Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/05579/2013
OA/05582/2013
OA/05586/2013
OA/05589/2013

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 21st October 2014
3rd November 2014

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Before

DEPUTY UPPER TRIBUNAL JUDGE FRENCH

Between

NILOFA ALAM (FIRST APPELLANT)
SHAHMIMUL ALAM (SECOND APPELLANT)
NAYMUL ALAM (THIRD APPELLANT)
SUMIYA ALAM (FOURTH APPELLANT)
Appellants

and

ENTRY CLEARANCE OFFICER - DHAKA

Respondent
Representation:

For the Appellants: Mr M Azmi, instructed by Messrs Samad & Co
For the Respondent: Mr N Smart, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellants are citizens of Bangladesh born respectively on 1st May 1972, 20th January 1995, 14th July 1998 and 3rd June 2007. The First Appellant is married to the Sponsor Shah Alam, who is settled in the United Kingdom. The First Appellant and Sponsor are the parents of the other Appellants.
2. In November 2012 the Appellants applied for entry clearance to come to the United Kingdom for settlement as the wife and children respectively of the Sponsor. Those applications were refused on 21st January 2013 as the ECO was not satisfied that the Sponsor met the financial requirements of the Immigration Rules. The Appellants appealed under Section 82 of the Nationality, Immigration and Asylum Act 2002.
3. In a review carried out by the Entry Clearance Manager after the lodging of the Notices of Appeal the refusal on financial grounds was maintained but the ECM went on to comment on the English language certificate provided by the First Appellant in the following terms:
"I acknowledge that Appellant 1 provided a copy of her English language certificates in speaking and reading, writing and listening. However although the authenticity of the City and Guilds certificate was not challenged by the Entry Clearance Officer at the time of decision I would highlight that subsequent investigations conducted by City and Guilds and UK Visas and Immigration Dhaka have revealed inconsistencies in testing in Bangladesh. As a result of these investigations I am not satisfied that the documents which the Appellant has provided satisfactorily demonstrate that she has obtained the qualifications mentioned on the certificate. The inconsistencies of testing have now been addressed by City and Guilds in Bangladesh who have agreed to offer free re-testing to all affected visa applicants. The Appellant has been issued with a letter explaining this and has been offered a gratis re-test; a copy of this letter is included with the appeal bundle. I would politely request that the Immigration Judge refers to the information provided under Section 108 and considers the doubts over the English language requirement when hearing the case."
4. The appeal was heard before First-tier Tribunal Nixon on 6th November 2013. At the commencement of the hearing the judge indicated that, having looked at the documents provided, she was prepared to accept that the Appellants met the financial requirements of the Immigration Rules and the only issue was whether the First Appellant had provided an acceptable English language certificate. She recorded that the Appellant's representative said that the First Appellant had been due to sit a further test on 4th November 2013 but due to a three day strike in Bangladesh it had been cancelled and he applied for an adjournment to enable her to take the test. He said that she had not booked to take the test earlier as she had been pre-occupied with the children's examinations and she had not booked it before that time as she had needed to 'prepare for the test' and booking the test took time as there were so many applicants. The judge refused the application for an adjournment stating that she did not accept the explanation that the Appellant needed to prepare for the test for the preceding six weeks as she claimed to already have passed such a test. At that stage she recorded (in paragraph 5 of her determination) "as a consequence Mr Samad indicated that the appeal would be on human rights only as the Appellant could not meet the requirements under the Rules."
5. In her conclusions the judge noted (at paragraph 15(4)) that the First Appellant had failed to obtain an acceptable English language certificate and could not meet the criteria laid down by the Immigration Rules. With regard to Article 8 she looked at the questions posed by Lord Bingham at paragraph 17 of Razgar [2004] UKHL 27. She found that family life was established but then stated that she did not find that there would be any interference by dint of the refusal. The Sponsor had chosen to leave his family in 2003 to come to the UK and had only returned on a few occasions to visit them. They had continued to have a relationship via modern communication methods for a decade and there was nothing to suggest that this could not continue. She did not perceive any breach of Article 8 rights. She considered the best interests of the children would be to remain with their mother with whom they had spent all of their lives in the country where they had always lived. The appeals were dismissed both under the Immigration Rules and with regard to Article 8 ECHR.
