Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: Ia/45044/2014

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 2 March 2016
On 7 April 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
And

KELA BEGUM
(anonymity direction NOT MADE)
Respondent

Representation:

For the Appellant: Miss. C. Johnstone, Home Office Presenting Officer
For the Respondent: Mr. A. Samad, Samad & Co. Immigration

DECISION AND REASONS

1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Lagunju, promulgated on 8 May 2015, in which she allowed Mrs. Begum's appeal against the Secretary of State's decision to the extent that she remitted it back to the Secretary of State for further consideration. Mrs. Begum applied for leave to remain on the basis of her family and private life.

2. For the purposes of this decision I refer to Mrs. Begum as the Appellant, and to the Secretary of State as the Respondent, reflecting their positions as they were before the First-tier Tribunal.
3. Permission to appeal was granted as follows:

"The judge found that the decision was not in accordance with the law because the respondent failed to consider the appellant's application for further leave to remain as a spouse under paragraph 284 of the Immigration Rules. In doing so the judge appears to have accepted a submission by the appellant that paragraph 284 contained no English language requirement.

In fact, as the grounds correctly point out, the respondent did refuse the application by reference to paragraph 284 in the letter of refusal. Moreover, as the grounds also point out, paragraph 284 did contain an English language requirement."

4. The Appellant attended the hearing. I heard oral submissions from both representatives, following which I reserved my decision.

Submissions

5. Miss. Johnstone relied on the grounds of appeal. The Appellant had applied for a visa extension after July 2012 and the correct rules had been applied.

6. Mr. Samad accepted that at the time of the application and decision paragraph 284 contained an English language requirement. This had been the case since 29 November 2010. However, the Appellant had applied for her initial visa in 2009. Therefore she should have fallen under the transitional arrangements which meant that the English language requirement did not apply. He submitted that this was the reason the judge had remitted the decision back.

7. I was referred to page 13 of the bundle which contained archive content from the UKBA website in respect of paragraph 284. The date on this document is 4 February 2015. Mr. Samad stated that he had not been able to find the transitional arrangements, but he submitted that the judge had the transitional provisions in mind in paragraph [11].

8. I gave Mr. Samad a further seven days to present further submissions regarding the transitional arrangements. Miss. Johnstone did not object to this.

9. I have received a skeleton argument from Mr. Samad. He has not provided any transitional arrangements. He accepts that paragraph 284 contains an English language requirement. He submits that the Appellant provided an English language certificate with her application but it was from a provider who was not approved by the Home Office for applications for limited leave to remain.

10. The skeleton argument refers to the "Home Office IDI Chapter 8 transitional provisions, August 2015". No copy of this has been provided. The skeleton states that these "generally allow for those who made an application under Part 8 of the Rules before 9 July 2012, to continue to rely upon the rules then, up until settlement". It is submitted that the Appellant's application falls under these transitional arrangements. It is submitted that the judge was correct to remit the case "as it is for the Respondent to state the position for those who applied for entry clearance before 29/11/2010 as to what their position would be for extension as they had been exempted from the English language requirement".

11. Further the skeleton submits that the judge was correct to remit the case as the Respondent had failed to consider family life under Appendix FM. This was not submitted at the hearing before me, and my direction was that further submissions were to be made specifically in relation to the transitional provisions.

Error of law

12. Paragraphs [11] and [12] of the decision state:

"The appellant however contends that the respondent has considered her application on the wrong basis. The appellant contends that she made an application for an extension of leave under paragraph 284 of the immigration rules and under this paragraph there is no English language requirement. The appellant argues that the respondent has failed to give proper and adequate consideration to her case.

As the English language requirement is the sole basis of the respondent's refusal and as the respondent does not appear to have considered paragraph 284 of the rules, I am of the view that the matter should be looked at again by the respondent in light of what the appellant says about the relevant paragraph under the immigration rules."

13. The reasons for refusal letter on page 1 quotes from paragraph 284 and then states:

"We note that you have provided 2 EMDQ Certificates. This test provider is not approved by the Secretary of State.

You are therefore refused under Paragraph 286 with reference to Paragraph 284 (ix) (a)".

