Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/03832/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 September 2016
On 06 October 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

sitan diaoune
(NO ANONYMITY DIRECTION)
Appellant
and

ENTRY CLEARANCE OFFICER - ACCRA

Respondent

Representation:

For the Appellant: Ms O Revill Counsel instructed by Lords Solicitors LLP
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Guinea born on 1 January 1990. She applied to join her husband, the sponsor, in the United Kingdom on 22 July 2014. The application was refused on 16 November 2014. The respondent considered the appellant was not exempt from the English language requirement under paragraph E-ECP.4.2. She was not a national of a majority English speaking country noted in the Rules and did not hold a relevant qualification. In her application she had stated she had passed a six months' English language programme but the respondent considered that neither of the schools or colleges attended were on the list of approved English language test providers. There were no exceptional circumstances why the appellant could not undertake an approved English language test. The application was accordingly refused under EC-P1.1.(d) of Appendix FM(E-ECP.4.1).

2. The appellant appealed and her appeal came before a First-tier Judge on 2 March 2016.

3. The judge heard oral evidence from the sponsor which is summarised at paragraphs 17 to 19 of the determination as follows:

"17. The sponsor adopted his written statements dated 01/02/2016. He said that he travelled to Conakry with his wife and that they were told that there was no English Test centre. He states that his wife has obtained two English certificates but he has been told that they are not issued by the test centre approved by the UKBA. He said that they also went to Sri Leone (SL) but there no English Test Centre there either. He said that they submitted his wife's application in SL but the decision was made in Accra, Ghana.

18. In cross-examination, the sponsor said his wife's application was completed by someone for them in SL (vague). He said that his wife had sent all the details to him in the UK and he had asked his lawyer for advice. He said that the application was made on 25/08/2014, his wife had travelled to SL in order to make the application. He said that before his wife made her application, they were in contact with each other, he went to the lawyer to seek advice for his wife's application.

19. The sponsor said that his lawyer told him about the English language test and that he had been sent a Home Office letter about the requirements. When asked if he accepted that his wife did not have a recognised English test, the sponsor said that other people have had visa given to them on the same test that his wife had done. When asked if his wife had applied for an exception, he made no reply. He said that he had made number of application for his wife in the past and if they fail in this appeal, they will continue to make further applications (the sponsor became very emotional)."

4. The judge concluded his decision as follows:

"23. I heard oral evidence from the sponsor, his evidence is noted above. The sponsor was unable to say as to why his wife could not take English test at a centre which is recognised by the respondent. He said that there were no such centres in Guinea or SL. He did not say why if there is no English language centre in Guinea, his wife did not apply for an exception. There is evidence in the appellant's bundle where the English test could be taken but the sponsor did not give any reason as to why his wife could not travel to other parts of Africa to take the required test or as to why she did not apply for an exception, which she could have done.

24. The appellant is not exempt from the English language requirements under paragraph E-ECP4.2. In addition she is not a national of a majority English speaking country listed in paragraph GEN 1.6 and has not passed an English language test (A1 Level of Common European Framework) with a provider approved by UKBA and/or do not hold an academic qualification recognised by NARC UK to be the equivalent to the standard of a Bachelor's or Master's degree or PhD in the UK which was taught in English, therefore she needs to provide the English language certificate from a provided recognised by the UKBA.

25. There are exceptions if it is not practicable or reasonable for an applicant to take an approved A1 test in another country. This may be where it may be difficult for them to obtain an exit visa or restrictions make it difficult for the applicant to travel abroad. The full requirements for the exceptions to apply are set out in guidelines which are in the appellant's bundle. The applicant has to set out their exceptional circumstance to the Entry Clearance Officer before they make their application for entry clearance. The appellant in this case has made no such application.

26. On the evidence before me, on the balance of probabilities, for the above-mentioned reasons, I am not satisfied that the appellant meets all the requirements of paragraph EC-P1.1(d) (E-CP.4.1.).