6. The Appellants applied for permission to appeal. It was contended in the grounds that
(a) The judge had made a material misdirection of law or there had been a procedural irregularity as the English language requirement had not been raised in the Grounds of Refusal but only in the ECM review and there had been a reference to Section 108 of the 2002 Act. It was not apparent from the determination whether the judge had had sight of the information the ECM was referring to and whether she had dealt with the matter under Section 108. It was difficult to see how a re-test would have been relevant as that would have been post-decision. It was said that the judge had erred in her approach.
(b) The judge made a misdirection with regard to Article 8 in finding that family life was established but there would be no interference by reason of the refusal, reliance being placed upon AG (Eritrea) v SSHD [2007] EWCA Civ 801.
(c) She made a material misdirection of law in her approach to proportionality and by not following case law in that regard. Failing to consider whether the state could justify the exclusion of foreign spouses necessary and proportionate in pursuit of a legitimate aim.
(d) She made inadequate findings on a material issue as the judge had not given adequate consideration to the best interests of the children. Permission was initially refused by a Judge of the First-tier Tribunal but the application was renewed, slightly expanded, to this Tribunal.
7. Permission was granted on 31st March 2014 by Upper Tribunal Judge O'Connor. He found it arguable that the judge at first instance had erred in finding that the ECO's decision would not amount to an interference with the Appellant's rights to family life with the Sponsor, having regard to AG (Eritrea). The judge did not appear to have considered proportionality. The issues raised in (d) and (c) fell to be considered together. He could see no merit in Ground (a) but permission was not refused. Following that grant of permission the respondent filed a response under Upper Tribunal Procedure Rule 24 contending that the judge directed herself appropriately and any error under Article 8 was not material as the Appellants would have had to have shown compelling or exceptional circumstances in order to succeed.
8. At the commencement of the hearing before me I mentioned to Mr Azmi a letter, which was on the Tribunal file, from the Head of International Operations at the City and Guilds of London Institute dated 20th May 2013, addressed to UK Visas and Immigration in Dhaka and concerning the recognition of City and Guilds International English language certificates. The central paragraph of that letter reads as follows
"In respect to City and Guilds IESOL and ISESOL certificates presented as evidence of English language proficiency as part of all new and pending visa applications the following shall apply:
(1) All certificates relating to an examination conducted in Bangladesh with an issue date prior to 1st October 2012 will not be accepted as evidence of a pass in English language proficiency for visa applications.
(2) All certificates from the following City and Guilds centres will not be accepted as evidence of a pass in English language proficiency for visa applications regardless of date of issue: 821460 - Advanced Hotel Management Institute; 821469 Tommy Miah's Hospitality Management Institute; 821470 UK education.
The above policy has been agreed to protect the integrity of the City and Guilds examination system. Applicants affected by the policy will be required to be re-tested by City and Guilds as any original certificates submitted as part of visa application will be cancelled."
9. The certificate relied on by the First Appellant in her application was dated 9th September 2012. The centre involved was Advanced Hotel Management Institute centre number 821460. Mr Azmi had not previously seen that letter. He questioned what information had been before the judge. There had been no reference in the determination to an application under Section 108 of the 2002 Act. He also sought leave to adduce a certificate showing that the Appellant had now passed the English language test, the new certificates being dated 9th December 2013. Both representatives accepted that there had been no challenge to the judge's findings with regards to the financial requirements of the Rules.
10. Mr Azmi continued that the ECM had offered a re-test for the First Appellant which suggested that if she had supplied a new certificate it would have been accepted. He said it was also difficult to see whether the ECM was raising an allegation of forgery or not. All that was said was that there were inconsistencies. There was no mention of the Section 108 procedure in the determination. The judge had not followed the guidance in the reported determination OA (Alleged Forgery - Section 108 Procedure) Nigeria [2007] UKAIT 00096. It was unclear whether the judge had considered documents from City and Guilds or not. He submitted there was an error of law in that regard.