14. I find that the judge was wrong to state that the Respondent had not considered the application under paragraph 284. It is clear from the reasons for refusal letter that, prior to considering the application under Appendix FM and paragraph 276ADE, the Respondent considered paragraph 284 and refused the Appellant's application under this paragraph as she had failed to provide the correct test certificates.

15. Although it was submitted that the Appellant did not have to meet the English language requirements of paragraph 284 because she fell under the transitional arrangements, these transitional arrangements were not provided for the appeal hearing. Despite allowing the Appellant further time, I have received no transitional provisions which support her submission. I have considered the "Home Office IDI Chapter 8 transitional provisions, August 2015" referred to in the skeleton argument. This states that the guidance applies, inter alia, to "applications made on or after 9 July 2012, by persons who were granted entry clearance or limited leave to remain under Part 8 of the Rules before 9 July 2012 and who apply for further leave on the same basis".

16. The Appellant made this application after 9 July 2012. She had been granted entry clearance prior to 9 July 2012. She applied for further leave on the basis of her marriage to the sponsor which was the same reason as she applied for entry clearance. However, the guidance states that those to whom the transitional arrangements apply will "remain subject to the immigration rules in force as at 8 July 2012". It was accepted by the Appellant's representative that paragraph 284 had changed in November 2010 to include an English language requirement. Therefore, I find that the rules in force as at 8 July 2012 included the English language requirement. I find that this guidance does not support the Appellant's case. I have been provided with no transitional provisions which indicate that the English language requirement in paragraph 284 does not apply to the Appellant.

17. Further, it is clear from the fact that the Appellant provided English language certificates with her application that she was aware of the English language requirement in paragraph 284. Her mistake was to provide English language test certificates from a provider who was not approved by the Respondent for the purposes of the application that she had made. Rather than address that, the Appellant instead submitted that she did not need to meet the English language requirement at all. However, she has acknowledged that the requirements of paragraph 284 as at the date of her application included the requirement that an English language certificate be provided.

18. It was submitted that the judge had transitional provisions in mind in paragraph [11]. However there is no reference to any transitional provisions, and I find that such a reference cannot be implied. In any event, as I have found above, the Appellant has been unable to provide any transitional provisions which are relevant to her case, so it is difficult to see how it can be submitted that the judge had these in mind. The judge states that paragraph 284 does not contain an English language requirement, but this is not the case. The judge states that the reason she is remitting the appeal is because the Respondent has not considered paragraph 284. However I have found above that the Respondent did consider paragraph 284, but found that the Appellant had provided English-language certificates from the wrong provider.

19. I find that the judge made a material error of law when she found that the Respondent had failed to consider paragraph 284, and when she stated that paragraph 284 contained no English language requirement. Accordingly I set the decision aside.

Remaking in respect of paragraph 284

20. I find that the Respondent considered the Appellant's application under paragraph 284. However, the Appellant had provided English language test certificates from a provider which was not approved by the Respondent. I therefore find that the Respondent was correct to refuse her application on this basis. The Appellant has not provided English-language test certificates from any approved provider. I therefore find that the Appellant has failed to show on the balance of probabilities that she meets the requirements of paragraph 284.

21. The Respondent then went on to consider the Appellant's application under Appendix FM and paragraph 276ADE. The Respondent also considered whether there were any exceptional circumstances in the Appellant's case. However given that the judge allowed the appeal as she did, she did not consider Appendix FM, paragraph 276ADE, or any appeal under Article 8 outside the immigration rules.

22. Paragraph 7.2 of the Practice Statement dated 10 February 2010 contemplates that an appeal may be remitted to the First-tier Tribunal where the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put to and considered by the First-tier Tribunal. Given the nature and extent of the fact-finding necessary to enable this appeal to be remade, having regard to the overriding objective, I find that it is appropriate to remit this case to the First-tier Tribunal.

Notice of Decision

The decision involves the making of an error of law and I set it aside.

I remake the appeal dismissing it under paragraph 284 of the immigration rules.

In relation to Appendix FM, paragraph 276ADE and any consideration of Article 8 outside the immigration rules, the appeal is remitted to the First-tier Tribunal for rehearing.

Signed Date 29 March 2016

Deputy Upper Tribunal Judge Chamberlain