27. As for the appellant's Article 8 rights to family and private life, she has never lived in the UK, the sponsor travels to Guinea to be with her. The appellant has made number of previous applications. I find that either the appellant can travel to another country to take a recognised test or apply for an exception under the rules, if she thinks she meets the requirements of the exceptions. I find that the appellant's family and private life can continue in Guinea."

5. There was an application for permission to appeal where it was pointed out that the application had been submitted on line on 22 July 2014 and this was before there had been a change in policy on the requirement of English language from applicants from Guinea. The appellant had had the benefit of an automatic exemption from the English language requirement because she was a long-term resident of Guinea which had no approved A1 test provision. The appellant had not been required to submit any evidence at all of her competence in the English language.
6. In relation to Article 8 it was submitted that the decision was not proportionate and the guidance that had been given to the respondent as to how the Rule should have operated at the time of the appellant's application had not been considered - the judge had erred in finding that the appellant was not exempt from the language requirements.
7. A response was filed by the Entry Clearance Officer on 8 September 2016. The First-tier Tribunal Judge had referred to the policy at paragraph 25 of his decision and has properly found that the appellant was required to set out exceptional circumstances to the Entry Clearance Officer before they made the application and also to travel to another country to take a recognised test. More than mere inconvenience or reluctance to travel was required and it was clear that the appellant did not have the relevant English language test results and failed to show why she should be exempt from the requirement.
8. At the hearing Counsel relied on her skeleton argument. It was not disputed that there was no approved test centre in Guinea. She referred to the April 2013 Immigration Directorate Instructions which she submitted applied to the appellant's application on the date it was submitted - 22 July 2014. The concluding paragraph of paragraph 5.7 of the Instructions read as follows:
"Applicants who are nationals of a country with no test centre and who have made an application for entry clearance/leave to enter from that country will be exempt from the requirement. This exemption does not apply to applicants applying in-country for leave to remain as test centres and facilities to learn English are readily available in the UK."
9. Counsel then referred to paragraph 7.2 of the Instructions introduced in July 2014, the third paragraph of which reads as follows:
"Applications submitted before 24 July 2014 can continue to rely on the exceptional circumstances exemption if there were no approved A1 English language test available in their country of long term residence at the date of application."
10. There was no need to apply for an exemption and the judge and the Entry Clearance Officer had been wrong in taking the point.
11. In relation to Article 8 the judge's consideration had been very brief and it was clear there had been an interference with the protected rights.
12. Miss Isherwood submitted that at part 7 of the application the appellant had been asked whether she was exempt from the English language requirement and had replied "No". She was then asked how did she meet the English language requirement and replied "Completed a six months English language programme as a second language level 1 at Canadian College of Business and Computers in Conackry Guinea."
13. The sponsor's evidence had been found to be vague.
14. In the second paragraph of the July 2014 guidance it was made clear that the applicant must demonstrate
"In Box 8.1 in Part 8 of the VAF 4A form for an entry clearance application as a partner or parent, that as a result of exceptional circumstances they are unable to learn English before coming to the UK or it is not practicable or reasonable for them to travel to another country to take an approved English language test. Partners of members of HM Forces must demonstrate this in Box 9.1 of the VAFAF form."
15. In addition evidence of the nature and impact of the exceptional circumstances needed to be provided clearly. Examples of situations were given including the example 'Is a long term resident of a country with no approved A1 test provision and it is not practicable or reasonable for the applicant to travel to another country to take a test (see Section 7.2 below).'"
16. The judge's approach could not be faulted and there was no material error of law in relation to his conclusion on Article 8. She referred to Quila v Secretary of State [2011] UKSC 45 applied in Secretary of State v SS (Congo) [2015] EWCA Civ 387. The appellant could travel to another country and comply with the Rules.
17. In reply, Counsel submitted that the appellant had not been required to demonstrate she was exempt as a long term resident of Guinea. The guidance in the July 2014 Instructions at paragraph 7.1 about what the applicant needed to demonstrate in Box 8.1 referred to the position after the appellant had submitted her application. She was not required to provide this evidence in her circumstances. The respondent's decision had not been in accordance with the law and the case was governed by the former Instructions.