11. With regard to Article 8 the judge had found there was no interference and therefore proportionality was not considered. That he said was an error of law as there was clearly a relationship between the Appellant and her children and her husband and their father and the question was whether the Secretary of State could justify as necessary and proportionate their exclusion. The decision clearly had an impact on family life.
12. In response Mr Smart relied upon the Rule 24 response and submitted there was no error. With regard to Section 108 of the 2002 Act the judge had not mentioned it because it was not alleged that there were forged documents. The First Appellant claimed to have passed the English language test but the certificate had been withdrawn by City and Guilds. The judge looked at the explanation and considered why a re-test had not been booked earlier. She was clearly concerned that the Appellant said that she needed six weeks to study for the re-test. She was entitled to reach the conclusions she did. The representative at the hearing had accepted that the requirements of the Rules were not met and had gone on to argue Article 8 issues.
13. Mr Smart accepted that the consideration of Article 8 had been brief. It was the case that one of the children had reached the age of 18 in January of 2013 but the relevant date was the date of decision. It was a situation of the family's own choosing and clearly that weighed significantly with the judge.
14. In reply Mr Azmi said that in the ECM review there was a specific reference to Section 108 and therefore indirect allegations of forgery and the judge had not expressly referred to any documents. He said that the current test certificate had been submitted to the ECO in Dhaka but no response had been received. If I found an error of law with regard to the Section 108 point he said the appropriate course might be to remit the matter to the ECO in Dhaka to reconsider.
15. As to Article 8 the older child was now over the age of 18 but was under 18 at the date of application. The financial requirements were met. The English language requirements for the First Appellant had now been met. There was a clear desire of the family to be together and the Sponsor could support them. The wife could now satisfy the requirements of being able to speak English. The best interests of the two younger children would be to be with their father.
16. A final point raised by Mr Smart was that Section 117B of the 2002 Act now set out expressly that it was in the public interest that persons who sought to enter or remain in the United Kingdom were able to speak English. His contention was that this requirement applied not only to adults but also to children. Mr Azmi commented that he would be surprised if that was the intention of the legislation.
17. The first issue raised in the grounds of appeal related to the English language certificate in respect of the first appellant. This was clearly referred to in the ECM review. It is unfortunate that the judge did not refer specifically to it but on balance I find that the letter of 20th May 2013 was before her. It was already on the file before me and there was no correspondence indicating that it had been produced other than by the Presenting Officer at the hearing at first instance. On a fair reading the import of that letter is that the certificate issued to the First Appellant could not be relied upon and was invalid. The certificate was dated before 1st October 2012 and furthermore the centre which had presented the First Appellant was one of those specifically mentioned as not being accepted for producing evidence of a pass notwithstanding the date. That was an assertion, supported by evidence, that the certificate presented was not to be relied upon and did not meet the requirements of the Rules. The certificate had been invalidated by the City and Guilds of London Institute and an offer made for a free re-test to take place.
18. There is no indication that the Section 108 procedure was invoked at the hearing and there was no reason that it should have been as the letter from City and Guilds contains no secret information. It is of significance that at the hearing the Appellants' representative Mr Samad did not seek to argue that the original certificates were valid but only sought an adjournment for a further test to be taken. Had it not been accepted on behalf of the First Appellant that the original certificate was invalid he could not possibly have pursued that route. As it was he indicated that the appeal would be on human rights grounds only. I share the view of Upper Tribunal Judge O'Connor that there is no substance in the Section 108 point.
19. It is then argued that the judge erred in her approach to Article 8. She accepted that there was family life existing between the Sponsor, his wife the First Appellant, and the children. However she found that there would not be an interference with that relationship as a result of the refusal. That view was arguably in error taking account of the comments of Lord Justice Sedley in AG (Eritrea) as the interference (or lack of respect) was more than simply technical or academic.
