that there has been an error of law. The First-tier Judge stated that the ETS was irrelevant to the application appealed against, and that it was not necessary to consider, as contended by the respondent, whether it was obtained fraudulently.
7. Mr Staunton noted however, that this was a central point in the refusal. That assertion resulted in the respondent's contention that he failed to meet the relevant requirements under Appendix FM.
8. Accordingly, the Judge should have made a finding on that issue which formed the substance of the refusal. The respondent concluded that the appellant had not met the eligibility requirements as he had not met the suitability requirements - paragraph 14 of the Notice of Refusal dated 18 October 2014.
9. Mr Mannon accepted on behalf of the appellant that in the circumstances the appeal should be remitted to the first-tier tribunal for a fresh hearing.
10. It was also contended by Mr Mannon that the Judge erred with regard to his findings in respect of the financial requirements as this had not been an issue in the notice of refusal. In granting permission to appeal, Upper Tribunal Judge Grubb, noted that the refusal letter did not engage with the financial requirements. It is not apparent that the appellant was given an opportunity to provide the required documentation, which he claimed existed. The Judge nevertheless made specific adverse findings in the absence of these documents.
Assessment
11. The Upper Tribunal had at an earlier hearing found that First-tier Tribunal Judge Thankey had erred in his decision promulgated on 9 April 2015 when he allowed the appellant's appeal on the basis that the respondent's decision was not in accordance with the law.
12. Judge Thankey stated that the appellant did not rely on the English test certificate of 21 August 2012. He relied instead on the Trinity College London English Language Examination report dated 9 August 2014 which he passed prior to the submission of his application. The respondent failed to consider the more recent English language test certificate. That was found not to be in accordance with the law and the matter was remitted to the respondent to make a lawful decision.
13. Following that outcome, the respondent was granted permission to appeal to the Upper Tribunal on the basis that it was arguable that the Judge erred in finding that the respondent had not produced sufficient evidence to show that the appellant had used deception in his ETS tests. Upper Tribunal Judge Storey stated that he did not see the grounds are any less arguable because the appellant sought to rely on a more recent Trinity English Language Test, as the Rule under which he was refused (S-LTR.2.2) was based on past use of deception in tests taken on 21 August 2012.
14. The matter was remitted for a fresh decision to be made on all issues.
15. The respondent has contended in the refusal decision dated 18 October 2014 that the appellant was considered to be a person who has sought leave to remain in the UK by deception following information from ETS. That resulted in his inability to meet the suitability requirements for limited leave as the partner or a parent or on the grounds of private life.
16. Both parties agreed at the hearing before me that the central plank relating to the alleged deception should have been considered by the first-tier Tribunal. It was a finding that had significant implications for the appellant's current as well as his future immigration status. In the circumstances the representatives agreed that there has been a material omission, resulting in an error of law. I accept that submission.
17. I accordingly set aside the decision and directed that the appeal should be remitted to the First-tier Tribunal to be re-heard.
18. It was unfortunately not possible to fix an agreed hearing date at the hearing.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
The case is remitted to the First-tier Tribunal (Hatton Cross) for the case to be re-heard on a date to be fixed before a different Judge. The appellant has indicated that two witnesses are to be called, with a time estimate of two and a half hours.
No anonymity direction is made.

Signed Date 26 November 2016
Deputy Upper Tribunal Judge C R Mailer