18. At the conclusion of the submissions I reserved my decision. I am grateful for the clear submissions made by both sides in relation to this matter.
19. It does not appear to be the subject of dispute that the appellant's application was submitted prior to the change in the policy reflected in the Immigration Directorate Instructions. At that stage it was clear that the appellant was exempt and that exemption was preserved as is again clear from paragraph 7.2 of the July 2014 exemptions.
20. In Part 7 of the application made by appellant it is clear that she should have written "yes" rather than "no" in answer to the question "Are you exempt from the English language requirement?"
21. Is this fatal to her case?
22. The entry clearance was refused on the basis "You are not exempt from the English language requirement under paragraph E-ECP.4.2." The evidence provided did not demonstrate that the appellant had met the requirements of the English language section of our application or that there were any exceptional circumstances as to why she could not undertake an approved English language test.
23. In fact, the appellant was exempt. In the Entry Clearance Manager's decision it was noted that the grounds of appeal had stated that the decision made by the Entry Clearance Officer was not in accordance with the law or the Immigration Rules and continued
"However, no specific reasons have been cited in support of this assertion. Therefore it has not been possible to analyse why the appellant considers this to be the case. Nevertheless, I have carefully reviewed the decision and supporting evidence available to me and I am satisfied that the ECO applied the correct provisions of the Immigration Rules and that the decision is in accordance with the law, contrary to the appellant's unsubstantiated assertions.
The grounds of appeal assert that discretion should have been exercised differently. This implies that the appellant does not meet the requirements of the relevant Rule and thus reliance is being placed [on] discretion as an alternative. However no explanation is offered as to why the appellant believes this to be the case. In the absence of further evidence I have in any event reviewed the decision and supporting evidence available to me and I am satisfied that the decision is correct. I am not therefore prepared to exercise discretion in the appellant's favour."
24. The Entry Clearance Manager also noted that the appellant had provided a certificate of attendance on an English language course but the establishment was not on the list of approved English language test providers and accordingly the appellant had not met the English language requirement.
25. The error in this case is a simple one. The respondent had not applied the relevant policy that was applicable to the appellant's application made shortly before the change of policy on 24 July 2014. The appellant had submitted her application before 24 July 2014 and could continue to rely on the exemption. Even if this point had not been picked up by the Entry Clearance Officer, on a careful review by the Entry Clearance Manager it should have been apparent that the appellant had the benefit of the former policy.
26. I do not consider it fatal that the appellant made a mistake. It was clear on the face of the application that it was submitted prior to 24 July. It was clear on the face of the application that the appellant was a long term resident of Guinea. She should not be in a worse position by having undertaken courses which were not effective under the revised policy. In stating that the appellant was not exempt from the language requirement there was a misdirection on behalf of the respondent. The decision was not in accordance with the law.
27. There was a further opportunity at the hearing before the First-tier Judge for the respondent's representative to correct matters.
28. The First-tier Judge's attention was not drawn to the underlying failing in the respondent's decision. However, the respondent's decision and decision making process was fundamentally flawed because of the application of the wrong policy to the appellant's application.
29. In short, the fact that the error was not appreciated by either side does not make it less of an error. The respondent as I have pointed out had at least one opportunity to correct it.
30. The appellant's appeal is allowed on the basis that the decision of the respondent was materially flawed in law. This error affected the decision of the First-tier Judge whose attention was not drawn by the respondent to the error.
31. I remake the decision of the First-tier Judge.
32. The appeal is allowed to the extent that it is remitted to the respondent to reach a lawful decision on the basis of the policy that applied at the date of the appellant's application.
33. Appeal is allowed as indicated.
Anonymity Order
34. The First-tier Judge made no anonymity directions and I make none.
Fee Award
35. The First-tier Judge made no fee award and in the particular circumstances of this case I do not find a fee award to be appropriate.

Signed Date 5 October 2016

G Warr, Judge of the Upper Tribunal