20. The point was raised in the Rule 24 reply that any error on the part of the judge in this regard was not material as it had not been shown that there were compelling or exceptional circumstances to go beyond the Rules (it has been noted that these applications were made in November of 2012 some time after the amendments to the Immigration Rules introduced in July of that year).
21. There has been a good deal of recent jurisprudence on the question of going beyond the Rules to consider Article 8 issues. The guidance in Gulshan (Article 8 - New Rules - Correct Approach) [2013] UKUT 00640 and Nagre v SSHD [2013] EWHC 720 (Admin) indicates that if an Appellant does not meet the requirements of the Rules there need to be good grounds shown for going beyond the Rules to consider issues under Article 8 and only if there are compelling circumstances or the results would be unjustifiably harsh consequences should the appeal be allowed on that basis. That approach has been approved by the Court of Appeal in Haleemudeen v SSHD [2014] EWCA Civ 558, although in MM (Lebanon) and Others v SSHD [2014] EWCA Civ 985 Lord Justice Aikens (at paragraph 128) stated that he could not see much utility in imposing a further intermediary test; if an applicant could not satisfy the Rule then there either was or was not a further Article 8 claim.
22. In considering whether the judge erred materially in failing to go on to consider proportionality under Article 8 I have had regard to the remainder of the steps outlined by Lord Bingham at paragraph 17 of Razgar [2004] UKHL 27. The decision (as amplified by the ECM) is in accordance with the law, being made under Statute and the Immigration Rules. It is in pursuance of legitimate aims being fair and consistent immigration control, which would come within the ambit of prevention of disorder or crime, maintenance of the economic wellbeing of the country and protection of the rights and freedoms of others. It is now made explicit by Section 117B(1) of the 2002 Act that the maintenance of effective immigration controls is in the public interest.
23. In considering proportionality I note that the judge did address the best interests of the children (although she did not expressly deal with proportionality as such). She considered that their best interests were served by remaining with their mother with whom they had spent all of their lives in the country in which they had always lived. Whilst that view might be expanded it is not irrational or perverse. The children are living in the environment they have been in for the whole of their lives. They have been provided for by their father who works in the UK. The decision of the parents to conduct their family life in that manner was their own to take and the father is able to keep in touch with the family and to visit. There is no evidence of any neglect or abuse of the children or that there are unmet needs that should be catered for. I have considered the guidance in Mundeba (S55 and Paragraph 297(i)(f)) Democratic Republic of Congo [2013] UKUT 88 that continuity of residence is another important factor. For the children now to come to the United Kingdom would involve disruption in their living arrangements, their friendships and their education. Viewing their interests as a primary consideration it has not been shown that their welfare militates towards a grant of entry clearance.
24. It is accepted that the Sponsor as at the date of decision was able to meet the financial requirements of the Rules. However the First Appellant was not in possession of an English language test certificate which was regarded as valid. The judge was clearly concerned that it was claimed that the First Appellant would have required a further six weeks' study before she could take a re-test. That she has now passed the test (in December of 2013) does not show that she had the necessary accomplishments as at the date of application or decision. The significance of the English language test and the fact that it is not a disproportionate requirement has been established in Bibi and Another v SSHD [2013] EWCA Civ 322. As was pointed out by Mr Smart it is now explicitly stated at Section 117(B)(2) of the 2002 Act that it is in the public interest that persons who seek to enter or remain in the United Kingdom are able to speak English. I make no comment on whether that requirement applies also to minors. These were composite applications made together on the basis that if successful both parents would be in the United Kingdom with their children. The First Appellant did not meet the requirements of the Rules in respect of the English language qualification. Viewing the issues as a whole the refusal of the applications was not a disproportionate interference with family life. I have therefore come to the view that although it is arguable that the judge should have considered proportionality her failure to do so was not material to the outcome on the facts which stood before her.
Notice of Decisions
25. The judge at first instance did not make a material error on a point of law and her decision that the appeals be dismissed both under the Immigration Rules and under Article 8 ECHR therefore stands.

No anonymity order was requested and none is made.

Signed Date 31 October 2014

Deputy Upper Tribunal Judge French